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Decision No. 17,847

Appeal of K.M., on behalf of her son D.M., from action of Jonathan Wolf, as Principal, and the Board of Education of the Orchard Park Central School District regarding student discipline.

Decision No. 17,847

(June 10, 2020)

Greco Trapp, PLLC, attorneys for petitioner, Chris G. Trapp, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondent, Lindsay A. Menasco, Esq., of counsel

Tahoe., Interim Commissioner.--Petitioner appeals from action of Jonathan Wolf, as principal of Orchard Park High School (“respondent Wolf”), and the Board of Education of the Orchard Park Central School District (“respondent board”) (collectively, “respondents”) to impose discipline upon her son (the “student”).  The appeal must be dismissed.

Petitioner’s son is a senior at respondent’s Orchard Park High School.  He was also, at the time of the events giving rise to this appeal, a member of the boys’ varsity soccer team.  According to respondents, on or about September 5, 2019, members of the district’s girls’ varsity soccer team complained to their coach that several members of the boys’ varsity soccer team “made postings on social media referencing the word ‘scissors’ or [featured] scissors imagery.”  Respondents explain that these actions were intended to “suggest [] that members of the girls[’] varsity soccer team were lesbians and/or [constituted] a reference [] [to] the[ir] sexual orientation ....”  Respondent Wolf explains in an affidavit submitted with this appeal that members of the girls’ team “confronted members of the boys[’] team ... to try to resolve the matter,” but that “a new posting was observed on September 5, 2019 ....”  Respondent Wolf further indicates that he received a complaint from a parent of a child on the girls’ varsity soccer team.

On September 5, 2019, respondent Wolf directed the “House 3 Principal” (the “principal”) of Orchard Park High School, to investigate the alleged harassment of the girls’ soccer team.  On September 10 and 11, the principal interviewed 10 members of the girls’ varsity soccer team and a male student who indicated that he was friends with members of both teams.  “Several” of the girls interviewed indicated that they found the scissors imagery and social media postings “inappropriate and personally upsetting.”  The interviewees identified specific instances of such conduct, including a photograph taken on September 3, 2019 (the “photograph”) and a social media posting uploaded on September 5, 2019.  Multiple interviewees indicated “that they had reached out to members of the boys[’] soccer team to try to stop the inappropriate conduct, and that some members of the boys[’] team had apologized with regard to the conduct of their teammates.”

On September 12, 2019, the principal interviewed five members of the boys’ varsity soccer team, including the student who is the subject of this appeal.  The interviewees generally explained that, during the summer of 2019, the members engaged in a “running joke” that “one or more members of the girls varsity soccer team ha[d] a same-sex partner preference, and that the ‘scissors’ symbol [was] an expression of that joke ....”  The student admitted that he made a “scissors” gesture when posing for the photograph and that it was captured using his phone.  The student denied that he uploaded the picture to a social media application and “said that he did not know how the photograph ... made its way from his phone to social media.”  The principal asked the student “to write down what he had described” to him, and the student subsequently generated a written statement dated September 12, 2019.  Under a pre-printed heading entitled “Description of Incident,” the student wrote:

Made a scissor hand in a picture.  In one of the group photos.  And saw the picture posted online on others[’] [I]nstagram accounts.  And knew the girls were mad a day or two after.  I never posted the photos online. 

On September 13, 2019, the principal met with the student for a second interview.  The principal told the student that he had concluded that the “scissors” hand gesture was intended as a reference to the sexual orientation of one or more members of the girls’ varsity soccer team.  The principal informed the student that he had shared the results of his investigation with respondent Wolf and intended to recommend a short-term suspension for the student’s conduct. 

Also on September 13, 2019, the principal contacted the student’s father and informed him that respondent Wolf proposed a three-day suspension.  The student’s father requested a meeting with the principal to discuss the matter, which occurred later that day.  The student’s father, petitioner, the student, and the principal attended.  During this meeting, the student and his parents asserted that the student was making a “peace” sign in the photograph; the student’s father also suggested that the student’s hand gesture may have been a reference to a “scissor kick,” a soccer maneuver.  The principal then showed petitioner and the student’s father a copy of the student’s written statement.  According to respondents, petitioner “appeared to be upset” upon reading the statement and told the student: “You wrote it, you signed it[;] that means it’s true,” or words to that effect. 

At the conclusion of his investigation, the principal determined that the student had improperly or inappropriately made the “scissors” gesture while posing for a group picture on district grounds on September 3, 2019.  The principal further concluded that any suggestion by the student or his parents that the student intended to make a “peace” sign or make reference to a “scissor kick” was not credible.  The principal reported his investigation findings to respondent Wolf.

In a letter to petitioner dated September 13, 2019 (the “written notice”), respondent Wolf proposed to suspend the student for three days beginning on September 17, 2019.  In the written notice, respondent Wolf advised that the student had engaged in “disruptive, insubordinate, disorderly, and volatile” conduct that violated respondent board’s code of conduct.  Specifically, the student was alleged to have “appear[ed] in an offensive photo making a scissors gesture that insinuate[d] the sexual orientation of members of the girls[’] soccer team.”  The written notice advised petitioner that she could request an informal conference with respondent Wolf to discuss the matter. 

Upon receiving the written notice, petitioner notified respondent Wolf that she would be unable to meet for the informal conference until September 17, 2019.  Respondent Wolf indicates in an affidavit that the student’s suspension, though scheduled to begin on September 17, 2019, was “contingent upon the outcome of the informal conference.”

The informal conference took place on September 17, 2019.  After considering the information and arguments presented by petitioner and the student’s father, respondent Wolf imposed, as originally proposed, a three-day suspension to be served on September 18, 19, and 20, 2019.  The student served this suspension.

Petitioner appealed the short-term suspension to respondent board on September 25, 2019.  Respondent board affirmed the imposition of the three-day suspension in a letter dated October 3, 2019, and this appeal ensued. 

Petitioner contends that the short-term suspension must be expunged from the student’s record because:  (1) The principal “directed [him] to use certain words” in his written statement; (2) respondents lacked authority to punish the student for engaging in the hand gesture, which was a “sideways peace sign”; (3) the student’s conduct caused no disruption to the school; (4) the penalty imposed was excessive; (5) respondents engaged in “disparate treatment” of the student because other students who made such a symbol received “no discipline”; and (6) respondents imposed discipline against the student as retaliation for a Dignity for All Students (“DASA”) complaint filed by the student’s father against a district employee.  Petitioner seeks expungement of the suspension from the student’s record.

Respondents deny petitioner’s contentions and argue that the determination to suspend the student was supported by competent and substantial evidence.  Respondents further assert that the district acted appropriately and issued a fair and proportionate consequence in conformity with its code of conduct and in light of the circumstances. 

First, I must address two preliminary matters.  While the petition contains allegations of alleged bullying and harassment against the student by a district employee, petitioner seeks no relief in connection with these allegations.  The record reflects that these allegations were the subject of a DASA investigation and culminated in a determination that the allegations were “unfounded.”  Accordingly, these allegations will not be addressed herein, except to the extent petitioner alleges that the district imposed discipline as retaliation for such complaint.

Additionally, petitioner submitted a verified reply as well as a reply affidavit from the student.  Respondents then requested permission to submit a sur-reply affidavit in response.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions of the reply or the student’s affidavit containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.  Consequently, I need not accept respondents’ sur-reply into the record, which seeks to respond to the newly raised material in the reply and accompanying affidavit.

Turning to the merits, 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). 

On this record, petitioner has failed to meet her burden of demonstrating a clear legal right to the relief requested.  The record reflects that, during the student’s two initial interviews with the principal, the student admitted to posing for a photograph with a “scissors” gesture and prepared a written statement to that effect.  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).

Petitioner’s claim that the student was “coerced” into composing the language of his written admission is not supported by the evidence in the record.  The principal submits a sworn affidavit in which he avers that the student composed the written statement of his own volition.   Therefore, the record supports a finding that the student was not coerced into making any admission of the charged conduct.

Notwithstanding the student’s admission, petitioner argues that the student could not be disciplined for such hand gesture because he merely sought to display an innocuous “peace out” sign.  Petitioner and the student’s father made similar arguments to district officials that the principal did not find to be credible.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909).  Petitioner has not produced clear and convincing evidence that respondents’ determination was inconsistent with the facts; indeed, the evidence in the record supports respondents’ credibility determination.  The student met with the principal twice before he and his parents advanced the theory that his hand symbol represented a “peace” and/or a “scissor kick” sign.  Moreover, these later explanations are not consistent with the testimony of multiple athletes concerning interactions between the boys’ and girls’ varsity soccer team during Fall 2019.  Therefore, respondents acted within their discretion to reject the student’s alternative explanation for his hand gesture as not credible.

Petitioner additionally argues that respondents lacked authority to discipline the student for expressive conduct that did not cause any disruption to the school.  Initially, I note that 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).  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 while actual disruption is relevant, it is not required (Cuff v. Valley Central School District, 677 F3d 109).

As described herein, the student posed for a group photograph and displayed a gesture that he knew members of the girls’ soccer team found to be offensive.  I find it reasonably foreseeable that this act - one episode in the boys’ soccer team’s “running joke” - would cause substantial disruption or material interference to the school environment and, in fact, did cause such disruption or interference when members of the girls’ soccer team and a parent complained of such conduct.  But even assuming that there was no actual disruption, as petitioner contends, this would not bar respondents from imposing discipline upon the student.[1]

Petitioner’s argument that his conduct did not violate respondent board’s code of conduct is also without merit.  Consistent with Education Law §3214, respondent board’s code of conduct prohibits students from “[e]ngag[ing] in any conduct that endangers the safety, morals, health or welfare of others.”  One such example is engaging in harassment or bullying of other students.  The written suspension notice recited these provisions and described the conduct in which the student engaged.  Beyond asserting that the student’s conduct was not “vulgar” or “obscene” – words which do not appear in the charge against the student or anywhere else in the written notice – petitioner has not explained why his conduct was not prohibited by the broad prohibition contained in Education Law §3214 (see Appeal of S.K., 59 Ed Dept Rep, Decision No. 17,824).

Additionally, petitioner’s focus on the hand gesture alone improperly ignores the context in which it was made.  As indicated above, the record establishes that the girls’ soccer team had been the subject of “scissors” related comments and social media postings; that girls on the team found such references “inappropriate and personally upsetting”; that they conveyed these feelings to the boys’ soccer team; and that, thereafter, the student posed for a picture and displayed, by his own admission, a “scissors” gesture.  The principal further avers that he explained to the student during the March 12 interview  “that the boys[’] team members that [he] had previously interviewed ... confirmed that the ‘scissor’ gestures ... were ... intended as a reference to the sexual orientation of members of the girls[’] varsity soccer team.”  According to the principal, the student “did not in any way dispute that context.”  Thus, the record in this case establishes that the “scissors” gesture was perceived of as offensive by members of the girls’ varsity team and that this displeasure was known by members of the boys’ team.  As such, it is irrelevant whether the hand gesture could be susceptible to differing interpretations by an outside observer.

Petitioner additionally argues that the imposition of a three-day suspension for the alleged conduct is 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).  I cannot find a three-day suspension for the student’s conduct to be excessive under the circumstances (see Appeal of N.C., 57 Ed Dept Rep, Decision No. 17,417 [approximately three-month suspension upheld for “sexual comments and a racial slur”]).  Moreover, although petitioner asserts that students who engaged in similar conduct received “no discipline,” respondents aver that the student received the same punishment given to other students who were found to have committed similar acts against the girls’ soccer team.  Petitioner has produced no evidence to contradict this assertion.

Finally, petitioner argues that respondents suspended the student as retaliation for a DASA complaint that the student’s father filed against a district employee (see Education Law §13[1][f]).  Respondents deny this allegation, and the principal avers that he was unaware of this DASA complaint until September 16, 2019 – several days after he interviewed members of the girls’ and boys’ varsity soccer teams.  Petitioner does not provide any evidence of causation connecting her filing of the DASA complaint and the disciplinary event that is the subject of this appeal.  As discussed above, the record supports a finding that the student engaged in the charged conduct, and that the discipline imposed was not excessive.  Therefore, petitioner has not met her burden of proving that respondents engaged in unlawful retaliation.

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




[1] Similarly, the fact that the student did not take or upload the picture is irrelevant because the student was not charged with its dissemination.