* Subsequent History: Matter of Mirenburg v Mills; Supreme Court, Albany County; Judgment dismissed petition to review; November 27, 2009. *

Appeal of B.M., on behalf of his son E.M., from action of the Board of Education of the Lynbrook Union Free School District regarding student discipline.

Decision No. 15,909

(March 31, 2009)

Mark L. Lubelsky and Associates, attorneys for petitioner, Mark L. Lubelsky, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Lynbrook Union Free School District (“respondent”) to uphold the suspension of his son, E.M.  The appeal must be dismissed.

During the 2007-2008 school year, E.M. attended ninth grade at respondent’s high school.  On November 2, 2007, E.M. was involved in an incident involving his former eighth grade teacher from respondent’s middle school.  The teacher alleged that E.M. approached her at a high school basketball game and pressed the knuckles of his right hand into her scalp, laughing and repeating her name in her ear.  The teacher also reported that E.M. and another boy entered her classroom on November 7, 2007 and E.M. allegedly grabbed her around the neck in a choke hold and dug his knuckles into her scalp again, laughing and repeating her name. 

By hand-delivered letter dated November 16, 2007, the superintendent notified petitioner that a hearing would be held on charges that E.M. engaged in conduct that was insubordinate or disorderly or violent or disruptive and/or otherwise endangered the safety, morals, health or welfare of himself, and/or others, in relation to the November 2 and 7 incidents.  Petitioner and his son testified at the hearing and were represented by counsel.  At the conclusion of the hearing, the hearing officer found E.M. guilty as charged.

By letter dated December 11, 2007, the superintendent informed petitioner that he adopted the hearing officer’s findings of guilt and suspended E.M. for the remainder of the 2007-08 school year, until September 2, 2008.  By letter dated January 10, 2008, petitioner was notified that respondent affirmed the decision of the superintendent at its January 9, 2008 meeting.  Petitioner commenced an action in New York State Supreme Court on February 1, 2008, and this appeal on February 8, 2008.  By order dated April 8, 2008, the court action was dismissed without prejudice for failure to exhaust administrative remedies. 

Petitioner contends that the hearing officer was biased against E.M., and, as a result, E.M. was denied a fair hearing.  He alleges that the hearing officer threatened and bullied the student by conducting an aggressive, hostile and adversarial cross-examination and then denied E.M.’s counsel the right to redirect examination.  Petitioner further alleges that the hearing officer prejudged E.M. as guilty by stating unconditionally at the beginning of the hearing, that the transcript would be provided to the district attorney and administered Miranda warnings to E.M. before his testimony.  Petitioner also contends that the hearing officer failed to bifurcate the hearing, thereby prejudicing the determination of guilt by considering the student’s prior disciplinary history. 

Petitioner also objects to the penalty imposed on E.M.  Petitioner claims that the hearing officer unreasonably recommended an excessive penalty of a two-year suspension for conduct amounting to, at best, a hug, and, at worst, a “noogie”.  Petitioner asserts further that the hearing officer refused to consider petitioner’s testimony regarding E.M.’s family-related issues during the penalty phase. 

Respondent denies that E.M. was denied a fair hearing and affirmatively alleges that the student was afforded due process.  Specifically, respondent denies that the hearing officer was biased and maintains that the hearing officer based his findings and recommendations solely on the testimony and evidence before him.  Respondent contends that its determination, as well as the superintendent’s, were based on competent and substantial evidence contained in the record.  Lastly, respondent maintains that the penalty was proportionate to the severity of the offense.[1]

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

E.M. testified that at the time of the incident, he was 5’4” tall, weighed 155 ponds and played on the high school football team.  He admitted approaching his former teacher at the November 2 basketball game.  E.M. testified that he put his left arm around the teacher’s hip and lightly patted her on the head with his right hand twice, repeating her name twice, and that she reacted by saying “don’t do that again.”  E.M. also admitted entering the teacher’s middle school classroom on a later date, wrapping his left arm around her waist and gently patting her on the head with his right hand.  He testified that she responded to the second incident the same way.  He testified that he “wanted to show affection” to the teacher and was “kidding around.” 

The teacher’s testimony indicates that she is a petite woman standing 4’11” tall and weighing 115 pounds.  With regard to the November 2, 2007 incident, the teacher testified that the student pressed his knuckles into her scalp and continued to do so even after she told him he was hurting her and asked him to stop.  She stated that he was laughing and repeating her name in her ear, stopping only when another boy told him he was hurting her.  She testified that even after she told him not to do it again “he gave me one more noogie on the head” and repeated her name, “just to get the last one in.”  The teacher testified that she was hurt, upset and humiliated by the November 2, 2007 incident. 

The teacher further testified that E.M. and three other high school students entered her classroom on November 7, 2007.  She stated that E.M. approached her from behind on her right-hand side, grabbed her around the neck in a chokehold with his left arm and dug his right hand knuckles into her scalp, laughing and repeating her name over and over.  She testified that E.M.’s weight was on her back, she could not move, and that he ignored her directive to stop because he was hurting her.  She testified that she was able to release herself from E.M.’s grip after 15 to 20 seconds and telephoned the principal who came to her classroom.  The teacher testified that she was hurt, afraid and humiliated, and the incident was the first time in 17 years of teaching that she had to call for assistance.  The middle school principal testified that the teacher was very upset and told her that “[E.M.] came into my room, did not say anything to me, grabbed me and put me in a choke hold and started giving me noogies into my head ... My head still hurts.” 

With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  The student admitted physical contact with the teacher on both occasions.  The teacher testified that such contact was unwelcome and caused her physical pain and humiliation.  The hearing officer found the teacher’s testimony detailing the incidents to be credible.  In addition, the hearing officer found credible the middle school principal’s testimony that she observed and spoke to both the teacher and student immediately following the November 7, 2007 classroom encounter.  Her testimony that the teacher was “very upset” and “scared” corroborates the teacher’s description of the incident.  Upon review of the record, I cannot conclude that there is clear and convincing evidence that the hearing officer’s determinations of credibility are inconsistent with the facts.   Accordingly, I cannot conclude that respondent erred in finding E.M. guilty of forcibly pressing his knuckles against the teacher’s scalp and causing her pain on November 2 and 7, 2007.

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 J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).

The hearing officer recommended that E.M. be suspended until November 7, 2009 for a period of two calendar years from the incident.  The superintendent’s determination, which respondent sustained, suspended E.M. for the remainder of the 2007-08 school year until September 2, 2008.  The superintendent based his determination on E.M.’s escalating disciplinary record, that E.M. lied, failed to take responsibility and did not express remorse for his actions, which he found to be both wilful and deliberate.  Upon review, the record reveals several prior incidents and a pattern of progressive discipline.  Given E.M.’s inappropriate physical contact with a teacher on two occasions and his prior disciplinary history, I cannot conclude that the penalty imposed was excessive.

Petitioner’s contention that the decisions of the superintendent and respondent were a function and result of an unlawful, biased, arbitrary and capricious hearing procedure is not supported by the record.  The hearing record does not reflect objection to any comments by the hearing officer.  Moreover, the superintendent denies considering any extraneous comments and did not follow the hearing officer’s recommendation to forward the hearing transcript to the District Attorney.  In his affidavit, the superintendent stated that he independently reviewed the 188 page hearing transcript and exhibits, carefully considered the witnesses testimony, and found that the principal’s testimony corroborated the teacher’s version of the events. 

I further note that the court’s April 8, 2008 decision and order, dismissing without prejudice petitioner’s court proceeding, rejected petitioner’s claims of bias.  In its decision, the court stated that the student had been provided adequate due process.  I concur with that conclusion.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE