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Decision No. 14,741

Appeal of R.C., on behalf of his son E.C., from action of the Board of Education of the New Paltz Central School District regarding student discipline.


Decision No. 14,741

June 19, 2002


Kossover Law Offices, LLP, attorneys for petitioner, Andrew Kossover, Esq., of counsel


Shaw & Perelson, LLP, attorneys for respondent, Garrett L. Silveira, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the New Paltz Central School District ("respondent") affirming the suspension of his son, E.C., for the remainder of the 2000-2001 school year and seeks expungement of the suspension from his son's record. The appeal must be dismissed.

On March 1, 2001, respondent"s superintendent notified petitioner that E.C. had threatened the health, safety and welfare of staff and students at the New Paltz High School by: 1) conspiring with two other high school students while in the school cafeteria to wrongfully possess and distribute one or more handguns; 2) knowingly and wrongfully possessing one or more handguns at or near 686 Albany Post Road, New Paltz, on or about or between November and December 2000; and 3) causing the high school to be evacuated and searched by police on February 27, 2001 when administrators received information that one or more of those handguns might be present in the high school. E.C. was also charged with insubordination for violating the New Paltz behavior code that prohibits the possession of weapons or look-alike weapons and the distribution of unauthorized or illegal substances or materials.

A superintendent's hearing was held on March 30, April 5 and April 23, 2001. On April 25, 2001, the superintendent found E.C. guilty of the charges and suspended him for the remainder of the school year. Petitioner appealed to respondent. On June 1, 2001, respondent annulled petitioner's suspension from March 1 through March 7 for reasons not included in the record, but otherwise upheld the superintendent's determination. This appeal ensued.

Petitioner asserts that the superintendent lacked the authority to adjudicate this matter because no unlawful conduct occurred on school grounds. He contends, moreover, that there is insufficient evidence that E.C. engaged in any unlawful conduct. Petitioner alleges that: the superintendent was biased against E.C. and failed to recuse himself upon request; respondent's attorney met with the superintendent exparte on several occasions; the charged conduct does not violate the New Paltz behavior code; E.C. was denied due process; and E.C."s penalty was excessive. He requests that respondent's determination be reversed and E.C."s record expunged.

Respondent asserts that petitioner failed to meet his burden of establishing a clear legal right to the relief requested; E.C. was afforded due process; the hearing was properly conducted; the determination of guilt was based on competent and substantial evidence; and the penalty was appropriate.

There is no merit to petitioner"s argument that the superintendent lacked the authority to adjudicate this matter because the alleged unlawful conduct occurred off school grounds. As I stated in Appeal of Ravick (40 Ed Dept Rep 262, Decision No. 14,477):

Recent case law has recognized that students may be disciplined for conduct that occurred outside of the school (Matter of Coghlan v. Board of Education, 262 AD2d 949 [4th Dept 1999], citing Pollnow v. Glennon, 594 F.Supp. 220, 224 [S.D.N.Y. 1984], aff'd, 757 F.2d 496 [2d Cir. 1985]). The Fourth Department's holding in Coghlan is in accord with the longstanding determination by the Commissioner of Education that students can be disciplined for off-campus conduct that may endanger the health or safety of pupils within the educational system or adversely affect the educative process (Appeal of Orman, 39 Ed Dept Rep 811, Decision No. 14,389; Appeal of Mangaroo, 33 id. 286, Decision No. 13,050; Appeal of Pollnow, 22 id. 547, Decision No. 11,069; Appeal of Rodriguez, 8 id. 214, Decision No. 8015).

Thus, the superintendent clearly had the authority to adjudicate this matter.

A decision to suspend a student from school pursuant to Education Law "3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello CSD v. Commissioner of Educ., 91 NY2d 133; Bd. of Educ. of City School District of City of New York v. Mills, ___ AD2d ___, 741 N.Y.S.2d 589; Appeal of C.D., 41 Ed Dept Rep ___, Decision No. 14,642). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello CSD v. Commissioner of Educ., supra; Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241; Appeal of Uebel, 38 id. 375, Decision No. 14,058). Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Gray v. Adduci, 73 NY2d 741; Eagle v. Paterson, 57 NY2d 831; Appeal of D.C., 41 Ed Dept Rep ___, Decision No. 14,684).

In his written decision, the superintendent stated that his determination of guilt "was based upon my careful and thoughtful consideration of the weight of the credible evidence on the record. The testimony of the police officers, the district administrator, the student and staff member, along with the documentary evidence, provided substantial, credible evidence on the record of [E.C.'s] guilt . . .." Since the hearing officer is in the best position to determine matters concerning witness credibility, the Commissioner will not substitute his judgment for that of the hearing officer unless the findings are not supported by facts in the record (Appeal of Oliver, 39 Ed Dept Rep 817, Decision No. 14,392; Appeal of a Student Suspected of Having a Disability, 39 id. 127, Decision No. 14,192; Appeal of Pinckney, 37 id. 284, Decision No. 13,860).

At the hearing, a cafeteria monitor, the assistant high school principal, a high school student, a detective and the Chief of the New Paltz Police Department all testified. Petitioner"s documentary evidence consisted of a newspaper article dated the day after the high school evacuation, three letters from petitioner"s counsel to the superintendent, a letter from the superintendent to a parent, and letters to the superintendent from community members. Respondent"s documentary evidence consisted of the notice of hearing and statement of charges, the behavior code, an affidavit by E.C., a stipulation of settlement to "3214 charges, E.C."s anecdotal record, and a written hearsay statement made to the police on February 27, 2001 by another student (B.G.) that allegedly contained B.G."s admission that he and E.C. discussed obtaining and possessing guns. None of the documentary evidence, including B.G."s statement, was submitted as part of record before me. Based on the parties" submissions, and my review of the hearing testimony, I find no reason to substitute my judgment for that of the superintendent.

However, before a student is suspended for more than five days, he or she has a right to a fair hearing that includes the right to cross-examine witnesses against him (Education Law "3214[3][c][1]; Appeal of D.C., supra; Appeal of Coleman, 41 Ed Dept Rep ___, Decision No. 14,628; Appeal of Parker, 34 id. 379, Decision No. 13,351). By permitting the district to introduce B.G."s written statement in lieu of his live testimony, the superintendent deprived petitioner of the opportunity to cross-examine B.G. (see, Appeal of Parker, supra). Nonetheless, the superintendent clearly based his determination on all the witness testimony and documentary evidence, which included much more than just B.G."s statement, and which is sufficient to sustain the charges. Thus, I find harmless his error in relying in part on the written statement. However, I remind respondent that, in the case of a student disciplinary hearing, it is improper for the hearing officer to consider a witness"s written statement unless the witness is available for cross-examination.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of C.D., supra). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner"s judgment for that of the board (Id.). Weapon possession by students cannot be tolerated under any circumstances, especially in light of recent violent events in our nation"s schools. Based on the record before me, I find that a suspension for the remaining 2 months of the school year is not so excessive as to warrant the substitution of my judgment for that of respondent.

I have reviewed petitioner's remaining contentions and find them without merit.