Appeal of N.F., on behalf of her son C.O., from action of the Board of Education of the Livonia Central School District regarding student discipline.

Decision No. 17,598

(March 6, 2019)

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

ELIA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Livonia Central School District (“respondent”) to suspend her son (“the student” or “C.O.”) from school.  The appeal must be sustained in part.

During the 2017-2018 school year, C.O. attended eleventh grade at respondent’s high school.  On December 20, 2017, C.O. was involved in an altercation with another student (“student A”) in the school’s locker room.  In a referral to the principal, C.O.’s physical education teacher described the altercation as follows:

[C.O.] confirmed that [student A] had been bothering him and another student with an empty 2 liter bottle.  [C.O.] indicated he did not tell [student A] to stop, but became angry and put [student A] into a headlock [and then] shoved him into the lockers (in the locker room).  Both boys threw a punch and made contact before the altercation was broken up by a student.

The principal interviewed the students involved in the altercation and student witnesses.  The principal then contacted petitioner to notify her about the altercation and invited her to discuss the matter in person; petitioner accepted the invitation and met with the principal that day.

The parties disagree as to the events that transpired on December 20, 2017.  Generally, the parties agree that petitioner and the principal spoke about the incident, and the principal handed petitioner a letter dated December 20, 2017 in which the principal indicated that she was “considering” suspending the student based upon his actions that day.  Petitioner took the student home for the remainder of the school day on December 20, 2017.

By letter dated December 21, 2017, the principal notified petitioner that C.O. would be suspended from school for five days, starting on December 20, 2017.[1]  The letter noted that “[C.O.’s] due process rights were provided ... , you were notified in writing and by phone, and you choose [sic] to convene for an informal conference on 12/20/17.”  The letter also advised that a referral would be made to respondent’s superintendent for additional discipline if deemed necessary.

By letter dated December 21, 2017, the superintendent indicated that the district would convene a long-term suspension hearing based upon C.O.’s role in the locker room altercation and charged him with “disorderly conduct that endangered the safety, morals, health or welfare of other students.”  The letter further advised petitioner of C.O.’s rights and stated that the superintendent had appointed a hearing officer to conduct the hearing.

A hearing was held on January 4, 2018; it was attended by petitioner, C.O., the high school principal, and the district clerk.  In a written recommendation dated January 8, 2018, the hearing officer recommended that C.O. be found guilty of the charges against him.  With respect to penalty, the hearing officer noted that C.O.’s disciplinary record included seven referrals for non-compliance with staff directives or school rules.  Accordingly, the hearing officer recommended that C.O. be suspended for six weeks, “with the possibility for early reinstatement in the district’s discretion based on [C.O.] voluntarily engaging in counseling.”

By letter dated January 9, 2018, the superintendent notified petitioner that he had adopted the hearing officer’s recommendations regarding guilt and penalty.  The superintendent also adopted the hearing officer’s recommendation that petitioner be allowed to request C.O.’s early return to school under the conditions identified by the hearing officer.

By letter dated February 16, 2018, petitioner appealed the superintendent’s decision to respondent.  By letter dated March 12, 2018, respondent’s president notified petitioner that respondent had upheld the superintendent’s determination.[2]  This appeal ensued.

Petitioner asserts that respondent did not follow the procedures required to impose a short-term suspension; that the hearing officer did not give C.O. “a meaningful opportunity to provide his own narrative in his own defense;” and that the penalty imposed was excessive in light of the fact that C.O. acted in defense of another, was honest and cooperative, accepted full responsibility for his behavior, had no history of conflicts with other students, and had no prior record of suspension.  For relief, petitioner requests expungement of the short-term and long-term suspensions from C.O.’s record.

Respondent asserts that the appeal must be dismissed.  Specifically, respondent argues that it properly followed all procedures regarding C.O.’s short-term suspension; that the superintendent’s hearing was conducted properly; and that the penalty imposed was appropriate given C.O.’s conduct and anecdotal record.

First, petitioner alleges that respondent improperly suspended the student on December 20, 2017 and that she did not have the opportunity to request an informal conference prior to that time.  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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  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]).

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).

As noted above, on December 20, 2017, petitioner met with the principal to discuss the conduct in which C.O. had engaged earlier in the day.  When petitioner arrived at the high school, the principal handed her a letter dated December 20, 2017, in which the principal indicated that she was “considering” suspending the student from school.  The principal further states on appeal that she “verbally walked [petitioner] through” the contents of the letter, which indicated that petitioner had the right to an informal conference “and to ask questions of complaining witness(es).”  The principal avers that she asked petitioner if she was comfortable having an informal conference at that time, and petitioner indicated that she was.  Petitioner and the principal proceeded to discuss the incident; during this discussion, petitioner offered information about the student’s family history.

After the informal conference, the principal indicated that she “would consider” what she and petitioner had spoken about.  The principal additionally states that she “ask[ed] if [p]etitioner was able to take [C.O.] home while [she] considered what steps [she] was going to take.”  On the following day, the principal decided to suspend C.O. for five days.  The principal indicates that she “included the prior day, December 20th, as the first day of the suspension because she “felt this was only fair given that [C.O.] had been removed for [sic] class for the investigation and then ... went home with [petitioner].”

Although the record is not entirely clear on this point, I agree with petitioner that the principal excluded the student from school on December 20, 2017.  Specifically, the record supports a finding that the principal excluded the student from instruction by requesting that petitioner take him home on December 20, 2017 while she considered whether to suspend the student.  Respondent does not argue, and neither the December 20 nor December 21 written notices stated, that C.O. was considered a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  Although the principal attempted to mitigate her exclusion of C.O. retroactively by starting his suspension on December 20, 2017, this would mean that the student was, in fact, suspended even though the principal has submitted an affidavit to the contrary.  Therefore, I find on this record that, prior to her decision to impose a short-term out-of-school suspension, the principal excluded the student from instruction on December 20, 2017, and any reference to the student being suspended on this date must be expunged from his record.[3]  In light of this finding, I need not consider petitioner’s argument that the student was, in fact, suspended on December 20, 2017.

Turning to the student’s long-term suspension, I initially note that the record supports a finding that the student engaged in the charged conduct.  At the long-term suspension hearing, C.O. admitted his guilt to the charges against him; specifically, the student answered “yes” to two questions posed by the hearing officer concerning whether he was pleading guilty, and whether he was making such plea of his own free will.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).

In the petition, petitioner argues that the student was not provided a “meaningful opportunity to provide his own narrative” because the hearing officer generally directed her questions toward petitioner, and not C.O.  I have reviewed the audio recording of the long-term suspension hearing and find that, contrary to petitioner’s argument, both petitioner and the student were afforded a full and fair opportunity to present their side of the case.  The hearing officer specifically informed petitioner and the student of “the right to be able to present witnesses to testify” and that the student had the right to testify on his own behalf or to remain silent.  After the student pled guilty to the charged conduct, the hearing officer asked petitioner if she would like to offer any information that she “want[ed] [the hearing officer] to know,” and explained that this offer was “obviously open to [C.O.] as well.”  Therefore, I find no merit to petitioner’s argument that C.O. was denied an opportunity to be heard during the long-term suspension hearing.

Turning to the suspension imposed by respondent, 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).

Petitioner initially argues that respondent failed to adequately consider the mitigating factor that the student whom C.O. attacked “was kicking and brandishing a pop bottle toward [C.O.] and ... [another] student who [student A] had previously bullied.”  Prior decisions of the Commissioner have held that physical violence by a student is not acceptable and have generally declined to accept a student’s justification for fighting or other violent acts except in cases of self-defense (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323 [student’s fighting not excused where she sought to defend her brother]; Appeal of a Parent of a Student with a Disability, 53 id., Decision No. 16,574 [conduct provoked by victim]; Appeal of R.Y., 49 id. 336, Decision No. 16,046 [student alleged to be the victim of bullying and harassment]; Appeal of Steven and Mary Ann M., 39 id. 785, Decision No. 14,380 [alleged threats by victim]; but see e.g. Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,335 [student’s actions justified as self-defense under the circumstances]).  Self-defense is a limited defense insofar as it only provides justification for acts which are necessary to protect the individual from attack, and only permits sufficient force to reasonably provide such protection (see Dupre v. Maryland Mgmt. Corp., 283 AD 701; Van Vooren v. Cook, 273 AD 88; Decker v. Werbenec, 36 Misc2d 220; Zannone v. Pollino, 155 NYS2d 836; Curtis v. Kozeluh, 50 NYS2d 883; Appeal of J.M., 57 Ed Dept Rep, Decision No. 17,335).

Here, while petitioner has alleged that student A provoked C.O. by “kicking” and “brandishing a [soda] bottle in the student’s face,” I cannot find that these actions placed C.O. in a position where he would be justified in committing acts necessary to protect himself from attack (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323).  The record demonstrates that, in response to alleged “kicking” and waving of a soda bottle in his direction, C.O. placed student A in a “chokehold” and “push[ed] him against a locker.”  There is no indication in the record that C.O. was unable to walk away from student A to avoid this confrontation (see Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046; Appeal of P.M., 44 id. 437, Decision No. 15,223).

Petitioner additionally contends that C.O.’s actions were justified, in part, because student A had bullied a classmate.  While bullying cannot be tolerated in public schools, student A’s alleged bullying of another student does not justify C.O.’s physical assault in the least.[4]  Therefore, on this record, I do not find that C.O. acted in self-defense such that his actions on December 20, 2017 were justified.

Moreover, I cannot find that a six-week suspension for placing a student in a chokehold and pushing him against a locker is so excessive as to justify substituting my judgment for that of respondent.  Physical violence in public schools cannot be tolerated, and respondent was well within its discretion to impose a six-week suspension given C.O.’s conduct (see e.g. Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323; Appeal of R.C., 49 id. 275, Decision No. 16,023).  Moreover, after finding C.O. guilty of the charges, the hearing officer properly considered C.O.’s anecdotal record – which included seven prior disciplinary referrals for non-compliance with staff directives or school rules – in recommending a suspension of six weeks.[5]  While petitioner contends that these are minor offenses, she does not allege that they were improperly included in C.O.’s anecdotal record, or that respondent could not consider them in determining an appropriate penalty.  Therefore, based on the record before me, I find that petitioner has failed to meet her burden of proving that the penalty imposed on C.O. is so excessive as to warrant substitution of my judgment for that of respondent.

Finally, petitioner argues that student A received a lesser disciplinary penalty than C.O.  However, the fact that another student involved in the incident may have received different or lesser penalties, or no disciplinary measures at all, does not, in and of itself, provide a basis for nullifying the discipline imposed on C.O. (Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109; Appeal of R.Y., 49 id. 336, Decision No. 16,046).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, to the extent C.O.’s record reflects that he was suspended on December 20, 2017, such suspension be annulled and expunged from his record.

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