Decision No. 17,258
Appeal of A STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Williamsville Central School District and Scott G. Matzloff, Superintendent, regarding student discipline.
Decision No. 17,258
(November 15, 2017)
David R. Addelman, P.C., attorneys for petitioners, David R. Addelman, Esq., of counsel
Hodgson Russ LLP, attorneys for respondent, Melanie J. Beardsley and Andrew J. Freedman, Esqs., of counsel
ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Williamsville Central School District (“respondent”) to impose discipline on their son (“the student”). The appeal must be sustained in part.
On May 26, 2010, the district discovered an inscription in a bathroom stall in a boys’ bathroom in one of its middle schools which read “I will Bomb the School.” The district investigated the incident but was unable to determine the author of the message. One of the suspects was the student, who attended the middle school where the inscription was discovered.
On March 21, 2013, the district discovered an inscription in a boys’ bathroom stall in one of its high schools which read “Bomb this F***ing School.” At the time the message was discovered, the student attended the high school where the inscription was discovered. The district interviewed the student and compared his handwriting to the May 2010 and March 2013 inscriptions.
On May 17, 2013, the principal suspended the student for five days based upon a “[b]omb or chemical threat,” “[d]isruptive behavior” and “[v]andalism.”
On May 22, 2013, the superintendent notified petitioners that a superintendent’s hearing would be convened. The superintendent identified ten charges against the student relating to the May 2010 and March 2013 bathroom inscriptions. Each charge related to, or was a consequence of, the student’s alleged authorship of the two inscriptions.
A hearing convened as scheduled in May 2013. A hearing officer recommended that the student be found guilty of the charged conduct and recommended suspension “through the end of the 2013-2014 school year.” The district also convened a manifestation team which determined that the student’s conduct was not a manifestation of his disability. The superintendent adopted the hearing officer’s recommendations on June 13, 2013. This appeal ensued. Petitioners’ request for interim relief was denied on August 20, 2013.
Petitioners argue that the district did not prove, through competent and substantial evidence, that the student engaged in the charged conduct. Specifically, petitioners contend that the hearing officer erroneously concluded that the student’s handwriting matched the two inscriptions from May 2010 and March 2013. Petitioners request annulment of the district’s penalty and expungement of the incident from the student’s record.
Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies and, alternatively, as untimely. Respondent further contends that it proved the student’s guilt by competent and substantial evidence and that the penalty was appropriate under the circumstances.
First, I must address a procedural matter. Subsequent to filing the instant petition, but prior to a decision on petitioner’s stay request, petitioner submitted two affidavits which were served on respondent. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). Petitioner did not seek prior permission to submit these affidavits and, therefore, I will not accept them.
Turning to respondent’s argument that the appeal must be dismissed for failure to exhaust administrative remedies, in the case of a suspension in excess of five days, Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination. Accordingly, the decision of a superintendent to suspend a student following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner (Appeal of R.A., 48 Ed Dept Rep 426, Decision No. 15,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).
Here, the superintendent’s June 13, 2013 letter indicated that “[i]f you choose to appeal this decision to the [b]oard of [e]ducation, you must do so within 30 days of the date of this letter.” The letter further indicated that the “written appeal must be received by the [d]istrict [c]lerk within the time frame specified.”
Counsel for petitioners subsequently sent a letter dated July 9, 2013 indicating that such letter was an appeal from the decision of the superintendent of schools relating to the student’s suspension as set forth in the superintendent’s June 23, 2013 letter. Inexplicably, the letter was addressed to the “New York State Board of Education” at two addresses: (1) 89 Washington Avenue, Albany, New York 12234 (i.e., the address of the State Education Building); and (2) “Buffalo District Schools, 65 Niagara Square, Buffalo, New York, 14202.” In addition to the addresses identified above, counsel for petitioners carbon-copied several individuals, including the superintendent, the hearing officer, counsel for respondent, an assistant superintendent, the principal, and an assistant principal. This letter presented detailed arguments about why the superintendent’s decision, as set forth in his June 23, 2013 letter, should be overturned.
After discovering this error, on July 11, 2013 counsel for petitioners sent a substantially identical version of the appeal letter, also dated July 9, 2013, with the address changed to “Williamsville Central School District.” It is clear that counsel for petitioners did not follow the precise procedure outlined in the superintendent’s June 13, 2013 letter in that the letter was not addressed to the district clerk, but rather to the school district at the district’s central office. However, respondent has not established that the board of education has adopted a policy or regulation requiring that appeals from long-term suspensions must be taken within 30 days or that appeals must be received by the district clerk within a 30-day period. Therefore, in the absence of such a policy, I agree with petitioners that, upon the district’s receipt of a document at its office which identified the student and indicated that the document was an “Appeal of Disciplinary Hearing,” respondent knew or should have known that petitioners were seeking review of the superintendent’s determination and should have proceeded to consider the appeal, which is petitioners’ statutory right under Education Law §3214(c)(1). Tellingly, respondent admits in its answer that its superintendent and assistant superintendent received the July 9, 2013 letter and although it submits multiple affidavits from school personnel, each avoids discussion of whether the letter sent on July 11, 2013 to the school district was received or, if so, when or by whom. Under these circumstances, I decline to dismiss the appeal for failure to exhaust administrative remedies. I note in this regard that both the superintendent’s determination letter and the July 11, 2013 letter were sent by mail. Applying the customary five-day rule for mailing, such letters would be deemed received five days after mailing (see N.Y. CPLR §2103[b]; Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). Even if respondent had adopted a 30-day time limitation on appeals from long-term suspensions, the appeal to the board of education would have been timely. Absent enshrinement of such a policy in a board policy or regulation, however, there is no basis for concluding that petitioners did not commence a timely appeal to respondent.
Under ordinary circumstances, the appropriate remedy would be to remand the matter to respondent and direct it to consider petitioners’ appeal. However, despite ample time to do so, there is no indication in the record that respondent has considered the merits of petitioners’ appeal since this appeal was commenced. While it is unclear from the record whether respondent has a timeline for considering student discipline appeals, substantial time has elapsed since this appeal was commenced and it would not be reasonable for respondent to consider petitioners’ appeal at this juncture. Under the unique circumstances of this case, I find that respondent’s inaction amounts to a constructive denial of petitioners’ appeal (see e.g. Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084). Therefore, to the extent petitioners’ appeal was served more than thirty days after the superintendent’s determination, I will excuse any such delay in serving the instant petition.
Petitioners submitted a reply in this matter. 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.
Petitioners’ challenge to the student’s underlying suspension must be dismissed as moot. 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). Here, the student has served his suspension. Moreover, respondent has submitted evidence that, following the events described in this appeal, the student has graduated with a Regents diploma. Therefore, any claim regarding the appropriateness of the penalty is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049). However, petitioners also seek expungement of the suspension from the student’s record and it is well-settled that an appeal will not be dismissed as moot to the extent that a petitioner seeks expungement of a disciplinary action from a student’s record (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of M.W. and L.W., 50 id., Decision No. 16,238).
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).
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).
The sole issue on appeal is whether the district proved the student’s guilt by competent and substantial evidence. Upon review of the evidence in the record, I conclude that it did not.
The student denied his guilt when questioned by district officials. Therefore, the district originally intended to utilize a handwriting expert to prove that the student wrote the bomb threats. However, the hearing officer excluded the handwriting expert’s testimony, together with certain exhibits, because the handwriting expert “offered no specifics or details as to [the] tools, principles and techniques actually used” in his analysis, and merely “state[d] that he ‘looked for similarities and patterns’ in handwriting.” I further note that, as pointed out by petitioner, this handwriting expert has been disqualified as an expert witness in numerous lawsuits (see e.g. Balimunkwe v. Bank of Am., N.A., No. 16-3263, 2017 WL 4216586 [6th Cir. Jan. 17, 2017]; Wheeler v. Olympia Sports Ctr., Inc., 2004 WL 2287759 [D. Me. 2004]).
The sole evidentiary basis supporting the hearing officer’s finding of guilt, then, was her lay comparison of the student’s handwriting with the bomb threats. Generally, under New York law a trier of fact may compare disputed writings to determine whether they were written by the same person (see e.g. Matter of Thomas v. Coughlin, 145 AD2d 695; DeJesus v. Cat Auto Tech Corp., 161 Misc2d 723; People v. Hunter, 34 NY2d 432; Ibanez v. Pfeiffer, 76 Misc2d 363; see also N.Y. CPLR §4536). It is also well-established that a trier of fact’s handwriting comparison may constitute substantial evidence to support an administrative determination so long as the trier of fact identifies “sufficient similarities between the two [writings]” to comprise substantial evidence that they were written by the same person (Matter of Smith v. Coughlin, 198 AD2d 726; Brown v. Fischer, 91 AD3d 1336; Matter of Johnson v. Coombe, 271 AD2d 780). Prior decisions of the Commissioner have implicitly recognized these principles within the context of student disciplinary hearings (Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912; cf. Appeal of Harlan, 40 id. 309, Decision No. 14,488).
Turning to the facts of the instant appeal, the hearing officer admitted into evidence the following exhibits regarding the student’s handwriting at the hearing:
Exhibits 3(a) through 3(h):
Handwriting examples of [the student]
Cardboard displaying photocopies (enlarged) of samples of handwriting exemplars and questioned handwriting from District Exhibit 2, District Exhibits 3(a) through 3(h), and District Exhibit 5.
Photocopies of questioned handwriting (marked as Q1A, Q1B, and Q2) and known handwriting exemplars provided to [the handwriting expert] (marked as K1, K2, K3, K4, and K5)
Enlargement of lower case “b” in K2, Q1 and Q2.
On appeal, petitioner has submitted copies of what appear to be Exhibits 3(a) through 3(h). Additionally, I note that certain letters are circled in this copy of Exhibits 3(a) through 3(h). Presumably this was done for comparison purposes, but it is unclear who circled the letters or when.
Based on the information in the record, the hearing officer concluded that the handwriting in Exhibits 3(a) through 3(h) matched the handwritten bomb threats. The hearing officer reasoned as follows:
I find based on a comparison of several left loops in the capital “B’s,” top loops in the lowercase “o’s,” and open bottoms of the lowercase “b’s” within District Exhibits 3(a) through 3(h) that [the student] wrote the [bomb threats] .... Most notably, I find that the lowercase “f’s,” “k’s,” and “g’s” in “f***ing” found in District Exhibit 2 are strikingly similar to the “f’s,” “k’s” and “g’s” found throughout District Exhibits 3(a) through 3(h).
The hearing officer further found that the same individual wrote the May 2010 and March 2013 bomb threats based upon “a comparison of the left loops in the capital ‘B’s,’ the top loops in the lowercase ‘o’s,’ and the open bottom of the lowercase ‘b’s’....”
While I acknowledge the hearing officer’s thorough attention to detail, on this record I do not find this analysis sufficient to establish the student’s guilt under the circumstances. Notably, the most prominent and distinctive letter in both inscriptions, particularly that of the March 2013 inscription, is a cursive capital “B” with a loop in the word “Bomb.” However, as petitioners point out, the handwriting exemplars do not show that the student uses cursive capital “B's” with loops. This is particularly significant, since one of the student’s names starts with the letter “B,” and he would write a capital “B” whenever writing or signing his name. While this discrepancy is not sufficient in and of itself to show that the hearing officer’s finding of guilt was not based on competent and substantial evidence, when coupled with respondent’s failure to produce any other persuasive evidence linking the student to the inscriptions and its failure to produce handwriting samples from other students reasonably suspected of writing the inscriptions, I find on this record that the hearing officer has not identified sufficient similarities between the inscriptions and the student’s handwriting exemplars to constitute competent and substantial evidence of the student’s guilt (cf. Appeal of a Student Suspected of Having a Disability, 55 Ed Dept Rep, Decision No. 16,912).
The record reflects that the district discovered the two bomb threats on May 26, 2010 and March 21, 2013 respectively, but there is no evidence as to the precise time or date when the bomb threats were written. The record further reflects that the only evidence linking the student to the bathrooms in question is that he appeared nervous and agitated when questioned about the 2013 bomb threat; “had some opportunity” to use the middle school bathroom in May 2010; and admitted that he used the high school bathroom near the lunch room once on the day that the 2013 bomb threat was discovered. It is a reasonable assumption that numerous students used the boys’ bathroom on the two days that the bomb threats were discovered, and the fact that the student appeared to be nervous during questioning does not establish his guilt. That is particularly true here, where the record indicates that the student had been questioned extensively about the May 2010 bomb threat but was not charged with any misconduct arising from this incident. Further, according to the hearing officer’s decision, the district questioned “[a]pproximately 4-5 students” and reviewed multiple handwriting samples in connection with the March 2013 incident. The other students’ handwriting samples were not admitted into evidence at the hearing and are not a part of the hearing record. Finally, the record indicates that there was a similar incident involving a bomb threat inscribed in a different middle school bathroom on the same day, March 21, 2013, and another student was disciplined for that incident. Again, no handwriting samples from that student were included in the hearing record.
Thus, even assuming that the hearing officer correctly determined that six letters in the bomb threats bore a resemblance to these same six letters in the student’s handwriting exemplars, I cannot find that the district sufficiently ruled out the possibility that another student may have authored the bomb threat (Appeal of Gorzka, 35 Ed Dept Rep 20, Decision No. 13,449) or that it provided competent and substantial evidence of the student’s guilt.
I further note that prior decisions of the Commissioner have included more than a trier of fact’s lay handwriting analysis to establish a student’s guilt involving similar charges by competent and substantial evidence. For example, in Appeal of a Student Suspected of Having a Disability (55 Ed Dept Rep, Decision No. 16,912), the following evidence, in addition to a principal’s lay handwriting comparison, supported a finding of guilt: (1) the student’s voluntary confession, witnessed by three district staff members; (2) interviews with other students; and (3) a review of classroom sign-out logs, custodial staff records and surveillance videos of the hallway outside the bathroom. Here, by contrast, the only evidence supporting a finding of guilt is the hearing officer’s handwriting analysis, which is not entirely consistent with the student’s handwriting exemplars. While this could constitute competent and substantial evidence of a student’s guilt under certain circumstances, here the district’s focus on only the student who is the subject of this appeal, failure to prove when the bomb threats were written and failure to establish a nexus between the student and the bathrooms in question preclude a reasonable finding that the hearing officer’s lay analysis alone constituted competent and substantial evidence of the student’s guilt. Therefore, because each of the ten charges centered on, or were a consequence of, the student’s authorship of the bomb threats, the findings of guilt must be annulled and the student’s suspension must be expunged from his record.
In light of this disposition, I need not address the parties’ remaining arguments.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the student’s suspension from June 13, 2013 through the end of the 2013-2014 school be expunged from his record.
END OF FILE
 Although petitioners name the superintendent, they seek no relief against him and did not serve him with a copy of the appeal. Therefore, the appeal is dismissed against the superintendent and all references to respondent are to respondent board of education.
 The hearing officer issued two separate findings of fact. The first, dated June 11, 2013, addressed the student’s guilt, while the second, dated June 12, 2013, addressed penalty. For purposes of this appeal, these two findings of fact shall be referred to generally as a single decision.
 I take administrative notice that district Policy 7313 governing the suspension of students, currently posted on respondent’s official website and last amended on September 10, 2013, indicates that an appeal of a long-term suspension must be made the board of education prior to commencement of an appeal to the Commissioner. It does not, however, state that such an appeal must be taken within 30 days or that the appeal must be received by the district clerk within such 30-day period.
 Therefore, I need not address respondent’s argument regarding the timeliness of the instant appeal: because respondent was supposed to, but did not, consider petitioners’ appeal, there is no date from which to calculate the 30-day timeline to bring an appeal pursuant to Education Law §310.
 Respondent submitted this information in an application pursuant to 8 NYCRR §276.5, which I accepted.
 I refer to the two inscriptions as “bomb threats” as this is how they are generally referred to throughout the record.
 This portion of my decision centers on the analysis of the hearing officer, as the superintendent adopted the hearing officer’s recommendations and did not offer an independent analysis of the evidence in the record.
 Although this decision was issued by a Magistrate Judge, it does not appear that either party filed exceptions to the Report and Recommendation.
 The district also offered into evidence Exhibit 11a, consisting of a “List of ‘Similar Traits’ identified on K1 through K5 compared to Q1 and Q2....” However, the hearing officer granted a request by petitioners to exclude this exhibit as well as the direct testimony of the handwriting expert and his written opinion (Exhibit 12).
 In addition to failing to submit a recording or written transcript of the underlying suspension hearing, respondent also failed to submit a copy of the exhibits which the hearing officer submitted into evidence.
 These documents consist of the student’s classwork and it does not appear that, within the context of these assignments, it would have been necessary for the student to circle certain letters.