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Decision No. 15,663

Appeal of M.A., on behalf of her son G.J., from action of the Board of Education of the Newfield Central School District regarding student discipline.

Decision No. 15,663

(September 20, 2007)

Leslie F. Jones, Esq., attorney for petitioner

Sayles & Evans, attorneys for respondent, James F. Young, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Newfield Central School District ("respondent") affirming the suspension of her son, G.J.  The appeal must be dismissed.

On September 23, 2006, G.J., a student at respondent’s Newfield High School, was involved in an altercation at the homecoming dance.  The altercation involved other students, the high school principal and two male chaperones.  In the course of events, G.J. shoved the principal and called her vulgar names.  G.J. also threw punches and kicks at the chaperones and all three fell to the ground.  One of the chaperones sustained injuries requiring medical treatment.  G.J resisted attempts to restrain him and attempted to re-enter the building after being instructed not to.  Eventually the sheriff arrived, subdued G.J. and arrested him.   

The principal charged G.J. with violating the school’s discipline code by acting in an insubordinate manner and endangering the health, safety and welfare of students and staff, suspended him for five days and recommended that a superintendent’s hearing be convened.

On September 29, 2006, respondent’s superintendent presided at a hearing pursuant to Education Law §3214 at which G.J., his stepfather, mother and law guardian appeared, along with the principal and G.J.’s probation officer.  The principal provided the only live testimony regarding the events that transpired.  She also submitted the supporting depositions of the two chaperones and herself taken by the sheriff’s department.

By decision dated September 29, 2006, the superintendent found G.J. guilty of the charges against him and suspended him for the remainder of the 2006-2007 school year.  In his decision, the superintendent recounted the events leading to G.J.’s violations based on the principal’s testimony and also noted that the principal and two chaperones gave depositions to the sheriff’s deputies, which he appended to the decision.

Petitioner appealed to respondent on October 30, 2006.  On November 17, 2006, respondent affirmed G.J.’s long-term suspension.  However, it expunged the five-day suspension from G.J.’s record.  This appeal ensued.

There is no dispute that G.J. was involved in the altercation.  Petitioner asserts, however, that the superintendent’s determination is erroneous because G.J.’s due process rights were violated with respect to the five-day suspension and because the long-term suspension was based on hearsay evidence -– specifically, the chapperones’ depositions.  Petitioner also contends that the punishment is excessive.  Petitioner seeks reversal of respondent’s  decision, expungement of G.J.’s record and a determination that he be allowed to return to school. 

Respondent asserts, interalia, that petitioner failed to meet her burden of establishing a clear legal right to the relief requested, that G.J. was afforded due process, that the superintendent’s hearing was properly conducted, that the determination of guilt was based on competent and substantial evidence and that the penalty was appropriate.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  The penalty imposed was suspension for the remainder of the 2006-2007 school year, which G.J. has already served.  In addition, respondent has already expunged the five-day suspension from G.J.’s record.  Thus, except to the extent that petitioner seeks expungement of the long-term suspension from G.J.’s record, the appeal must be dismissed as moot (Appeal of D.C., 41 Ed Dept Rep 277, Decision No. 14,684; Appeal of D.H., 41 id. 142, Decision No. 14,640; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

Petitioner contends that the long-term suspension should be expunged because G.J.’s due process rights were violated at the superintendent’s hearing.  Specifically, petitioner contends that it was improper for the superintendent to consider the written depositions of the superintendent and two chaperones. 

Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of S.C., 43 Ed Dept Rep 222, Decision No. 14,978).  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 R.C., 41 Ed Dept Rep 446, Decision No. 14,741; Appeal of D.C., 41 id. 277, Decision No. 14,684; Appeal of Coleman, 41 id. 101, Decision No. 14,628).  By permitting the introduction of the written statements of the two chaperones in lieu of their live testimony, the superintendent deprived petitioner of the opportunity to cross-examine them (Appeal of Coleman, 41 Ed Dept Rep, 101, Decision No. 14628, Appeal of Parker, 34 id. 379, Decision No. 13,351).  I note, however, that in the superintendent’s decision, he merely states that the principal provided him with copies of the depositions, which he appended to the decision and does not cite any information contained therein.  It thus appears that the superintendent did not rely on the disposition, and instead based his determination on the principal’s live testimony at the hearing.  I find that the principal’s testimony alone was sufficient to sustain the charges.  Thus, if the principal did, in fact, rely on the depositions, I find such reliance to be harmless error, I remind respondent however, 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.

I also reject petitioner’s claim that the suspension was excessive.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 of education (Appeal of a Student Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  G.J.’s conduct involved students and faculty and resulted in personal injury.  As a result, G.J. was found guilty of endangering the health and safety of others, a serious infraction.  G.J.’s record indicates that, in the prior school year, he had been suspended for six weeks and referred to the principal for insubordination twice.  Based on the record, I cannot conclude that a suspension for the remainder of the school year was excessive (Appeal of P.M., 44 Ed Dept Rep 437, Decision No. 15,223; Appeal of Mace, 40 id. 110, Decision No. 14,433).