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Decision No. 17,515

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Mexico Central School District regarding student discipline.

Decision No. 17,515

(October 1, 2018)

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

Ferrara, Fiorenza, P.C., attorneys for respondent, Allison L. Marley, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Mexico Central School District ("respondent") to discipline her son (“the student”).  The appeal must be dismissed.

At the time of the appeal, the student was 15 years old and attended respondent’s high school.  According to petitioner, sometime during the beginning of the 2016-2017 school year, the student was playing a video game at school with friends in which he “destroyed what looked like a school building.”  He then made, what is alleged by petitioner to be a joke, about being a “school shooter.”

On January 13, 2017, a pep rally was scheduled to be held at the district’s high school in the afternoon.  On the day of the pep rally, a teacher overheard two students at the school stating that they had overheard the student making statements that he was going to “shoot up the school” during the pep rally.  The teacher notified the assistant principal, who, in turn, reported the comment to the principal.  State troopers were also called.  The principal then spoke with the assistant principal, the School Resource Officer (“SRO”) and the student.  The student admitted to making comments about the pep rally being a good time to shoot up the school and that his nickname was “school shooter.”  The student claimed these statements were made as a joke.  The principal then contacted the superintendent to inform him about the student’s comments.

By letter dated January 13, 2017, the principal informed petitioner that the student was suspended for five days, beginning January 17, 2017, and that petitioner had a right to an informal conference with the principal at which time she could question complaining witnesses.  A superintendent’s hearing was scheduled for January 18, 2017 but was adjourned at the request of petitioner.  The hearing was eventually held on March 20, 2017 and was presided over by a hearing officer.  The student was charged with “[e]ndangerment (making threats to shoot up the school).”  The student pled not guilty to the charge at the hearing. 

In an undated decision, the hearing officer found the student guilty of the charge of endangerment “based on the credible testimonies [sic] and facts presented at the hearing.”[1]  By letter dated March 28, 2017, the superintendent informed petitioner that he had adopted the hearing officer’s determination that the student was guilty and determined that the student would be suspended until January 13, 2018.  The superintendent further stated that the student would be allowed to return to school on September 6, 2017; however, if he violated the school’s Code of Conduct prior to that time, he would be required to serve the rest of his suspension.[2]  Petitioner appealed this decision to respondent on April 11, 2017.  On May 11, 2017, respondent upheld the student’s suspension but directed that the 5-day suspension be expunged from the student’s record due to procedural issues with the notice of suspension.  This appeal ensued.

Petitioner alleges that the student’s remarks regarding the pep rally, those he made at other times about committing violent acts at the school, and his nickname of “school shooter” were all made in a joking manner.  Petitioner asserts that the single student witness presented by respondent at the long-term suspension hearing testified that he understood the comments made by the student to be a joke.  Petitioner alleges that there was no testimony or evidence that the student endangered the staff, students or property of the high school.  Petitioner also alleges that the long-term suspension was excessive because the student has no disciplinary history and he is not the only student who has made comments regarding school violence.  Petitioner seeks expungement of the long-term suspension from the student’s record. 

Respondent asserts that there was competent and substantial evidence of the charged misconduct to establish the student’s guilt and justify the long-term suspension imposed upon the student.  Respondent argues that the penalty imposed on the student is consistent with its Code of Conduct and is not so disproportionate as to warrant substitution of the Commissioner’s judgment for its own.  Respondent also asserts that petitioner and the student were afforded all requisite due process rights prior to the imposition of the long-term suspension. 

Initially, I note that the student’s 5-day suspension was already expunged by respondent, and the student has already served the long-term suspension.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Therefore, such claims are moot and the only issue before me is whether the student’s long-term suspension should be expunged from his record.

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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

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).

Here, the student pled “not guilty” to the charge against him at the long-term suspension hearing and it was therefore incumbent upon respondent to establish that the student engaged in the charged conduct (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438).  However, the student admitted that he had made the statements regarding shooting up the school on the day of the pep rally, which conduct formed the basis of the charge.  The student testified that he was joking, even though he acknowledged that the subject matter was “not really something to joke about.”  The student testified that he “never meant it,” and that “there was no real intention to harm anyone.”  The student also testified that no student ever told him they were scared by his statements.

Although the student pled “not guilty” at the hearing, he admitted making the statements at issue in the hearing and on appeal.  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).  Based on the above statements, I find that the student admitted to engaging in the conduct which formed the basis for the disciplinary charge against him.  Although the student also asserted that his conduct was intended as a joke and that he did not know any other students were frightened by his statements, whether the student intended the conduct as a joke or never intended to carry out the threat is irrelevant to a finding of guilt on the charge of endangerment; specifically, “making threats to shoot up the school” (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]).  Therefore, I find that the student admitted his guilt as to the charged conduct and that this constituted competent and substantial evidence of such guilt.

Petitioner also argues that the length of the long-term suspension was excessive.  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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). The record shows that, according to the superintendent’s letter dated March 28, 2017, the student’s long-term suspension through January 13, 2018 was “held in abeyance” and he was allowed to return to school on September 6, 2017 “on a probationary basis.”  Here, there is no evidence in the record indicating that the student did not return to school on September 6, 2017.  Therefore, it appears that the student’s suspension lasted through the end of the 2016-2017 school year in June 2017, and the student was permitted to return to school on the first day of the 2017-2018 school year. 

However, even if the student were suspended through January 2018, I would not find that the student’s suspension was so excessive as to warrant the substitution of my judgment for that of respondent.  Petitioner argues that the joking manner in which the comments were made, supported by the testimony of a student witness, support a reduced penalty.  Regardless of whether the student intended the conduct as a joke, the extremely serious subject matter of the student’s comments, particularly in this climate in which our nation is beset by an epidemic of school shootings, cannot be tolerated (see Appeal of P.K., 43 Ed Dept Rep 421, Decision No. 14,733).  Violence and threats of violence, even if intended as jokes, have no place in our schools.  Additionally, the student recognized the seriousness of his conduct when he testified at the hearing that it was wrong to make threats to shoot up the school; that he understood that such threats violate respondent’s code of conduct, and that he “could see” how making such threats “would scare people.”  For these reasons, I find no basis on this record upon which to substitute my judgment for that of respondent.

Finally, petitioner argues that the penalty was excessive because the student’s disciplinary record contained only “two minor warnings from the previous school year.”  I have already found, irrespective of the student’s anecdotal record, that the penalty imposed does not justify substituting my judgment for that of respondent.  Even 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 (Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159; Matter of Lutes, 25 id. 396, Decision No. 11,624).




[1] The hearing officer’s decision is not only undated but also does not contain the recommended penalty for the student.  However, there is an undated and unsigned document attached to the superintendent’s March 28, 2017 letter that discusses, among other things, the penalty recommended for the student.


[2] Attached to the superintendent’s March 28, 2017 letter is a document entitled “Recommendation for Penalty” that indicates the student has a plan pursuant to section 504 of the Rehabilitation Act of 1973, that the district’s Committee on Special Education (“CSE”) met on March 27, 2017, and that the CSE determined that there was “not a direct or significant connection between this disciplinary infraction and [the student’s] educational needs.”