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Decision No. 16,912

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parents, from action of the Board of Education of the Churchville-Chili Central School District regarding student discipline.

Decision No. 16,912

(June 6, 2016)

Hiscock & Barclay, LLP, attorneys for petitioners, James P. Evans, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Churchville-Chili Central School District (“respondent”) to suspend their daughter (“the student”).  The appeal must be dismissed.

During the 2013-2014 school year, the student attended fifth grade in respondent’s district.  On September 17 and 25, 2013, the principal received reports that someone had written bomb threats on a stall in the fifth-grade girls’ bathroom.  After conducting an investigation into each bomb threat, which included reviews of surveillance videos and bathroom logs, interviews with students, and reviews of handwriting samples, the principal and his administrative team concluded that the student was responsible for writing the two bomb threats in the girl’s bathroom.

By letter dated October 1, 2013, the principal suspended the student for five days, from October 1 through 7, 2013.  The letter charged the student with the following misconduct: insubordination; engaging in conduct which endangered the health, safety and welfare of herself and/or others; disruptive and/or disorderly conduct; and violent conduct.  Specifically, the letter provided as follows:

[The student] has admitted to writing bomb threats in the Middle School.  On Tuesday, September 17, 2013, [the student] wrote the following on a girls’ bathroom stall located in the fifth grade hallway: “There is going to be a bomb so watch out! (A small heart was drawn in the dot portion of the exclamation point.)”  On Wednesday, September 25, 2013, [the student] wrote the following on a girl’s bathroom stall located in the fifth grade hallway: “BOM the school!”

A superintendent’s hearing was held on October 7, 2013, after which the hearing officer found the student guilty of the charged misconduct.  By letter dated October 8, 2013, the superintendent adopted the findings of the hearing officer and suspended the student for the remainder of the 2013-2014 school year.  Petitioners appealed the suspension to respondent.  On November 26, 2013, respondent upheld the superintendent’s determination.  This appeal ensued.

Petitioners contend that the finding of guilt is not supported by substantial and credible evidence.  Specifically, petitioners allege that the student’s admission was improperly obtained and that handwriting evidence presented at the superintendent’s hearing should not have been admissible.  Although not entirely clear, petitioners also appear to assert that respondent should have treated their daughter as a student presumed to have a disability for disciplinary purposes.  Petitioners seek an order vacating and expunging the suspension.  Alternatively, petitioners contend that the penalty is excessive and request an order modifying the suspension to time already served.  Petitioners also ask that the student be provided with an instructional program that is “substantially equivalent” to the program from which she was suspended.

Respondent contends that the appeal must be dismissed as moot, in part, and for failure to state a claim upon which relief may be granted.  It maintains that the district conducted a thorough investigation and that the student admitted the conduct, and therefore, its decision was based on competent and substantial evidence and that, under the circumstances, the penalty was reasonable. 

I must first address a procedural matter. 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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The 2013-2014 school year has ended and the student has served her suspension.  Therefore, except to the extent that petitioners seek expungement of the student’s record, the appeal must be dismissed as moot.  Similarly, the appeal is also moot to the extent that petitioners request relief on their claim that respondent failed to provide their daughter with adequate alternative education during the suspension period (Appeal of C.K., 53 Ed Dept Rep, Decision No. 16,597; Appeal of a Student with a Disability, 52 id., Decision No. 16,434; Appeal of C.M., 50 id., Decision No. 16,142).

Turning to the merits, Education Law §3214(3)(a) authorizes a board of education, board of trustees, sole trustee, superintendent of schools, district superintendent, or principal of a school to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800). Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

I find competent and substantial evidence in the record to support the finding of guilt.  According to the record, on September 30, 2013, while being interviewed by the principal, the student admitted to making the bomb threats.  That same day, she made a written admission while in her counselor’s office.  Petitioners allege that the admission was coerced and unreliable because the student only admitted guilt after she initially denied the charges several times, and after the school principal discussed possible police involvement, leniency in any imposed discipline, and the possible reaction of her parents. However, at the superintendent’s hearing, petitioners had the opportunity to cross examine witnesses and to present their own witnesses.  Based on the evidence presented and the testimony at the hearing, the hearing officer found that that it did not appear that the student’s verbal and written admissions were a product of an intimidating or coercive environment and that the student herself brought up concerns over police involvement and the reaction of her parents.  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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

Additionally, the student’s admission is corroborated by other evidence in the record before me.  The school principal testified that he interviewed other students and reviewed classroom sign-out logs to identify who had been in the bathroom and custodial staff records to narrow the time-frames at issue.  The investigation indicated that the student was in bathroom at the relevant times and therefore, she was questioned by the principal.  She initially denied using the toilet and stated that her hands were sticky from eating lunch.  When the principal questioned the fact that the student’s lunch period was after the time she was seen in the bathroom, she changed her story to indicate that she had sticky hands from her classroom.  

He also compared student handwriting samples with the written bomb threats at issue, and reviewed surveillance videos of the hallway outside the bathroom.  At the hearing, the principal testified that surveillance videos showed the student in the hallway entering the bathroom before the threats were reported.  He further stated that the surveillance videos showed the student “acting strangely, including waiting to speak to a custodian after leaving the bathroom, standing by her locker and opening and closing the door multiple times, and looking down an adjacent hallway for staff in a suspicious manner.”  

The hearing included testimony from three district staff members, the principal, the house administrator and counselor, all of whom were present during the student’s admission of guilt.  The house administrator testified that not only did the student admit to writing the threats in the bathroom, she also recalled the exact wording of the second threat.  The counselor testified that midway through the questioning, she attempted to comfort the student by playing games with her in another room.  All three witnesses testified that the student was concerned about consequences at home.  Based on the record before me, I find that petitioners have failed to meet their burden of proof regarding their allegations of a coerced admission.  I further find no reason to substitute my judgment for that of the hearing officer regarding the credibility of witnesses, and find that there is competent and substantial evidence in the record to sustain the charges against the student. 

Petitioners argue that the inclusion of the principal’s handwriting analysis was improper, as the school principal is unqualified to conduct a handwriting analysis and that inconsistencies exist with respect to the handwriting comparisons. However, as described above, the record indicates that the hearing officer’s finding of guilt was made based on multiple factors in the evidence, including the verbal and written admissions by the student.  Indeed, while the hearing officer noted that petitioner’s extensive cross-examination of the witnesses “demonstrated inconsistencies with respect to the handwriting comparisons,” he also found that petitioners were “unsuccessful in attacking the circumstances surrounding [the student’s] admission.” 

Although not entirely clear, petitioners also appear to assert that respondent should have followed procedures treating their daughter as a student presumed to have a disability for disciplinary purposes.  Section 201.5(a) of the Commissioner’s regulations provides, in part, as follows:

Where the school district is deemed to have knowledge that the student was a student with a disability before such behavior occurred, such student is a “student presumed to have a disability for discipline purposes.”

A district is only deemed to have knowledge of disability if one of several conditions is met prior to the time the behavior occurred (8 NYCRR §201.5[b]), none of which are alleged here.  In this case, petitioners claim that respondent was aware that their daughter had a medical diagnosis of anxiety and attention deficit hyperactivity disorder (“ADHD”), both requiring medication, and that petitioners “had consistently raised concerns” to respondent.  Respondent denies such claims and petitioners submit no evidence with their reply to refute respondent’s denial or otherwise demonstrate that they expressed their concerns in writing or met any other condition listed in 8 NYCRR §201.5(b).  According to an affidavit from respondent’s superintendent, subsequent to the superintendent’s hearing, “a referral was made to the district’s 504 team based upon the student’s conduct.”  As a result, the team completed an accommodation plan for the student pursuant to §504 of the Rehabilitation Act (29 U.S.C. §794).  However, the record before me is insufficient to conclude that respondent had knowledge of any alleged disability pursuant to 8 NYCRR §201.5(b) prior to its evaluation of the student subsequent to the superintendent’s hearing.  Accordingly, petitioners have not met their burden of establishing that §201.5(a) applies in this case (Appeal of a Student Alleged to Have a Disability, 49 Ed Dept Rep 302, Decision No. 16,034). 

Since the finding of guilt is upheld and the suspension has been served, I need not address the issue of penalty (see Appeal of a Student Alleged to Have a Disability, 49 Ed Dept Rep 302, Decision No. 16,034; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  However, I note that suspensions of similar duration have been upheld in cases involving serious conduct as has been presented in this appeal (see e.g. Appeal of M.H., 45 Ed Dept Rep 42, Decision No. 15,254). 

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