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Decision No. 16,106

* Subsequent History: Matter of Student With a Disability v Steiner; Supreme Court, Albany County; Decision and order transferred proceeding to Appellate Division, Third Department; May 27, 2011; Judgment dismissed petition and confirmed Commissioner’s decision 101 AD3d 73 (3d Dept 2012); appeal dismissed 20 NY3d 1032 (2013). *

Appeal of a Student with a Disability, by his parents, from action of the Board of Education of Half Hollow Hills Central School District regarding student discipline.

Decision No. 16,106

(July 27, 2010)

Patrick Kevin Brosnahan, Jr., Esq., attorney for petitioners

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the determination of the Board of Education of the Half Hollow Hills Central School District (“respondent”) to uphold the suspension of their son.  The appeal must be dismissed.

Petitioners’ son was a ninth grade student with a disability (“student”) at respondent’s Half Hollow Hills High School East (“school”) during the 2008-2009 school year.  On March 17, 2009, the student stated to a teacher and other students that he was going to “blow this place up” and warned the teacher that “she should not come to school on Friday.”  The teacher notified the assistant principal, who interviewed the student.  The student admitted making the statement, and petitioners and the police department were notified.  The student was immediately suspended for five days and on March 18, 2009 was served with a notice of charges scheduling a hearing to begin March 23, 2009.

A superintendent’s hearing was held on March 25 and 27 and April 2 and 3, 2009 to consider further disciplinary action against the student.  The student was found guilty of conduct that was insubordinate, disorderly, violent, disruptive, and a danger to the safety, morals, health and welfare of himself and others, in violation of the school’s code of conduct.  Following the liability phase of the hearing, a manifestation team found no direct or substantial relationship between the student’s disability and his misconduct.  The superintendent suspended the student for 30 school days, from March 17 through May 7, 2009.  Petitioners appealed the suspension.  On June 30, 2009, respondent upheld the superintendent’s decision.  This appeal ensued.

Petitioners contend that the student’s statements were taken out of context because they were meant as a joke and he never intended to threaten or harm anyone.  Petitioners dispute the findings of fact made by the hearing officer and allege that respondent’s decision was arbitrary and capricious.  Petitioners request that respondent’s decision be set aside and that the suspension be stricken from the student’s records.

Respondent denies petitioners’ allegations.  It states that the findings of guilt were based on competent and substantial evidence and that its decision to suspend the student was rational.  Respondent further contends that petitioners failed to state a claim and that the petition should be dismissed because it does not contain a clear and concise statement of petitioners’ claim in violation of §275.10 of the Commissioner’s regulations.  Respondent also objects to petitioners’ verified reply.

I will first address the procedural matters raised by respondent.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Farrell, 45 Ed Dept Rep 224, Decision No. 15,308; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  I find that petitioners adequately set forth their claims and demand for relief in the petition.  Respondent has not alleged or demonstrated that any prejudice resulted from a lack of clarity.  Accordingly, I decline to dismiss the petition on this basis.

With respect to the verified reply, its purpose is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The student has served the suspension.  Therefore, except to the extent that petitioner seeks expungement of the student’s record, the appeal must be dismissed as moot.

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).  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of N.C., 46 id. 358, Decision No. 15,532).

Petitioners argue that their son’s statements were made in a joking manner and that none of the witnesses felt that his statement constituted an actual threat.  I have carefully reviewed the hearing transcript and note that two student witnesses did testify that they did not construe the student’s statement as a threat.  However, the teacher who reported the incident soon after it occurred, wrote that she “did not know how serious” the statement was in her email to the assistant principal.  Additionally, the assistant principal notified the police of the threatening statement, requiring the teacher and assistant principal to make statements about the incident at the local precinct later in the day.  Finally, there can be no doubt that the words “blow this place up” were said by the student since he admitted stating them at hearing.  After a thorough hearing in which petitioners, who were represented by counsel, called numerous witnesses to testify on their son’s behalf, the hearing officer found that the student’s statement constituted a threat and violated respondent’s code of conduct.  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).  On the record before me, I find no reason to substitute my judgment for that of the hearing officer.

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).  Although the student’s threat did not cause the school to evacuate or the authorities to search his locker, the student’s statement, in and of itself, constitutes conduct which is in violation of respondent’s code of conduct and warrants suspension under Education Law §3214 (Appeal of M.H., 45 Ed Dept Rep 42, Decision No. 15,254; Appeal of David and Cynthia L., 40 id. 297, Decision No. 14,484).  Upon the record before me I find no basis for determining that respondent acted in an arbitrary and capricious manner in finding petitioners’ son guilty of the offense charged.

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