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Decision No. 14,888

Appeal of D.J., on behalf of her son Y.J., from action of the Board of Education of the Sweet Home Central School District and Superintendent James Sheehan regarding student discipline.



(June 19, 2003) 

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for respondents, Robert J. Feldman, Esq., of counsel 

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sweet Home Central School District ("respondent board") and its superintendent ("respondent superintendent") to suspend her son from school.  The appeal must be dismissed.

Petitioner"s son, Y.J., became a resident of the Sweet Home Central School District in the summer of 2001 and enrolled in the Sweet Home High School ("Sweet Home") for the 2001-2002 school year.   Y.J. had previously attended Turner Carroll, another local high school. 

In the Fall of 2001, friction developed between Y.J. and P.J., another senior at Sweet Home.  In early October, Y.J. and E.T., a close friend of his from Turner Carroll, exchanged words with P.J. in the hallway of Sweet Home.  P.J. reported this incident to one of Sweet Home"s assistant principals.  The following day, the assistant principal met with Y.J. to discuss the tension between the two youths and instructed Y.J. not to have friends from Turner Carroll pick him up at school.   Y.J. agreed to comply with this directive.

Unfortunately, the tension between Y.J. and P.J. did not abate.  Each student received a three-day suspension on October 24, 2001 after having a heated confrontation in the hallway.  The two also had a confrontation over the ensuing weekend.  On Monday, October 29, 2001, the Sweet Home principal met with both students and their mothers and encouraged the students to put the matter behind them and avoid further confrontation.  Both students agreed to do so.  Apparently, Y.J. was again reminded at the meeting not to bring non-Sweet Home students on campus.

On October 31, 2001, shortly before dismissal, P.J. called the assistant principal"s office from his car to report that he believed that Y.J. and a number of his friends from Turner Carroll were waiting in the Sweet Home parking lot to "get him."  The call prompted school personnel to investigate.  One of respondent"s assistant principals encountered approximately six youths who appeared to be Turner Carroll students near one entrance to the high school.  The youths claimed that they had come to pick up Y.J. for a job interview.  The assistant principal asked them to leave the premises and escorted them to the parking lot, where he discovered a second group of Turner Carroll students approaching another building entrance.  When confronted, they also claimed that they were there to pick up Y.J. for a job interview.  This second group was also instructed to leave the school premises.  While administrators were confronting these groups, Y.J. came outside, and according to the hearing testimony of an administrator, "waive[d] off" another carload of youths and yelled "it"s still on"different place."  In total, administration officials reported seeing approximately four carloads of Turner Carroll students at Sweet Home that afternoon.  One of them was E.T., Y.J."s close friend.  By all accounts, the Turner Carroll students left the Sweet Home campus as directed by school officials without incident.  School officials detained Y.J. at school and summoned petitioner to pick him up.

By letter dated November 2, 2001, respondent superintendent advised petitioner that Y.J. was being charged with "gross insubordination" and that a superintendent"s hearing would be held on November 6, 2001. Petitioner and her son appeared at the hearing without an attorney and agreed to proceed on condition that respondent hold another hearing in the event that petitioner subsequently retained counsel.  After taking testimony from a number of witnesses and considering written statements, respondent superintendent found Y.J. guilty of gross insubordination and permanently suspended him from school.  He concluded that Y.J. planned to have his friends gather at Sweet Home to "get" P.J.  He found this to be a violation of the principal"s directive of October 29, 2001, to follow school regulations, including the rule that friends who do not attend Sweet Home may not enter Sweet Home property.  Y.J. was placed on home instruction pending a new hearing with counsel.

Petitioner subsequently retained counsel and a second hearing was held before the district"s assistant superintendent for human resources and planning.  Several administrators testified about the events of October 31, 2001, the earlier problems between Y.J. and P.J., and the administration"s attempts to address the situation. Y.J. testified that he had not invited Turner Carroll students to school that day, but rather, claimed that he had arranged to meet E.T. at his house after school to go to the mall for a job interview.  Y.J. also testified that he did not recall shouting to a carload of youths "still on"different place."  At the conclusion of the hearing, the hearing officer found "no grounds to recommend that the Superintendent of Schools amend his decision to permanently suspend [Y.J.] for gross insubordination"" because Y.J. knew the rules and "chose not to inform his acquaintances to remain off" district property.  By letter dated May 7, 2001, respondent superintendent informed petitioner that he was affirming the hearing officer"s recommendation that Y.J. be permanently suspended and continued on home instruction for the remainder of the year.  By letter dated May 29, 2001, petitioner appealed the determination to respondent board.  Before receiving any response, petitioner commenced this appeal on June 18, 2002.

Petitioner contends that the evidence presented was insufficient to sustain the charges and that the penalty imposed was excessive.  Petitioner requests that I overturn the decision and order that Y.J. be reinstated and his records expunged.  At its July 9, 2002 board meeting, respondent board sustained the superintendent"s finding that Y.J. had committed gross insubordination, but modified the penalty by suspending Y.J. only until the end of the 2001-2002 school year.  Respondents allege that the appeal is moot because Y.J. has served the suspension.

Because Y.J. has already served the suspension, the appeal is moot except to the extent that petitioner seeks expungement of Y.J."s records.  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 C.S.D. v. Commissioner of Education, 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of C.D., 41 Ed Dept Rep ___, Decision No. 14,642).  A hearing officer may draw reasonable inferences if the record supports the inferences (Bd. of Educ. of Monticello C.S.D. v. Commissioner of Education, supra; Appeal of J.C., 41 Ed Dept Rep    , Decision No. 14,723).

Based on the record before me, I find substantial evidence to support the charge of gross insubordination.  In order to find "gross insubordination", respondents were obligated to establish that Y.J. disobeyed a directive given to him by a district administrator.  The record clearly establishes that Y.J. was instructed not to invite non-district students to enter Sweet Home property and that a number of Turner Carroll students were present at Sweet Home on October 31, 2002.  Further, the record establishes that in the weeks preceding the October 31, 2001 incident, Y.J. had at least three confrontations with P.J. and had told his friend, E.T., a Turner Carroll student, about them.  In addition, P.J. testified that he had heard "rumors" that Turner Carroll students were planning to come to school "to get" him.  School officials also testified that when confronted, the separate groups of Turner Carroll students claimed that they were at school to pick up Y.J. for a job interview.  In addition, one administrator testified that he witnessed Y.J. waive off one carload of students and yell "it"s still on"different place."  Under these circumstances, I find that respondents reasonably inferred that the students had come to Sweet Home at Y.J."s behest, in violation of the directive from the Sweet Home principal and assistant principal.

Finally, I do not accord any weight to the triple hearsay testimony of one of respondent"s assistant principals who testified that petitioner had stated that E.T. had told petitioner"s daughter that he was at school to "get" P.J.  Although 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 this case, the statement allegedly attributed to E.T. was too attenuated to be considered.