* Subsequent History: Matter of Board of Educ. of Bay Shore Union Free School Dist. v Mills; Supreme Court, Albany County; Order transferred proceeding to Appellate Division, Third Department; August 18, 2009; Decision and order granted application to withdraw; September 2, 2010. *

Appeal of L.L., on behalf of her son E.A., from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 15,835

(October 1, 2008)

Paul L. Dashefsky, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) to uphold the suspension of her son, E.A.  The appeal must be sustained.

E.A. is 16 years old and a native of Honduras who has attended respondent’s schools since he arrived in the United States in July 2006.[1]  During the 2007-2008 school year, E.A. attended 10th grade in respondent’s district.  He is classified as limited English proficient (“LEP”) and has attended English as a Second Language (“ESL”) classes.  Petitioner’s native language is Spanish.

The record indicates that on February 12, 2008, at least two students were involved in a verbal altercation outside the high school building after the school day had ended. 

The next morning, respondent’s dean of 10^th and 12^th grade students (“dean”) and another district employee interviewed students regarding the incident.  According to respondent, one of the students interviewed reported that, on the morning of February 13, 2008, E.A. “confronted and asked him, in English, a question regarding the gang MS-13 ....  Specifically ... the student reported that [E.A.] stated, ‘I heard you say that MS was pussy.  You said that MS was pussy?’”

Based on this information, the dean interviewed E.A.  Respondent claims that during the interview E.A. admitted making the statement regarding MS-13.  However, petitioner claims that another student made the statement and that as a result of E.A.’s lack of English proficiency, there was “misunderstanding and confusion” as to E.A.’s response.

By letter dated February 15, 2008, the high school principal informed petitioner that E.A. would be suspended for five days – February 25 through 29, 2008.  The letter explained that the suspension was for prohibited group affiliation, inciting violence and insubordination.  The letter also informed petitioner that she had a right to an informal conference at which she could question complaining witnesses.  Finally, the letter stated that a superintendent’s hearing would be held.  The record indicates that this letter was written in English and was hand-delivered to petitioner.  By letter dated February 20, 2008, respondent’s superintendent notified petitioner that the superintendent’s hearing would be held on February 29, 2008.

By letter to the superintendent dated February 25, 2008, petitioner’s attorney objected to the appointment of the hearing officer and alleged that the charges were vague and ambiguous.  Petitioner’s attorney requested that all communications be provided to petitioner in both Spanish and English and noted that, on February 15, 2008, he had submitted a written request to meet with the administration concerning E.A. and reiterated the request.

On February 28, 2008, an “Amended Notice of Disciplinary Hearing” (“notice”), in both Spanish and English, was hand-delivered to petitioner.[2]  Among other things, the notice included the following charges:

CHARGE #1: Prohibited Group Affiliation

On or about February 13, 2008, on the grounds of the Bay Shore High School, [E.A.] ... was affiliated with, and/or made a communication with a non-school sanctioned group, fraternal organization or gang by asking another student “Did you say that MS was pussy.”

[February 10, 2008 incident][3]

CHARGE #2: Inciting Violence/Menacing

On or about February 12, 2008, on the grounds of the Bay Shore High School, [E.A.] ... planned to participate in a violent, unsafe, or illegal act by attempting to engage another student in a fight.

The hearing was held on February 29, March 7 and 12, 2008.  At the hearing, the dean stated that in early February 2008, he attended training by local law enforcement agencies on the “recognition of patterns and some of the cues that would indicate gang [sic] and gang affiliations.”  The dean noted that MS-13 is “recognized as a gang by law enforcement agencies” and a “prohibited group at Bay Shore Schools.”

The dean further testified that, at approximately 2:10 p.m. on February 12, 2008, he received a report from a school security officer that students were engaged in a verbal altercation outside the school.  According to the dean, he arrived at the scene after the confrontation had occurred and did not observe what took place.  He stated that, when he arrived, he saw approximately eight high school students and that E.A. was not present.  The dean stated that one of the remaining students reported that E.A. and another student were trying to engage him in a fight by calling him “pussy.”

The dean testified that the next morning, he and another district employee interviewed students regarding the February 12, 2008 incident.  The first student interviewed stated that E.A. and another student were attempting to engage other students in a fight by calling them “pussy.”

According to the dean, the second student he interviewed corroborated the first student’s account of the February 12, 2008 incident – including E.A.’s involvement therein.  This student also reported that, on the morning of February 13, 2008, he was approached by E.A. and another student in the hallway and that he saw and heard E.A. ask the other student in Spanish, “Is he the one?”  He saw the other student nod in the affirmative, and then E.A. turned to him and said in English, “I heard you said MS was pussy.”   When the dean asked the student why E.A. and the other student would approach him like that, the student responded that “these guys are MS.”

The dean also interviewed the student who allegedly acted with E.A. in the February 12, 2008 verbal altercation and the February 13, 2008 confrontation.  According to the dean, while this student stated that “nothing happened” on February 12, 2008, he admitted to confronting another student with E.A. on February 13, 2008.  However, the dean noted that this student did not indicate specifically how he and E.A. “confronted” the other student.

Thereafter, the dean interviewed E.A.  According to the dean, when E.A. was asked in both English and Spanish whether he and another student had confronted a third student that morning, E.A. answered “Yes” in English.  The dean testified that E.A. was then asked in English whether he said “Did you say MS was pussy?” and that E.A. immediately responded “Yes” before the dean could translate the question into Spanish.  However, upon further questioning in English and Spanish, E.A. stated that he was uncertain what the dean was asking and subsequently denied making the statement.  Following this exchange, the dean reached the conclusion that E.A. had said something that “I supposed he wished he hadn’t.” 

Four of E.A.’s teachers testified at the hearing on his behalf.  E.A. also testified at the hearing and denied being a member of a gang.  He also denied carrying or owning any weapons, having any tattoos or wearing a blue bandana, representing the gang’s signature color.  He stated that on the afternoon of February 12, 2008, he was outside the school building waiting for his bus home.  He denied trying to start a fight and stated that “[t]he only thing I know is that [two students] were talking [and] that [one student] asked [the other student] some questions .... And after that I went to get the bus and that’s it.”  E.A. denied participating in the conversation between the two other students.

With respect to the morning of February 13, 2008, E.A. stated that he and another student were in the hallway waiting for class to start when a third student approached.  E.A. testified that his companion asked the third student “if the MS was a pussy.”  According to E.A., when the third student responded “Yes,” E.A. asked, “What did you say?”  The third student said that “MS was pussy and he said if it was pussy he was going to prove it [that day] after school.”  E.A. testified that after this exchange he went to class.

E.A. stated that the dean initially asked two questions in English during his interview:  (1) whether E.A. had a conversation with the other student and (2) whether E.A. asked that student if “MS was pussy.”  E.A. testified that, even though he was confused by question (1), he answered “Yes” and that “[o]nly after answering him I told him ... that I had a doubt that I didn’t know what he was asking me.”  With respect to question (2), E.A. testified that “I did not answer ... and afterwards I went back and I explained ... about the first question that [the dean] gave me ... I explained that I didn’t understand and for him to explain it in Spanish.”

E.A. testified that when the dean then translated the two questions into Spanish, he admitted to having a conversation with the other student but he denied saying that “MS was pussy.”  E.A. also stated that the dean asked the question “Why would it bother you that MS was pussy” in Spanish and that E.A. responded in Spanish that it “didn’t bother me.”

Based on the hearing testimony, the hearing officer found that the district “met its burden of proving” both charges against E.A.  During the penalty phase of the hearing, the assistant principal testified as to E.A.’s anecdotal record.

In a March 12, 2008 memorandum, the hearing officer notified the superintendent of his finding that “Charge #1:  Prohibited group affiliation, was substantiated” and his recommendation that E.A. be suspended until “the first day of the second semester of the 2008-2009 school year (on or about February 1, 2009).”  In the memorandum, the hearing officer made no specific recommendation or finding of guilt with respect to charge #2.  The superintendent accepted the hearing officer’s recommendation and petitioner appealed this determination to respondent.  Respondent denied petitioner’s appeal on or about May 29, 2008 and this appeal ensued.  Petitioner’s request for interim relief was denied on July 7, 2008.

Petitioner appeals both the short-term and long-term suspensions imposed by respondent and seeks expungement of E.A.’s records.  Petitioner argues, inter alia, that the hearing officer’s decision is not supported by substantial evidence.  Petitioner maintains that the district failed to provide her with timely and sufficient notice of the charges against E.A. in a language she could understand and that she was not provided with an opportunity for an informal conference with the principal.  Petitioner also alleges that she had no opportunity to “confront and question” witnesses with first-hand knowledge of the charges at the disciplinary hearing. 

Respondent argues, among other things, that the hearing officer’s decision was based on competent and substantial evidence, including “the admission of [E.A.] that he made a prohibited communication in regards to the gang MS-13 to another student.”  Respondent reasons that “any communication in regards to the gang MS-13 runs contrary to the mission of the District by endangering the safety and welfare of its students ....”  Respondent also contends that petitioner received timely and sufficient notice of E.A.’s suspension and her right to an informal conference, of which respondent alleges she did not avail herself.

I must first address a procedural issue concerning petitioner’s memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, to the extent petitioner’s memorandum of law contains new assertions, I have not considered them.

The 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 Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. 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).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (see e.g. Appeal of C.D., 43 Ed Dept Rep 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960; Appeal of P.K., 41 id. 421, Decision No. 14,733).

Respondent’s code of conduct defines “prohibited group affiliation” as “[a]ny activity, affiliation and/or communication in connection with a non-school sanctioned club/group, including fraternal organizations or gangs ....”  In this case, respondent relies solely on the testimony of the dean to support its contention that E.A. engaged in “prohibited group affiliation” by allegedly asking another student “Did you say MS was pussy?”  The dean testified to a report received from another student that E.A. made a gang-related comment.  While the dean also testified that E.A. admitted making the comment, he stated that E.A. said he “did not understand what I was asking him” during the interview and tried to “retract” his admission.

Moreover, E.A. testified on his own behalf and denied being a gang member as well as making the statement regarding MS-13.  During his testimony, E.A. explained that his companion made the statement and indicated that he was confused during the dean’s interview.  Indeed, E.A.’s testimony regarding his confusion during questioning is corroborated by that of the dean himself.  Thus, based on the record before me, I cannot conclude that the record contains substantial evidence that E.A. made a gang-related statement at school on February 13, 2008.

Moreover, even if respondent produced evidence that E.A. made a gang-related statement at school, the record does not support a finding that this constitutes “prohibited group affiliation” under the district’s code.  In this case, the charge of “prohibited group affiliation” is based only on the allegation that E.A. made a statement referencing MS-13.  Respondent produced no evidence as to the context or tone in which the alleged statement was made that would support a finding of “prohibited group affiliation.”  Further, although the dean testified that he had been trained to identify symbols of gang affiliation such as wearing tattoos, carrying weapons and dropping out of school, the record contains no evidence that E.A. exhibited any such signs of gang affiliation.  As noted above, while the dean testified that MS-13 is “recognized as a gang by law enforcement agencies” and a “prohibited group at Bay Shore Schools,” a student’s mere reference to MS-13, without more, does not constitute an “activity, affiliation and/or communication in connection with a ... gang.”  Therefore, based on the record in this case, I find that that the proof adduced at E.A.’s disciplinary hearing was insufficient to sustain the charge of “prohibited group affiliation.”

While I am constrained to sustain petitioner’s appeal based on the record before me, I note that nothing herein should be interpreted as condoning gang-related conduct on school grounds.  As respondent points out, gang affiliation and related conduct pose serious safety concerns for school districts.  My decision in this case is based on the circumstances presented in this record and should not be construed as minimizing the gravity of this issue.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s suspension of E.A. from February 25, 2008 through February 1, 2009 be annulled and expunged from his record.

IT IS FURTHER ORDERED that respondent readmit E.A. to the schools of the district.

END OF FILE