Decision No. 17,834
Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the West Irondequoit Central School District regarding student discipline.
Decision No. 17,834
(April 21, 2020)
The Legal Aid Society of Rochester, attorneys for petitioners, Jonathan Falk, Esq., of counsel
Harris Beach, LLP, attorneys for respondent, Anne M. McGinnis, Esq., of counsel
TAHOE., Interim Commissioner.--Petitioners appeal the decision of the Board of Education of the West Irondequoit Central School District (“respondent”) to impose discipline upon their son (“the student”). The appeal must be sustained in part.
During the 2018-2019 school year, the student attended eleventh grade at respondent’s Irondequoit High School. On September 20, 2018, the student was the victim of a physical altercation with other students which was recorded, posted, and viewed online by other students. On September 22, the student posted three separate messages via Snapchat, a social media application, which are the subject of this appeal:
Remember who u Is tho? Don’t forget the words u say in a situation you on know none bout. And don’t get mad when u regret it.
Fuck feelings. Ion gotta heart no more. Summer when nobody helped. I’m me bruh.
Keep ya cams ready for Monday. I’m going viral.
The messages also included several emojis. The third post was accompanied by a picture of the student making a hand gesture.
During the weekend of September 22 and 23, 2018, respondent received approximately 19 messages regarding the student’s posts through the “Safe School Helpline,” an online system by which individuals can anonymously report potential school security threats. Many of the reports mentioned the student by name and expressed concern that the student intended to commit “an act of violence” at the high school on Monday, September 24, 2018. One report additionally indicated that the student was “rumored to have a gun in [his] possession,” while another stated that the student had “apparently also sent a [S]nap[chat message] of a gun.” A district coach and teacher were also contacted over the weekend by students with similar concerns; both employees emailed the high school principal on September 23, 2018 to report the potential threat.
In response to these communications, respondent contacted the Irondequoit Police Department. The record reflects that the police had independently received calls from community members concerning the student’s Snapchat messages. The police commenced an investigation, during which they obtained a sworn statement from an individual who recounted that he had witnessed the student in possession of a handgun on or about September 17, 2018. This witness further recalled that the student had claimed to possess two guns, although the witness had seen only one. The record reflects that the police informed the district that the student had been seen with a gun prior to posting his September 22, 2018 Snapchat messages.
In addition to the police investigation, respondent’s executive director of operations commenced an investigation into the reports that the district had received. The investigation revealed that the student’s “school team had concerns about the [s]tudent’s mental state prior to his Snapchat posts on September 22, 2018.” Specifically, district employees believed that the student “was in crisis.” According to the record, the student was not regularly attending school, was not living in the home with his parents, and was essentially homeless since the summertime, living either on the streets or with other students in the district. When in school, “the [s]tudent’s behavior was increasingly erratic.”
The student was subjected to a “mental health arrest” sometime during the evening of September 23, 2019, or early morning of September 24, 2018, and taken to the University of Rochester Medical Center for a mental health evaluation. Mental health evaluators determined that the student was not a danger to himself or to the community, and he was released on Monday evening, September 24, 2018.
Meanwhile, the district generated and sent a recorded telephone message to district residents on the morning of Monday, September 24, 2018. The message generally informed residents that “a person who caused concern ... was found late Sunday night and [was] being questioned by the Irondequoit Police Department.” The call further advised residents that the school would “have an increased presence of police and security” on Monday, September 24.
That same morning, petitioner P.G. met with the high school principal and assistant principal, who showed her the student’s Snapchat messages and explained the district’s concerns. The record reflects that district security personnel hand-delivered a notice of short-term suspension to petitioner P.G. in the afternoon of September 24, 2018 suspending the student from September 24 through 28.
Also on September 24, 2018, the high school principal requested a long-term suspension hearing on charges of “insubordination” and “endangering the health, safety, and welfare of [the student] and others.” By hand-delivered letter dated September 24, 2018, the superintendent scheduled the hearing for September 28, 2018 and appointed respondent’s assistant superintendent for finance to serve as the hearing officer. After adjournments agreed to by petitioners and the district, the hearing was held on two days: October 4 and December 18, 2018. During the hearing, the student admitted that the Snapchat messages in question had been posted to his Snapchat account.
In a written recommendation, the hearing officer recommended that the student be found guilty of the charges against him and receive a 40-week suspension as a penalty. By letter dated December 20, 2018, respondent’s superintendent adopted the findings and recommendations of the hearing officer. Petitioners appealed the superintendent’s determination to respondent, and respondent upheld the superintendent’s determination by letter dated February 15, 2019. This appeal ensued.
Petitioners argue that the student’s short-term suspension must be expunged because respondent failed to provide legally sufficient written notice prior to imposing the student’s suspension. Petitioners also argue that the student’s long-term suspension must be expunged because: (1) the hearing officer was biased; (2) respondent did not prove that the student sent the Snapchat messages; (3) the Snapchat messages were not a threat to the school and were protected speech under the First Amendment to the United States Constitution; and (4) the student’s speech occurred off-campus and it was not foreseeable that the posts would reach school personnel. Petitioners also argue that the charge of insubordination is not supported by the evidence in the hearing record. Petitioners request expungement of the student’s short-term and long-term suspensions from his record.
Respondent denies petitioners’ contentions and asserts that the short-term and long-term suspensions were lawful. Respondent further asserts that it proved the charges against the student by competent and substantial evidence. In addition, respondent argues that petitioners improperly seek to supplement the hearing record by submitting new affidavits.
First, I must address a procedural issue. Petitioners submit affidavits with their petition that were not introduced into evidence at the long-term suspension hearing below. Specifically, petitioners submit: (1) an affidavit by a psychologist opining on the appropriateness of actions taken by respondent in response to the student’s Snapchat messages and whether the messages themselves should have been construed as a threat by respondent; and (2) affidavits by two witnesses – a district parent and her child – who testified at the hearing. Petitioners may not augment the hearing record with additional information that they could have introduced, but did not introduce, at the hearing (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438). To hold otherwise would contravene Education Law §3214(3)(c)(1), which requires that, after a long-term suspension hearing, “[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.” The three affidavits were not a part of the record before respondent on appeal and, therefore, I cannot consider them here (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of a Student with a Disability, 57 id., Decision No. 17,395; Appeal of R.C., 49 id. 275, Decision No. 16,023).
Petitioners also argue that the hearing officer was biased. There is a presumption of honesty and integrity in those serving as adjudicators, and petitioners have the burden of rebutting this presumption (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of a Student with a Disability, 49 id. 161, Decision No. 15,986). Education Law §3214(3)(c) provides that “the superintendent shall personally hear and determine the suspension proceedings or may, in his or her discretion, designate a hearing officer to conduct the hearing.” In this case, the superintendent designated the assistant superintendent for finance as the hearing officer. Although petitioners suggest that a school employee lacks the requisite impartiality to serve as a hearing officer, they have not explained why a school officer – the superintendent – can exercise the requisite impartiality as contemplated by the statute while a school employee cannot. Petitioners additionally assert that the hearing officer was biased because he rendered two evidentiary rulings with which they disagree; however, such disagreement does not demonstrate bias. Therefore, I reject petitioners’ argument that the hearing officer was biased against them.
Turning to petitioners’ challenge to the student’s short-term suspension, 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[b], 8 NYCRR §100.2[l]; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 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[b], 8 NYCRR §100.2[l]).
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 T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).
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, respondent failed to provide petitioners with written notice prior to the imposition of the student’s short-term suspension. The record reflects that petitioner P.G. met with the principal and assistant principal in the morning on September 24, 2018; respondent characterizes this meeting as the informal conference. Later that afternoon, after the informal conference, district security personnel hand-delivered a written notice of suspension to petitioner P.G. indicating that the student would be suspended between September 24 through September 28, 2018. There is no proof in the record that written notice was provided to petitioners prior to the informal conference as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l). Although nothing prohibits a district from personally delivering the notice of suspension during an informal conference where both the complaining witness(es) and the principal are present and the suspension has not yet started, the record indicates that the notice of suspension was served after the informal conference concluded (see e.g. Appeal of F.L. and D.L., 55 Ed Dept Rep, Decision No. 16,888). Respondent’s provision of written notice after the informal conference defeated the purpose of the written notice requirement (see Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269).
Moreover, the written notice dated September 24, 2018 did not, as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), apprise petitioners of their right to question complaining witnesses (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of a Student with a Disability, 58 id., Decision No. 17,503). Therefore, respondent failed to deliver legally sufficient notice prior to imposition of the student’s short-term suspension. As such, the student’s short-term suspension must be expunged from his record (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652; Appeal of a Student with a Disability, 58 id., Decision No. 17,553).
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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).
Petitioners initially argue that respondent failed to prove at the long-term suspension hearing that the student was the person who sent the Snapchat messages. Petitioners, however, did not raise this claim at the hearing or in their appeal to respondent. Therefore, petitioners cannot raise this objection for the first time in an appeal pursuant to Education Law §310 (see Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384).
In any event, the record reflects that the student sent the Snapchat messages. At the hearing, the student admitted that the subject Snapchat messages were sent from his Snapchat account. 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). Therefore, even if this issue were before me, I would find that the district established, through competent and substantial evidence, that the student sent the Snapchat messages.
Petitioners next argue that the student’s Snapchat messages were protected speech under the First Amendment and respondent lacked authority to discipline him for such speech. It is well-settled that school officials may discipline a student for speech consistent with the First Amendment where there are facts that might reasonably have led such officials to forecast substantial disruption or material interference with school activities (Tinker v. Des Moines Independent Community School District, et al., 393 US 503; Cuff v. Valley Central School District, 677 F3d 109; Wisniewski v. Board of Education of Weedsport Central School Dist., 494 F3d 34). As the Second Circuit stated in Cuff v. Valley Central School District (677 F3d 109):
This test does not require school administrators to prove that actual disruption occurred or that substantial disruption was inevitable. Rather, the question is whether school officials might reasonably portend disruption from the student expression at issue (internal quotations omitted).
In other words, the relevant test is whether it was reasonably foreseeable that a student’s speech would cause substantial disruption or material interference with school activities. “[U]ndifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression”; rather, school authorities must have “reason to anticipate that [a student’s expression will] substantially interfere with the work of the school or impinge upon the rights of other students” (Tinker v. Des Moines Independent Community School District, et al., 393 US 503). “The test is an objective one,” and actual disruption or interference, while relevant, is not required (Cuff v. Valley Central School District, 677 F3d 109).
The Second Circuit has also held that the fact that student speech occurs off school property does not insulate a student from discipline where the speech poses a reasonably foreseeable risk that it would come to the attention of school authorities and materially and substantially disrupt the work and discipline of the school (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34; see also Doninger v. Niehoff, 642 F3d 334). Thus, the Second Circuit in Wisniewski upheld the constitutionality of a school district’s discipline of a student who used instant messaging from a home computer to transmit to other students an icon which depicted a teacher being shot. Taking into account “[t]he potentially threatening content of the icon and the extensive distribution of it, which encompassed 15 recipients,” the Second Circuit held that “it was reasonably foreseeable that the [instant messaging] icon would come to the attention of school authorities and the teacher” and that there was “no doubt” that “the icon, once made known ..., would foreseeably create a risk of substantial disruption within the school environment” (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34).
Here, I agree with respondent that it was reasonably foreseeable that the student’s Snapchat messages would come to the attention of school officials and that school officials could reasonably foresee that the messages would cause substantial disruption or material interference with the school environment (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610). As indicated above, the student sent the Snapchat messages during a time of personal instability. At the hearing, the assistant principal explained the student’s circumstances during the summer of 2018:
[The student] was really presenting in crisis. His parents had reported to the school that he was off his medication ... [and that] over the summer he had been seen on multiple occasions by security personnel at the school, sleeping in different places around the streets such as on a couch on the side of the road .... When he was at school, [the student] hadn’t made it through a full day of school since the beginning of the year .... He came in with a very erratic presentation that we hadn’t really seen from him before and we were very concerned.
The record further reflects that the student had been observed with a firearm a few days before sending the messages. The student had also recently been attacked by a group of fellow students.
Moreover, the record supports a finding that the student’s circumstances were generally known to the school community. The district received approximately 20 messages concerning the student’s messages via its Safe School Helpline. Some of these messages, like a message received on September 22, 2018 at 3:12 p.m., evinced specific awareness of the student’s circumstances. That message stated: “I’m afraid that ... [the student] is planning an act of violence at school during Monday, September 24th. I [b]elieve this will happen due to recent events and this student’s social media posts.” Another message received on September 22, 2018 at 9:04 p.m. stated, in relevant part: “I think this is a serious issue based off of [the student’s] background.” A message received on September 22, 2018 at 9:09 p.m. stated: “[the student] ... is making threats to the school online, we can’t tell how violent he wants to be he just recently was beaten up but it seems serious and better be safe than sorry ... [the student] is also rumored to have a gun in [his] possession.” Additionally, the assistant principal received messages from a coach and at least two district teachers expressing concern over the messages, and the Irondequoit Police Department received “several” such phone calls. A sergeant with the police department testified that, in her view, the student’s messages constituted “a threat that needed to be investigated” and “a potential safety concern for school on [the upcoming] Monday.”
Notably, the Second Circuit has recognized that “[s]chool administrators are in the best position to assess the potential for harm and act accordingly” (Wisniewski v. Board of Education of Weedsport Central School District, 494 F3d 34). Considering the above information, the student’s reference to the “Summer when nobody helped” could reasonably be understood as a reference to the summer of 2018, when the student experienced a period of personal crisis. Moreover, the student’s message “Keep ya cams ready for Monday. I’m going viral” could reasonably be construed as a threat of violence toward the school. Therefore, I find that it was reasonably foreseeable that the student’s Snapchat messages would cause substantial disruption or material interference with school activities.
I further find that respondent was not precluded from imposing discipline upon the student because he sent the Snapchat messages while off campus. Prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534). Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 F.Supp 220, 224, aff’d 757 F2d 496; Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534). Absent contrary evidence in the record, it is generally foreseeable that messages sent via a social media application will reach the attention of school authorities (see e.g. Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610).
As described above, the record supports a finding that numerous students, district employees, and district administrators did, in fact, receive, or learn of, the student’s Snapchat messages shortly after they were sent. Moreover, while not required to prove that the student’s conduct violated Education Law §3214 and the district’s code of conduct, the student’s Snapchat comments did, in fact, cause substantial disruption to the school environment. In addition to the responses described above, the district provided additional security at the high school for approximately one week following the student’s Snapchat messages, and the high school observed a marked decline in attendance on Monday, September 24, 2018. While petitioners allege that these responses were overzealous or unnecessary, the record supports a finding that the district’s actions were reasonable. The district received numerous communications reflecting concern over what a police sergeant deemed to be a credible threat. As the Commissioner has previously stated, “[t]ragically, school shootings are far from theoretical events; our nation is beset by an epidemic of such shootings ... and it is imperative that school officials retain the ability to protect their students and staff” (Appeal of D.B. and A.B., 57 Ed Dept Rep, Decision No. 17,395; see also D.F. ex rel. Finkle v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 FSupp2d 119, aff’d sub nom. D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 180 F.App’x 232).
Finally, while the record supports a finding of guilt as to the charge of “endangering the health, safety, and welfare of ... others,” I agree with petitioners that the record does not support a finding of guilt as to the charge of insubordination. Respondent’s code of conduct does not include a definition of the word “insubordination.” Black’s Law Dictionary defines “insubordination” as “[a]n act of disobedience to proper authority” (Black’s Law Dictionary, 11th ed., definition of “insubordination” at meaning 2). Here, respondent failed to establish how the charge of insubordination applies to the facts of this case, nor does the record reveal how the student’s Snapchat messages could be construed as an act of disobedience. Therefore, I agree with petitioners that the record does not support a finding of guilt on the insubordination charge alone. Consequently, all references to that charge in the student's record must be expunged.
I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s short-term suspension of the student between September 24, 2018 and September 28, 2018 be annulled and expunged from his record; and
IT IS ORDERED that respondent remove any reference to the charge of insubordination from the student’s record with respect to the long-term suspension that is the subject of this decision.
END OF FILE
 Merriam-Webster’s online dictionary defines “emoji” as “any of various small images, symbols, or icons used in text fields in electronic communication (as in text messages, e-mail, and social media) to express the emotional attitude of the writer, convey information succinctly, communicate a message playfully without using words, etc” (Merriam-Webster Online Dictionary, definition of “emoji,” available at https://www.merriam-webster.com/dictionary/emoji [last accessed Apr. 16, 2020]).
 Although the hearing testimony of the two witnesses is properly part of the hearing record, petitioners may not supplement this testimony with the assertions in the newly created affidavits, which were not subject to cross-examination (Education Law §3214[c]; see Appeal of D.B. and A.B., 57 Ed Dept Rep, Decision No. 17,395).
 In this respect, I note that petitioners do not request a new hearing due to these evidentiary rulings.
 Although respondent complains that petitioners did not raise this claim below, petitioners’ written appeal to respondent explicitly challenged the sufficiency of the short-term suspension notice and requested expungement “because of improper notice.”
 Notably, petitioner B.C. concedes in his affidavit submitted with the petition that the student “posted these Snapchats,” but he asserts that “[t]he words in these Snapchats were taken directly from one of [the student’s] rap songs.”
 The below information is presented to explain the foreseeability that the student’s Snapchat messages would come to the attention of school officials and that the messages would cause substantial disruption or material interference with the school environment. I do not opine as to the student’s subjective intent in making the Snapchat messages, which is not relevant under the circumstances of this appeal (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515).
 Although the district’s executive director testified that the district received “18 or 19” such reports, the record contains 20 unique reports. I note that, during the hearing, petitioner B.C. inquired as to whether each report could have been submitted by the same person. The executive director of operations admitted that this was “[t]heoretically” possible. While possible, I find that the evidence in the record does not support such a theory. As indicated herein, the Irondequoit Police Department and the assistant principal received multiple communications from different sources regarding the student’s Snapchat messages. Thus, the record does not support petitioners’ theory that the “same person” may have been responsible for the numerous Safe School Helpline reports.