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Decision No. 17,800

Appeal of K.M., on behalf of her son M.M., from action of the Board of Education of the Churchville-Chili Central School District regarding student discipline.

Decision No. 17,800

(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 her son M.M. (“M.M.”) 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.C., 59 Ed Dept Rep, Decision No. 17,799; Appeal of A.S., 59 id., Decision No. 17,801).  At all times relevant to this appeal, M.M. attended high school in respondent’s district.  On April 26, 2019, M.M. 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 M.M.’s involvement.

By letter dated April 26, 2019, the high school principal notified petitioner that M.M. had been charged with engaging in violent conduct and would be suspended for five days, through May 2, 2019.  The letter further indicated that, due to “the serious nature” of this matter, 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 1, 2019.  The letter advised petitioner of her and M.M.’s rights and indicated that the superintendent had appointed a hearing officer to conduct the hearing.  The hearing, which petitioner and M.M.’s father attended along with M.M., convened as scheduled.

At the hearing, M.M. denied the charge against him.  During the guilt phase of the hearing, video surveillance footage of the altercation (“the video”) was admitted into evidence, and, as relevant here, the principal testified regarding the impact of the altercation on both the high school and an adjacent middle school.  The principal indicated that, because the 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 M.M. guilty of engaging in violent conduct and recommended that he 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 M.M. 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 alleges that M.M. was denied his due process rights during the hearing.  Specifically, petitioner contends that M.M. was not advised of his right to remain silent and was improperly compelled to testify against himself.  Petitioner additionally asserts that M.M. was denied the opportunity to call a potential material witness because, during the hearing, the district did not provide M.M.’s father with the name of another student depicted on the video.  Moreover, petitioner avers that, during the guilt phase of the hearing, the hearing officer improperly admitted prejudicial evidence 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 M.M. “successfully br[oke] up a physical altercation that he did not initiate” and “[i]t is clear from the video that [M.M.] engage[d] solely for the purpose of ending the altercation.”  For relief, petitioner seeks reversal of respondent’s determination and either expungement of M.M.’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 M.M. was found guilty and consistent with the district’s code of conduct.  Respondent further asserts that the hearing officer afforded M.M. his due process rights and conducted the hearing without error.

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).

Here, petitioner avers that M.M. was deprived of his right to due process insofar as the hearing officer permitted an assistant principal – who was serving as a district witness – to ask M.M. questions, and the assistant principal “coerced” M.M. into admitting that he was depicted on the video.  I have reviewed the audio recording of the long-term suspension hearing and find that – contrary to petitioner’s claim that M.M. “was forced, compelled and coerced to testify and incriminate himself” – the hearing officer properly advised M.M. of his rights, including his right to testify if he so chose, and M.M. willingly answered the questions posed to him.  Moreover, the record reveals that both parties were given the opportunity to present their side of the story – although petitioner did not call any witnesses or present any evidence – and that petitioner waived the right to be represented by counsel (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,560).  Accordingly, petitioner has failed to establish that M.M. was denied any process which he was due pursuant to Education Law §3214(3)(c)(1) (see generally Appeal of N.F., 58 Ed Dept Rep, Decision No. 17,598; Appeal of M.N.K., 31 id. 419, Decision No. 12,686).[1]

Petitioner additionally contends that M.M. was deprived of his right to call witnesses because, during the hearing, the district declined to identify another student depicted on the video.  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 further 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 M.M.  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 M.M.

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).[2]

Moreover, the record does not support petitioner’s conclusory assertion that the hearing officer was prejudiced against M.M. (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, she 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 M.M. for 20 weeks is excessive under the circumstances.[3]  The video establishes that, although M.M. did not initiate the altercation, he joined in the altercation by grabbing another student around the midsection and pulling or pushing this other student while engaging in an active struggle with him.  The video additionally depicts M.M. striking or swinging at the student and pinning the student to the ground.  Moreover, according to the affidavit of the superintendent, “M.M. 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 M.M. 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 Doe, 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 M.M. 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 M.M. acted in self-defense.  Even if M.M. 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 M.M. 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 M.M. to return to school upon his completion of counseling.  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.  M.M.’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 arguments and find them to be without merit.




[1] To the extent that petitioner argues that the district did not establish M.M.’s identity through competent and substantial evidence, this argument is without merit.  During the hearing, both the principal and M.M.’s father identified M.M. in the video and described M.M.’s actions portrayed therein (compare Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438).


[2] Petitioner also objects that another assistant principal – who was presenting the district’s case and was not sworn in as a witness –improperly read into the record a statement that had been written by M.M. after the altercation.  Although petitioner avers that both M.M.’s statement and the assistant principal’s testimony should “have been precluded from consideration,” there is no evidence in the record establishing that the hearing officer did in fact consider such information in rendering his determination.


[3] Petitioner asserts that M.M.’s suspension through December 10, 2019 is a seven-and-a-half-month, or 29-week, suspension because it spans the summer months; however, Education Law §3214(3)(a) dictates that a student may be suspended only “from required attendance upon instruction.”  Because there is no evidence that M.M. was required to attend school in respondent’s district during the summer, M.M.’s suspension does not include the summer months and may accurately be characterized as a 20-week suspension.