Appeal of M.B. and A.W., on behalf of their son K.B., from action of the Board of Education of the Whitesboro Central School District regarding student discipline. 

Decision No. 17,378

(April 24, 2018)    

Legal Services of Central New York, attorneys for petitioners, Susan M. Young, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Whitesboro Central School District (“respondent”) to suspend their son (“the student”).  The appeal must be sustained in part.

During the 2014-2015 school year, the student attended respondent’s middle school.  On December 10, 2014, the student sent a group text message/chat (“text message”) in which he stated that: “Id [sic] much rather kill” three named students and briefly gave reasons.  The parties do not dispute that, prior to issuing a notice of suspension, respondent’s middle school principal (“principal”) “told [the student’s] father to keep [the student] out of school on December 11, 2014[1] and December 15, 2014 so that he could investigate the incident.”  On December 16, 2014, the principal met with the student and petitioner M.B. (“father”) and showed them a screen shot of the group text chat.  The student admitted that he sent the text message.  The principal informed the student and his father that the student was suspended and hand-delivered a letter dated December 16, 2014.  The letter indicated that the student was suspended for five days for “Endangering stud/staff/prop – [the student] sent a [text] message to some students that he was going to kill them.”

The letter advised petitioners of the right to have an informal conference, but went on to say, “[s]ince we met today, December 16, 2014, it will not be necessary to schedule a conference.”  The letter did not advise petitioners of their right to question complaining witnesses.

By notice dated December 17, 2014, petitioners were notified that a superintendent’s hearing would be held on December 22, 2014.  The notice charged the student with “[e]ndangering students” and “[m]aking threatening statements.”  The hearing was adjourned so that petitioners could obtain counsel, and the hearing, presided over by a hearing officer, convened on January 7, 2015.[2]  The hearing officer found the student guilty based upon the evidence and testimony adduced at the hearing and recommended that the student be suspended until April 7, 2015. 

By letter dated January 9, 2015, the superintendent notified petitioners that he accepted the hearing officer’s recommendations regarding guilt and penalty.  By letter dated February 6, 2015,[3] petitioners appealed the short-term and long-term suspensions to respondent.  By letter dated March 6, 2015, respondent indicated that it had upheld the superintendent’s determination, but it agreed to expunge “any reference to [the student] being suspended from school on December 12, 15 and 16, prior to the notice of suspension....”  Respondent declined to expunge the five-day short-term suspension, claiming that petitioners were not notified of their right to question complaining witnesses because “there was no prejudice to [the student] because there was no question that [the student] sent the electronic message.”  This appeal ensued.

Petitioners challenge both the short-term and long-term suspensions on appeal.  Regarding the short-term suspension, petitioners contend that the student was impermissibly suspended for five days because respondent did not notify petitioners of the right to question complaining witnesses.  Regarding the long-term suspension, petitioners argue that the finding of guilt was not based on competent and substantial evidence and that the four-month suspension was excessive.  Petitioners further argue that the district failed to produce an intelligible record of the hearing.  Petitioners seek expungement of the short-term and long-term suspensions from the student’s record. 

Respondent argues that the petition must be dismissed for failure to state a claim.  Respondent contends that the audio recording of the student discipline hearing was adequate and intelligible, that any inaudible portions of the recording were harmless error, and that there was competent and substantial evidence of the student’s guilt. 

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

In this case, the principal’s December 16, 2014 letter did not comply with the written notice requirement under Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations in that it failed to inform petitioners that they could request an opportunity to question complaining witnesses (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of P.D., 46 id. 50, Decision No. 15,438; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).  Contrary to respondent’s arguments, the fact that petitioners were offered an informal conference and in fact met with the principal to review the evidence does not excuse respondent’s failure to provide proper written notice (see e.g., Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031).  Accordingly, the five-day suspension must be annulled and expunged from the student’s record.

With respect to the long-term suspension, 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 this case, the parent of one of the students named in the text message testified that her son told her that the student had talked “about killing people for a few months now” and that he had been told by one of the recipients of the text message that he was on the “kill list.”  She also testified that her son was upset because one of his friends wanted to kill himself.  Her son showed her the text message and she contacted the police and the school district. 

A police officer testified that he went to the student’s home and spoke to the student and the student’s father.  The police officer further testified that the student admitted that he had a “kill list” and when asked how long he had been thinking about doing this, the student said about seven or eight months.  The police officer viewed the student’s iPad tablet and verified that there was a threat to kill three other students.  

The student admitted at the hearing to sending the text message containing the threat to kill the three students and it is clear from the questioning that the student also admitted to telling the police officer that he had been thinking about doing this for seven or eight months and that he had asked to see a therapist.  The student explained that he did not consider the group text message to be a threat to kill the three students and that he had just received a text message from another friend who was contemplating suicide.  He further explained at the hearing that he then “mentioned that I would rather kill someone else than let [my friend] die.”

On this record, the student has admitted to sending the group text message in which he expresses his desire to kill three other students.  The record indicates that the student had maintained a “kill list” and stated to police that he had contemplated killing other students for seven or eight months.  This belies the student’s explanation that the group text message was not a threat to kill, but rather a joking attempt to cheer up a suicidal friend.  In any case, whether the student intended the conduct as a joke and/or never intended to carry out the threat is irrelevant to a finding of guilt on the charge of endangering other students by making a threatening statement (see Saad-El-Din v. Steiner, 101 AD3d 73, 77-78; Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; cf. Cuff v. Valley Cent. Sch. Dist., 677 F3d 109, 114 [whether a student intended a threat as a joke or never intended to carry it out is irrelevant to a determination of whether a resulting suspension violated his constitutional right to free speech]).

Petitioners further allege that respondent failed to show that the suspension was based on competent and substantial evidence in that there was no evidence to show that school staff, students or property were endangered by the text message, or that the student had any reason to believe that the text message would come to the attention of school authorities.  I disagree.  While the text message does not include any reference to the school, or identify the three named individuals as students, the record indicates that those individuals were fellow students and that the text message became accessible to other students not on the original group text message.  The record indicates that the text message was forwarded by one of the students in the original group text message to one of the three named students.  Thus, it was reasonably foreseeable that the message, which contained a threat to kill, would be shared with other students at the school, which would create a risk of substantial disruption of the operation of the school.  In any case, petitioners have not met their burden of proving that respondent’s finding of the student’s guilt of the charges was not based on competent and substantial evidence in this regard.  

Petitioners also claim that the district failed to keep an “intelligible verbatim recording or transcript of the hearing ... to permit a meaningful review of the hearing for the Board of Education and the Commissioner” and argue that “because large parts of the audio tape were unintelligible, there was an inadequate record for the Board to base its decision.”  An intelligible record of the hearing must be maintained in order to permit a meaningful review (Education Law §3214[3][c]; Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of A.G., 41 id. 262, Decision No. 14,681). 

In their petition, petitioners raise several examples of portions of the testimony that the transcript indicates are “inaudible.”  Upon a review of the transcript included in the record, I find that there are hundreds of indications that the recording is “inaudible” or “unable to transcribe”, primarily in the answers given by various witnesses to questions that are clearly presented in the transcript.  Petitioners argue that the gaps in the record were prejudicial because they include portions of the testimony of the parent who reported the group text message/chat and portions of the student’s testimony explaining his text message and the statements he made to a police officer.  Petitioners further argue that the unintelligible portions of the record included testimony “that was prejudicial but not included in the charges” but they do not specifically identify the testimony to which they are referring.

As noted above, 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). 

Petitioners have not explained what is contained in the inaudible portions of the transcript that would have mitigated against the finding of guilt or the penalty imposed.  Upon careful review of the transcript, I find that the record was adequate to permit meaningful review and that petitioners have not met their burden of proving that respondent’s failure to maintain a complete and intelligible record of the hearing was prejudicial and not harmless error (see Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of a Student with a Disability, 52 id., Decision No. 16,434; Appeal of A.G., 41 id. 262, Decision No. 14,681). 

With respect to the testimony of the parent, she clearly disavowed having the qualifications to judge whether the group text message/chat was a real threat, and the inaudible portions relate to her decision to make a report to police and her interaction with police, which do not have any bearing on the student’s guilt.  With respect to the testimony of the student, the record is sufficiently clear that the student was asserting that the group text message/chat was not intended as a threat, but rather was in response to a message from a friend who was contemplating suicide.  As the hearing officer found, the record is also clear that the student explained his statement to the police officer concerning thinking about killing for seven or eight months as something he said under pressure to get through the interview and in the hope that he would be referred to a therapist.  Petitioners offer no explanation of what the student said in his inaudible responses beyond what was in the record that would impact either the finding of guilt or the penalty imposed. 

While I remind respondent of its obligation to maintain an intelligible record of the hearing pursuant to Education Law §3214(3)(c) and direct respondent to take steps to assure full compliance with that statute in the future, I decline to overturn respondent’s finding of the student’s guilt of the charged misconduct on this ground in light of the student’s admission of guilt and petitioners’ failure to prove that respondent’s error in failing to maintain a complete and intelligible record was prejudicial (see Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581). 

Therefore, I find that respondent’s determination that the student is guilty of the charge of endangering other students and making threatening statements is supported by competent and substantial evidence in the record and is not arbitrary or capricious or in violation of law.

Petitioners further argue that the penalty of a four-month suspension was excessive and the suspension should be expunged on that basis.  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 S.U., 57 Ed Dept Rep, Decision No. 17,159; Appeal of F.W., 48 id. 399, Decision No. 15,897).

The student has been found guilty of endangering other students by threatening to kill them.  Such misconduct is serious and warrants a significant penalty, even where, as here, the student did not have a significant prior disciplinary record.  I do not find a four-month suspension to be so disproportionate to the offense as to warrant substitution of my judgment for that of the board of education.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge the student’s short-term suspension, from December 16, 2014 through January 6, 2015, from his record.

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