Decision No. 17,929
Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the Honeoye Falls-Lima Central School District regarding student discipline.
Decision No. 17,929
(October 7, 2020)
Law Office of James Cole, attorneys for petitioner, James Cole, Esq., of counsel
Ferrara Fiorenza PC, attorneys for respondent, Catherine E. M. Muskin, Esq., of counsel
ROSA., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the Honeoye Falls-Lima Central School District (“respondent”) to impose discipline on her daughter (“the student”). The appeal must be sustained to the extent indicated.
At all times relevant to this appeal, the student attended respondent’s high school. On or about October 1, 2019, the high school principal (“principal”) learned that an inscription had been written inside a stall in the school’s unisex bathroom. The inscription stated: “iM gonna BOMB This school. just you wait.” According to the record, the inscription was discovered in the larger of the unisex bathroom’s two stalls (the “large stall”).
The district thereafter placed the high school in lockdown and began an investigation of the inscription. After reviewing security footage of the hallway outside the bathroom, conducting interviews, and reviewing handwriting samples, the district concluded that the student had authored the inscription.
By letter dated October 4, 2019, the principal advised petitioner that the student would be suspended for five school days from October 7 to October 15, 2019 for violating respondent’s code of conduct. Specifically, the letter charged the student with “[e]ngaging in conduct that [was] disorderly, including any willful act which disrupt[ed] the normal operation of the school community.”
By letter dated October 8, 2019, respondent’s superintendent advised petitioner that a long-term suspension hearing would be convened on October 16, 2019 to determine whether an additional period of suspension was warranted. The superintendent’s letter charged the student with engaging in “violent conduct” and conduct that “endangered the health, welfare, safety and/or morals of others.”
The long-term suspension hearing, presided over by a hearing officer, convened as scheduled. At the hearing, the student denied the charges against her. The district submitted testimonial evidence from three students who had also been in the unisex bathroom on the day of the incident. One such student (“student A”) testified that she used the unisex bathroom at approximately 8:00 a.m. on the morning of the incident. Student A testified that, at that time, there was no inscription written in the large stall.
Another student (“student B”) testified that he and his friend (“student C”) entered the unisex bathroom at approximately 8:30 a.m. on the day of the incident, at which time both stalls were occupied. Student B recalled that, while he and student C were in the bathroom, the occupants of the stalls exited the stalls and left the bathroom. Although student B did not know who these individuals were, he indicated that the person who exited the large stall was a girl “wearing pants” and that the person who exited the small stall was a girl “wearing shorts.” Thereafter, according to student B, he dropped his phone while exiting the bathroom, “picked it up,” and – in the process – observed the inscription written on the interior wall of the large stall. Student B indicated that, although he “didn’t see ... with [his] own eyes who wrote” the inscription in the large stall, “it was in there when [the girl wearing pants] walked out” and “wasn’t there before.” Notably, student B denied using either stall while in the bathroom with student C. In addition, although student B testified that he had used the unisex bathroom earlier that morning, he stated that he “used the smaller stall” at that time and “didn’t look” into the large stall. Student B testified that, upon leaving the bathroom, he “immediately” reported the inscription to a hall monitor who was “right outside the bathroom,” near a “set of lockers.” According to student B, student C also saw the inscription after he pointed it out to her and was with him when he spoke to the hall monitor.
Student C testified that she and student B entered the unisex bathroom “around” 9 a.m. on the morning of the incident. Student C indicated that, at that time, both stalls were occupied. Shortly thereafter, according to student C, she witnessed the student exit the large stall and another girl exit the small stall then leave the bathroom. Student C testified that she did not see the inscription written on the wall of the large stall or otherwise hear about the incident until the school was placed in lockdown. Student C additionally denied seeing student B report the incident or approach a hall monitor upon leaving the bathroom.
A school guidance counselor (the “counselor”) testified that he reviewed approximately 10 student writing samples as part of the district’s initial investigation of the incident, although he acknowledged that he had “[z]ero” experience with handwriting analysis. The counselor indicated that he reviewed the writing samples for “similarities” with the inscription written in the bathroom and eliminated students whose writing samples were not “as neat as the [inscription].” The counselor denied that he conducted any comparison of specific letters as written in the inscription versus the writing samples. Although the counselor indicated that he reviewed a writing sample from the student, he did not identify any other students whose writing samples he analyzed. He indicated that he found the student’s handwriting to be most similar to the inscription based on the “neatness” of both and the use of a lowercase, rather than an uppercase, “i” in both.
A teacher also testified that she assisted with reviewing student writing samples, although she did not have any prior experience with handwriting analysis. Specifically, the teacher stated that she reviewed writing samples from the student, student C, and an unidentified third student. The teacher indicated that, based on the “tilt” of the writing and the use of lowercase letters, she believed the inscription was most similar to the student’s writing.
The student testified on her own behalf and stated that she entered the unisex bathroom with her friend at approximately 8:30 a.m. on the day of the incident. The student stated that she was “pretty sure” that, at that time, the door to the large stall was “closed.” She indicated that she did not recall seeing anyone else enter the bathroom. The student testified that, after her friend used the small stall and washed her hands, she and her friend left the bathroom.
The student’s friend testified on the student’s behalf and stated that, on the day of the incident, she and the student entered the unisex bathroom together sometime in the morning. The student’s friend recalled that the large stall was occupied when she and the student entered the bathroom. The friend testified that she used the small stall before leaving the bathroom with the student, at which time the large stall remained occupied. The friend denied seeing anyone else in the bathroom during the time that she and the student were there and indicated that she was not aware of anyone else entering the bathroom while she was in the small stall.
During the hearing, the district submitted surveillance video of the hallway outside the unisex bathroom. The video revealed that student A entered the bathroom at approximately 8:34 a.m. and exited the bathroom at 8:37 a.m. Shortly thereafter, also at 8:37 a.m., the student – who was wearing pants – and her friend – who was wearing shorts – entered the bathroom. Student B and student C then entered the bathroom at 8:39 a.m., before the student and her friend exited the bathroom approximately 30 seconds later. Finally, student B and student C exited the bathroom at 8:40 a.m. According to the video, student B walked down the hallway toward the district office upon exiting the bathroom. The video does not depict student B approaching any staff member, nor does it depict a hall monitor stationed outside the bathroom.
Following the presentation of evidence, the hearing officer concluded on the record that the district had proven the charges against the student by competent and substantial evidence. Thereafter, a manifestation team determined that the student’s conduct was not a manifestation of her disability. The hearing officer then admitted evidence concerning penalty and reserved judgment as to what penalty might be appropriate under the circumstances.
By letter dated October 17, 2019, the superintendent notified petitioner that, based on the record presented at the hearing and the hearing officer’s recommendations, he found the student guilty of the charges against her. The superintendent further indicated that the student would be suspended until January 26, 2020.
By letter dated November 16, 2019, petitioner appealed the superintendent’s decision to respondent. In a letter dated December 20, 2019, respondent’s president advised petitioner that respondent had voted to expunge the student’s short-term suspension but uphold the long-term suspension. This appeal ensued.
Petitioner argues that the testimony of respondent’s witnesses at the hearing was inconsistent and, thus, insufficient to establish the student’s guilt by competent and substantial evidence. Petitioner also argues that respondent failed to consider exculpatory evidence submitted on appeal. For relief, petitioner requests expungement of the long-term suspension from the student’s record.
Respondent asserts that the long-term suspension was lawful, and that petitioner has failed to carry her burden of proof. Respondent further asserts that petitioner improperly seeks to submit evidence that she failed to submit at the long-term suspension hearing.
I must first address two procedural matters. Respondent objects to petitioner’s submission of additional evidence on appeal that was not introduced into evidence during the long-term suspension hearing. Specifically, petitioner submits two documents, an alleged polygraph examination report and a handwriting analysis report. Parties 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.” Because the two documents petitioner presently seeks to submit were not submitted at the hearing and, thus, not properly part of the record before respondent on appeal, 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).
In addition, to the extent that petitioner claims that respondent failed to provide appropriate alternative instruction to the student, this claim is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Because the student has completed serving the suspension for which she should have been provided alternative instruction, there is no meaningful relief that petitioner can now receive with respect to her claim that the district did not provide such instruction (Appeal of A.V., 58 Ed Dept Rep, Decision No. 17,505; Appeal of F.A., 57 id., Decision No. 17,383). Accordingly, the appeal must be dismissed as moot to this extent.
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). The Court of Appeals has described the substantial evidence standard as “proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably - probatively and logically” (300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176, 182 ; see Appeal of J.J., 46 Ed Dept Rep 270, Decision No. 15,505; Appeal of Wallen, 33 id. 313, Decision No. 13,060).
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, respondent has not proven the student’s guilt by competent and substantial evidence. The testimonial and video evidence presented at the hearing established that five students – including the student who is the subject of this appeal – entered and exited the bathroom between approximately 8:30 and 8:40 a.m. Although each student denied making the inscription, each had access to the bathroom during the relevant timeframe and could have authored the inscription. As such, it was incumbent upon the hearing officer to make factual findings, including credibility determinations, to resolve the inconsistent testimony proffered by these five students.
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). Here, however, the record does not contain a copy of any written recommendations made by the hearing officer with respect to guilt or penalty. Instead, the hearing officer’s determination appears to consist of a single statement made on the record that “the district ha[d] met its burden of proving with competent and substantial evidence that it was in fact [the student] who wrote the message on the wall.”
While a hearing officer may generally make a finding of guilt on the record (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,384), the hearing officer’s summary finding of guilt here, bereft of any reasoning or findings of fact, was inappropriate (Education Law §3214[c]; see Appeal of J.D. and J.D., 58 Ed Dept Rep, Decision No. 17,551; Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438). Without any reasoning or factual findings, it is unclear how, if at all, the hearing officer resolved the witnesses’ conflicting testimony. Accordingly, I admonish respondent to ensure that the trier of fact in a student disciplinary hearing renders factual findings consistent with his or her duty under Education Law §3214(3)(c)(1), judges the demeanor and character of the witnesses before him or her, and makes credibility determinations as necessary. Because the hearing officer did not do so in this instance, I have no basis upon which to defer to the hearing officer’s determination or assessment of the witnesses’ credibility and must instead determine whether there is sufficient and competent evidence that the student engaged in the conduct as charged (Appeal of P.D., 46 Ed Dept Rep 50, Decision No. 15,438).
Given the hearing officer’s ultimate recommendation, it appears likely that he credited the testimony of student A that the inscription was not in the large stall when she was in the bathroom, as well as the testimony of student B that he saw the inscription after a girl wearing pants – who, based on the video evidence, would appear to be the student – exited the large stall. However, I cannot accept student B’s testimony on this point as the record contains clear and convincing evidence that student B’s testimony was inconsistent with the other evidence presented at the hearing. As an initial matter, although student B testified that the inscription “was in [the large stall] when [the girl wearing pants] walked out” and “wasn’t there before,” his testimony failed to establish how he knew whether the inscription had been there previously. Indeed, student B specifically denied that he had used or even looked into the large stall on the morning of the incident, prior to when he allegedly saw the inscription on the wall.
Student B also testified that, upon leaving the bathroom, he “immediately” reported the inscription to a hall monitor who was “standing right outside the bathroom” near a “set of lockers.” However, the security video - which portrays the hallway outside of the bathroom, including the lockers across the hall - did not portray any individual standing outside of the bathroom, nor did it depict student B stopping to talk to any staff member in the hallway. Furthermore, student B testified that student C also saw the inscription when they were in the bathroom together; however, student C testified that she did not see the inscription. Indeed, student C indicated that student B did not apprise her of the inscription at all and that she was unaware of the incident until the school was placed in lockdown. I find that these inconsistencies seriously undermine student B’s credibility. As such, his testimony is entitled to little probative value.
Having discredited student B’s testimony, the remaining evidence in the record fails to establish the student’s guilt through competent and substantial evidence. As indicated above, student C testified that she saw the student leave the large stall but did not observe the inscription written on the wall at that time. The student testified, consistent with the testimony of her friend, that: (1) she accompanied her friend to the bathroom; (2) her friend used the small bathroom stall while the student waited in the common area; (3) she and her friend left the bathroom thereafter; and (4) the large stall was occupied during that time.
While the testimony of the student and her friend is inconsistent with the testimony of student C as to whether the student used the large stall, I do not find this discrepancy to be significant as there is no credible evidence that the inscription was contained in the large stall at that time. Even assuming that the student used the large stall, as student C testified, there is no evidence in the record suggesting that the student was more likely than the other students who accessed the bathroom on October 1, 2019 to have made the inscription. Likewise, although the testimony of the student and the student’s friend differed from the video evidence – insofar as the student and her friend did not recall anyone else entering the bathroom, and the surveillance video revealed that student B and student C entered the bathroom while the student and her friend were inside – I do not find that this inconsistency alone is sufficient to establish that the student was more likely to have authorized the inscription than any of the other four students who were also in the bathroom during the relevant timeframe.
Respondent’s remaining evidence consists of lay handwriting analysis performed by district employees. Generally, under New York law, a trier of fact may compare disputed writings to determine whether they were written by the same person (see e.g. Matter of Thomas v. Coughlin, 145 AD2d 695, 696 [3d Dept 1988]; see also CPLR §4536; People v. Hunter, 34 NY2d 432, 435 ). It is also well-established that a trier of fact’s handwriting comparison may constitute substantial evidence to support an administrative determination so long as the trier of fact identifies “sufficient similarities between the two [writings] to comprise substantial evidence that they were written by the same person” (Matter of Smith v. Coughlin, 198 AD2d 726, 726 [3d Dept 1993]; see Matter of Brown v. Fischer, 91 AD3d 1336, 1337 [4th Dept 2012]; Matter of Johnson v. Coombe, 271 AD2d 780, 780-781 [3d Dept 2000]). The Commissioner has recognized these principles within the context of student disciplinary hearings (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).
Here, there is no evidence that the hearing officer compared the inscription with the handwriting of the student or any other students. Instead, two district witnesses testified that they conducted such an analysis prior to the hearing – despite having no expertise or prior experience with handwriting analysis – and found the student’s handwriting to be most similar to the inscription, based on the samples they reviewed. Notably, the district failed to submit into evidence any of the writing samples that these witnesses compared to the inscription. Instead, the record contains only examples of the student’s handwriting, which were introduced by petitioner and do not appear to be the same samples that the witnesses reviewed.
Nor does the record reveal that the district’s witnesses reviewed handwriting samples from all of the students who were in the bathroom during the relevant timeframe. Although the teacher indicated that she reviewed handwriting samples from three students, including the student and student C, she did not identify the third student and specifically denied that she reviewed a handwriting sample from student B. Likewise, the counselor testified that he reviewed writing samples from 10 students, but he did not identify who any of these students were other than the student who is the subject of this appeal. Because there is no evidence in the record to establish that these witnesses reviewed handwriting samples from the other three students who were present in the bathroom during the relevant timeframe – specifically, student A, student B, and the student’s friend – I cannot find that the district sufficiently ruled out the possibility that another student may have authored the inscription (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).
Furthermore, although the counselor and the teacher testified that they found the student’s handwriting to be similar to the inscription, I cannot find that this evidence constitutes competent and substantial evidence of the student’s guilt. First, the lay opinions of these witnesses are not entitled to significant weight since, as the witnesses themselves admitted, they had no experience analyzing handwriting. Second, while the witnesses identified specific similarities between the samples of the student’s handwriting and the inscription, such as the neatness or tilt of the script and the use of lowercase letters, they admitted that they did not compare the style in which specific letters were written. Had they done so, they may have discovered, for example, that the lowercase “a” characters in the inscription do not resemble any of the lowercase “a” characters contained in the samples of the student’s handwriting. This is particularly significant as the student’s name contains an “a,” and the student presumably writes a lowercase “a” frequently, whenever signing her name (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).
In sum, while respondent adduced sufficient evidence to raise some suspicion as to whether the student committed the charged conduct, it failed to produce competent and substantial evidence of her guilt. The only testimony that directly implicated the student was offered by student B, whose testimony was inconsistent with the other evidence in the record and, thus, is entitled to minimal probative value. Indeed, the record contains as much, if not more, evidence suggesting that student B could have authored the inscription, yet there is no evidence that respondent considered him to be a suspect or compared his handwriting with the inscription. Therefore, on this record, I cannot find that the district sufficiently ruled out the possibility that another student, such as student B, may have authored the inscription (Appeal of a Student with a Disability; 57 Ed Dept Rep, Decision No. 17,258; Appeal of Gorzka, 35 id. 20, Decision No. 13,449). As such, the findings of guilt on the two charges against the student must be annulled and the student’s suspension must be expunged from her record.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that all record of the long-term suspension of the student described in this decision be expunged from her record.
END OF FILE
 Notably, the teacher testified that she did not review a handwriting sample from student B and did not know why an example of student B’s handwriting was not produced for her review.
 The record further reflects that petitioner sought to introduce these materials to respondent after the conclusion of the hearing and that respondent declined to consider them.
 Although the principal submits an affidavit in which he states that he did not find the student credible in evaluating whether to impose a short-term suspension, this is not relevant to the student’s testimony during the long-term suspension hearing. The principal was not the trier of fact at the hearing and, indeed, was himself a witness.
 While the hearing officer may have implicitly credited the testimony of the district’s witnesses, the record contains no evidence of his reasoning in this respect.