Decision No. 17,159
Appeal of S.U., on behalf of her son M.U., from action of the Board of Education of the Smithtown Central School District regarding student discipline.
Decision No. 17,159
(August 22, 2017)
Long Island Advocacy Center, attorneys for petitioner, Diane E. Inbody, Esq., of counsel
Lamb & Barnosky, LLP, attorneys for respondent, Michael D. Raniere, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Smithtown Central School District ("respondent") to discipline her son (“student”). The appeal must be dismissed.
During the 2016-2017 school year, the student was a tenth grader in respondent’s high school. On December 15, 2016, the school’s assistant principal received information that the student was in possession of cocaine. The assistant principal spoke to the student and the student allowed the assistant principal to search his bag. Prior to the search, the student attempted to remove a small container from the bag. The assistant principal asked the student if he could examine the container and the student consented. The container contained a white powdery substance, which the student stated was either Xanax or cocaine. The assistant principal contacted the district’s head of security, who subsequently performed a test on the substance and concluded that it was cocaine.
The assistant principal then called the Suffolk County Police Department. Two police officers tested the substance. The test confirmed that the substance was cocaine. The building principal charged the student with engaging in conduct that endangered the safety, physical or mental health, morals or welfare of others and suspended the student for five days. This charge and the five-day suspension were memorialized by the superintendent of schools in a letter dated December 15, 2016. This letter also stated that a hearing pursuant to Education Law §3214 would be held on December 19, 2016.
The hearing convened on December 19, 2016, as scheduled. The assistant superintendent for pupil personnel services served as the hearing officer, and the student, his parents, and the assistant principal attended and participated in the hearing. The student did not deny that he possessed cocaine at school, but testified that the container was not his and was given to him at a party. The student also testified that it was a “mistake that [he] did make” and promised it would not be repeated. Petitioner testified and, while she did not deny that the student possessed the cocaine at school, stated that she hoped that “he was just holding it for somebody.” Testimony was taken during the hearing regarding the student’s character and anecdotal record. The hearing officer found the student guilty and recommended one year of suspension, through December 19, 2017. The superintendent accepted the hearing officer’s recommendations by letter dated December 19, 2016. Petitioner appealed this decision to respondent on February 8, 2017. The board reviewed petitioner’s appeal on February 14, 2017 and upheld the superintendent’s determination by letter dated February 15, 2017. This appeal ensued. Petitioner’s request for interim relief was denied on March 17, 2017.
Petitioner asserts that the hearing conducted on December 19, 2016 was both procedurally and substantively defective. Specifically, petitioner asserts that her due process rights were violated because she was not given an opportunity to participate in the penalty phase of the hearing. Petitioner asserts that the hearing officer refused to consider the student’s anecdotal record in violation of the student’s due process rights and the district’s code of conduct. Petitioner also claims that the one-year suspension is “unduly harsh, excessive and disproportionate” to the student’s conduct. Petitioner argues that the hearing officer further erred in allowing a written statement from the school’s security guard into the record, which denied petitioner her right to cross-examine this witness. She also argues that the security guard’s written statement was impermissible hearsay. Finally, petitioner alleges that the student is not receiving adequate alternative instruction services from the district. For relief, petitioner seeks reversal of the suspension, or, in the alternative, that the 12-month suspension be amended to allow the student to return to school at the beginning of the 2017-2018 school year. Petitioner also seeks expungement of the student’s record.
Respondent asserts that the student was properly suspended from school pursuant to Education Law §3214. Respondent contends that the hearing officer properly accepted the written statement of the security guard into evidence and that hearsay evidence is admissible in administrative hearings. Respondent also argues that the superintendent was not required to consider the student’s anecdotal record when issuing a penalty, as long as the discipline imposed is based solely on the student’s conduct. Respondent contends that the 12-month suspension of the student was not unduly harsh and was proportionate to the severity of the offense.
First, I must address a procedural matter. Petitioner filed a reply. The purpose of a reply 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). 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.
Turning to the merits of the case, 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 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).
Here, the student did not deny that he possessed cocaine at school; rather, he contended only that the cocaine was not his and was given to him at a party. Even accepting the student’s version of events as true, the student’s attempts to explain his conduct cannot be used to excuse his admitted conduct in possessing an illegal substance on school grounds, thereby violating the school’s code of conduct by endangering the safety, morals, health or welfare of others. Therefore, I find that the record establishes the student’s guilt as to the charged offense by competent and substantial evidence.
Next, petitioner claims that she and the student were denied the right to cross-examine the security guard. 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[c]; 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). Here, although the hearing transcript does not indicate that the security guard’s written statement was entered into evidence as an exhibit at the hearing, it does indicate that such written statement was referenced during the principal’s testimony and presented during the hearing. By permitting the district to present this written statement in lieu of the witness’s live testimony, the hearing officer deprived petitioner of the opportunity to cross-examine the security guard (see Appeal of L.P., 50 Ed Dept Rep, Decision No. 16,252; Appeal of Parker, 34 id. 379, Decision No. 13,351). I note that it is unclear from the record before me whether the hearing officer actually considered and relied on this written statement in her recommendation of guilt. However, even if petitioner had established that the hearing officer did so, any such error was harmless under the circumstances as the student admitted his guilt to the charged offense and this was, as noted above, sufficient to sustain the charge against him (see e.g. Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628). Nevertheless, I remind respondent 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.
Petitioner also argues that the student’s due process rights were violated because the hearing officer “bypassed” the “entire second portion of the two part disciplinary procedure” and refused to consider the student’s anecdotal record in determining the penalty. Respondent contends that there is no legal requirement that the anecdotal record be considered. A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337; Appeal of D.F.B., 43 id. 496, Decision No. 15,064). Here, the record indicates that, despite the indication in the superintendent’s December 15, 2016 letter that the student’s anecdotal record would be considered during the penalty phase of the hearing, the hearing officer failed to do so.
In any case, the student’s past achievements, lack of a disciplinary record, and other such evidence were generally discussed at the hearing. Specifically, the hearing transcript indicates that, prior to making a finding of guilt, the hearing officer heard testimony from the student and his parents regarding the student’s grades and academic achievements, lack of prior discipline, and participation in various extracurricular activities.
While petitioner is correct that the introduction of this evidence prior to a finding of guilt was improper, this error was harmless under the circumstances because there is no evidence in the record before me that this procedural error compromised the hearing officer’s impartiality or resulted in any prejudice to the student (see Appeal of a Student Suspected of Having a Disability, 35 Ed Dept Rep 492, Decision No. 13,610; Appeal of Norwood, 31 id. 464, Decision No. 12,701). In her memorandum of law, petitioner argues that, after finding the student guilty, the hearing officer “immediately stated that her ‘hands were tied’ [and] imposed the penalty without giving [the student] the opportunity to present any additional evidence or further testimony as required by Education Law Section 3214.” Although the hearing was not clearly bifurcated into guilt and penalty phases as described above, the hearing transcript indicates that, after finding the student guilty, the hearing officer considered the testimony that had been offered in this regard in the student’s favor:
I’m taking in everything that you’re saying. Again, I appreciate everything you said, I appreciate the fact that you’re a good student, but my hands are tied as far as the rules and the regulations and unfortunately, the consequence for this mistake is a big consequence and you’re going to have to be out of school for the year.
On the record before me, therefore, I find this procedural error to be harmless.
Petitioner also argues that the penalty in this case is not proportionate to the severity of the offense. I disagree. 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). As discussed above, the student’s guilt is not in question here. The possession of an illegal substance on school property is a serious offense. I have upheld one-year suspensions in cases involving similar offenses; therefore, based on the record before me, I will not substitute my judgement in this case (see e.g. Appeal of J.S., 50 Ed Dept Rep, Decision No. 16,091). With regard to petitioner’s challenge to the hearing officer’s statement that her “hands were tied” by “certain regulations and certain state regs and certain rules” to impose a one-year suspension, there is no information in the record which supports the hearing officer’s statement regarding rules and regulations as to penalty. Indeed, respondent cites no law or policy which would mandate a specific penalty and does not address petitioner’s contention on appeal. However, there is no evidence that the superintendent, who reviewed the hearing officer’s recommendations with respect to guilt and penalty, felt similarly constrained to impose a one-year suspension. Therefore, because I do not find that a one-year suspension is excessive under the circumstances, the hearing officer’s erroneous statement was harmless under the circumstances.
Finally, petitioner objects to the quality of the alternative instruction provided to the student during his suspension. Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of R.S., 48 Ed Dept Rep 215, Decision No. 15,841; Appeal of W.H., 45 id. 96, Decision No. 15,269; Appeal of D.F.B., 43 id. 496, Decision No. 15,064), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883). Previous Commissioner’s decisions have found that two hours per day of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316). Here, petitioner has offered only conclusory allegations that the quality of instruction is sub-par and has not met her burden of proving that such instruction was not substantially equivalent to the student’s prior instruction. Nevertheless, I note that while respondent denied petitioner’s claims in this respect, the record contains no evidence as to what alternative instruction is being provided to the student.
In conclusion, petitioner has failed to meet her burden of proving that the student was not guilty of the charged offense, or that the penalty was sufficiently disproportionate to the nature of the charged offense. While petitioner has identified several procedural errors that occurred during the hearing, there is no evidence in the record that these errors affected the student’s admission of guilt or resulted in a disproportionate penalty. Nevertheless, I caution the district that substantial or cumulative errors could constitute grounds to vacate a disciplinary determination or expunge a student’s record, and it must ensure that it adheres to the procedures set forth in Education Law §3214.
THE APPEAL IS DISMISSED.
END OF FILE
 An affidavit submitted by the high school assistant principal identifies the date as December 14, 2016, but this appears to be a typographical error.
 To the extent petitioner suggests that this information compelled a more lenient penalty, I note that a student who has a previously unblemished record is not necessarily entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Matter of Lutes, 25 Ed Dept Rep 396, Decision No. 11,624).
 Petitioner also claims that the hearing officer violated the district’s code of conduct in issuing the penalty in this case. However, the code of conduct was not made part of this record and petitioner has failed to carry her burden of proof with respect to this claim.