Appeal of A.C., on behalf of his son E.C., from action of the Board of Education of the Churchville-Chili Central School District regarding student discipline.

Decision No. 17,799

(December 9, 2019)

Law Office of James Cole, attorneys for petitioner, James W. Cole, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

TAHOE., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Churchville-Chili Central School District (“respondent”) to suspend his son E.C. (“E.C.”) from school.  The appeal must be dismissed.

This is one of three appeals challenging student suspensions arising out of the same incident (see Appeal of A.S., 59 Ed Dept Rep, Decision No. 17,801; Appeal of K.M., 59 id., Decision No. 17,800).  At all times relevant to this appeal, E.C. attended high school in respondent’s district.  On April 26, 2019, E.C. was involved in a physical altercation that broke out among several students in the high school’s cafeteria, during which a school security officer (“security officer”) was injured.  As discussed below, the parties disagree as to the nature of E.C.’s involvement in the altercation.

By letter dated April 26, 2019, the high school principal notified petitioner that E.C. had been charged with engaging in violent conduct and would be suspended for five days, through May 2, 2019.[1]  The letter further indicated that, due to “the serious nature of [E.C.’s] misconduct,” the principal had recommended that respondent’s superintendent schedule a hearing to determine whether to impose an additional, long-term suspension.

By letter dated April 26, 2019, the superintendent notified petitioner that a long-term suspension hearing would be held on May 2, 2019.  The letter advised petitioner of his and E.C.’s rights and indicated that the superintendent had appointed a hearing officer to conduct the hearing.  The hearing, which petitioner and E.C.’s mother attended along with E.C., convened as scheduled.

At the hearing, E.C. denied the charge against him.  During the guilt phase of the hearing, video surveillance footage of the altercation (“video”) was admitted into evidence, and, as relevant here, an assistant principal from the high school testified regarding the impact of the altercation on both the high school and an adjacent middle school.  The assistant principal indicated that, because a security officer was injured during the altercation, officials at the high school implemented a 45-minute hold-in-place, prohibiting students from moving about the school, and called 911, resulting in the arrival of an ambulance on campus that delayed the start of the school day at the middle school.

Ultimately, the hearing officer found E.C. guilty of engaging in violent conduct and recommended that E.C. receive an additional 20-week suspension.  In a decision dated May 2, 2019, the superintendent adopted the hearing officer’s finding of guilt and suspended E.C. through December 10, 2019.  Petitioner appealed the superintendent’s decision to respondent.  By letter dated May 31, 2019, respondent upheld the superintendent’s decision.  This appeal ensued.

Petitioner asserts that E.C. was denied the opportunity to call a potentially relevant and material witness at the long-term suspension hearing because, during the hearing, the district did not provide E.C.’s mother with the name of another student depicted on the video.  Petitioner further avers that, during the guilt phase of the hearing, the hearing officer improperly admitted prejudicial evidence into the record regarding the security officer’s injuries, the hold-in-place, and the delay at the middle school.  Finally, petitioner claims that the long-term suspension was excessive under the circumstances and violative of the district’s code of conduct because, although E.C. was involved in the altercation, he was not the aggressor and instead “engage[d] solely for the purpose of ending the altercation.”  For relief, petitioner seeks reversal of respondent’s determination and either expungement of E.C.’s long-term suspension or modification of the penalty to conform to the district’s code of conduct.

Respondent posits that the imposition of the long-term suspension was not excessive, as the penalty is proportionate to the offense of which E.C. was found guilty and consistent with the district’s code of conduct.  Respondent further asserts that the district neither infringed upon petitioner’s right to call witnesses nor submitted any improper evidence at the hearing.

Education Law §3214(3)(c)(1) provides that no student may be suspended in excess of five school days unless the student and the person in parental relation to the student have an opportunity for a fair hearing, upon reasonable notice, at which the student has the right to be represented by counsel, to question witnesses who testify against the student, and to present witnesses and other evidence on his or her own behalf (Appeal of L.M., 58 Ed Dept Rep, Decision No. 17,561; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  As long as students receive a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist., 91 NY2d 133; see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

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).

To the extent that petitioner alleges that he was deprived of the right to call a potential material witness at the long-term suspension hearing, this argument is improperly raised for the first time on this appeal.  The record reveals that petitioner did not seek to call any witnesses at the hearing, nor did he allege that the district had infringed upon his right to call witnesses when he appealed to respondent.  Although E.C.’s mother did ask during the hearing “Who is that rushing in?” regarding a student depicted on the video, she did not ask to call that student as a witness or otherwise seek that student’s testimony.  Indeed, when the hearing officer asked petitioner if he had “any witnesses or evidence ... to put on the record,” petitioner stated that his “only evidence” was E.C.’s “latest report card,” which the hearing officer declined to admit during the guilt phase.  Because petitioner did not seek to call any witnesses during the hearing and no violation of E.C.’s right to call witnesses was alleged or adjudicated below, this issue may not be raised on appeal to the Commissioner under Education Law §310 (see Appeal of L.Z. and M.S., 56 Ed Dept Rep, Decision No. 17,034; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).

Regardless, even if the issue were reviewable, the Commissioner has previously held that there is no authority supporting a right to discovery in a long-term suspension hearing (see Appeal of A.B., 57 Ed Dept Rep, Decision No. 17,172; Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723).  Thus, petitioner had no right to compel the district to identify or produce witnesses, or to introduce certain evidence into the record (Appeal of J.D. and J.D., 58 id., Decision No. 17,551).  Rather, petitioner’s remedy was to request that the hearing be adjourned to issue a subpoena for this student’s attendance, as expressly authorized by Education Law §3214(3)(c)(1) (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

Petitioner additionally argues that, during the guilt phase of the hearing, the hearing officer improperly admitted irrelevant evidence submitted by the district regarding the security officer’s injuries, the hold-in-place, and the delay at the middle school, which prejudiced the hearing officer against E.C.  In so arguing, petitioner improperly relies on prior Commissioner’s decisions stating that a student’s anecdotal record may be received into evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges (Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of T.S., 57 id., Decision No. 17,233; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562).  These decisions are inapposite.  The prohibition on premature admission of a student’s anecdotal record serves to exclude the introduction of character or propensity evidence and prevent the finder of fact from concluding that a student is guilty of the charged conduct because he or she engaged in past misconduct (see generally Guide to New York Evidence 4.11; People v Mullin, 41 NY2d 475).  Such concerns are not present here, where the district’s witness testified regarding the impact of the altercation that was the focus of the hearing and did not offer testimony concerning any prior acts of misconduct committed by E.C.

In any event, to the extent that petitioner argues that the district’s evidence regarding the security officer’s injuries, the hold-in-place, and the delay at the middle school was irrelevant or unfairly prejudicial, there is no indication in the record that such evidence served as the basis for the hearing officer’s determination of guilt (see Appeal of B.N., 31 Ed Dept Rep 464, Decision No. 12,701).  Thus, even assuming, arguendo, that the hearing officer erred in admitting such evidence during the guilt phase rather than the penalty phase of the hearing, petitioner has failed to establish that any error in admitting such evidence was prejudicial and not merely harmless (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).

Moreover, the record does not support petitioner’s conclusory assertion that the hearing officer was prejudiced against E.C. (see Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581).  There is a presumption of honesty and integrity in those serving as adjudicators (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065).  Petitioner thus bears the burden of rebutting this presumption; however, he has submitted no proof that the hearing officer exhibited any bias.

Turning to petitioner’s challenges to the penalty, 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).

I do not find that respondent’s suspension of E.C. for 20 weeks is excessive under the circumstances.[2]  The video establishes that, although E.C. did not initiate the altercation, he joined in the altercation by repeatedly pushing other students, striking or swinging at one student’s head approximately three times, and pinning this student to the ground.  Moreover, according to the affidavit of the superintendent, “E.C. was scheduled to be in ... class” at the time of the altercation and “did not have any reason to be in the ... cafeteria.”

Petitioner maintains that E.C. used “reasonable and necessary force to gain control of the out-of-control initial aggressor.”  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 J.M., 57 id., Decision No. 17,335 [student’s actions justified as self-defense under the circumstances]).  Self-defense is a limited defense insofar as it provides justification only for acts which are necessary to protect the student from attack and permits only sufficient force as is reasonable to 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, the video shows that E.C. actively involved himself in the altercation despite not being targeted by any of the students who were initially involved in the altercation, refuting petitioner’s claim that E.C. acted in self-defense.  Even if E.C. initially intervened with the intent of breaking up the altercation, as petitioner maintains, engaging in a physical altercation and striking another student constitute serious misconduct.  Moreover, the altercation at issue resulted in staff injury and impacted more than 1,000 students between the implementation of the hold-in-place and the delay at the middle school.  Accordingly, I cannot conclude that respondent’s determination to suspend E.C. through December 10, 2019 is so excessive as to warrant substituting my judgment for that of respondent (see Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,110 [one year suspension for a student who engaged in, but did not initiate, a fight that resulted in a lockdown]; see also Appeal of C.D., Sr., 49 id. 381, Decision No. 16,057).

Petitioner additionally contends that the long-term suspension contravenes the district’s code of conduct insofar as the code of conduct indicates that counseling “should be considered to make disciplinary situations learning opportunities for students.”  Specifically, petitioner argues that respondent should have modified the suspension to permit E.C. to return to school upon his completion of counseling for anger management.  Contrary to petitioner’s contention, a school district cannot condition a student’s return to school on participation in counseling or community service (Appeal of L.H., 43 Ed Dept Rep 315, Decision No. 15,005; Appeal of R.M. and L.M., 43 id. 155, Decision No. 14,951).  While the code of conduct contemplates counseling as a potential strategy to address misconduct, it expressly states that suspension is a “severe penalty” that may be imposed on students who engage in “violent or disruptive” conduct.  E.C.’s suspension for engaging in violent conduct therefore cannot be said to violate the district’s code of conduct.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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