Decision No. 18,072
Appeal of D.S., on behalf of his child, from action of the Board of Education of the Holland Patent Central School District regarding student discipline.
Decision No. 18,072
January 24, 2022
Ferrara Fiorenza, P.C., attorneys for respondent, Catherine E.M. Muskin, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Holland Patent Central School District (“respondent”) to impose discipline upon his child (“L.B.”). The appeal must be sustained.
L.B. attends respondent’s high school. On the morning of September 13, 2019, L.B. encountered some friends at a friend’s (the “distributor”) locker. The students conversed for a few minutes. At some point during the conversation, the distributor produced a bag of gummy candies. The distributor offered L.B. one of the gummies. L.B. accepted, took one in her hand, and consumed it.
Later that day, L.B. explained that, while doing schoolwork, her “heart [began] beating really fast,” her “arm [became] numb” and she “couldn’t really talk.” She reported to the nurse’s office, where a school nurse treated her. The school nurse contacted respondent’s school resource officer (“SRO”), who examined L.B. and “saw some signs ... consistent with cannabis use.” The high school principal investigated and learned, from the distributor, that the gummies were infused with tetrahydrocannabinol (“THC”).
In a letter dated September 17, 2019, the superintendent indicated that the district would convene a long-term suspension hearing on September 18, 2019. The letter contained an “Incident Description” that read:
[L.B.] took an edible that was infused with THC. [L.B.] got the edible from another student and took it in the hallway. It was reported by the student that handed it to her, that she told [L.B.] what it was before she ate it.
The hearing convened as scheduled, concluding on September 19, 2019. Upon the conclusion of the guilt phase of the hearing, the hearing officer found L.B. guilty of the charge against her.
In a decision dated September 19, 2019, the superintendent adopted the hearing officer’s findings related to guilt and imposed a 10-week suspension. The hearing officer further indicated that this could be reduced to a 6-week suspension if petitioner met certain conditions. Petitioner appealed this decision to respondent, which, in an undated determination, upheld the superintendent’s determination. This appeal ensued.
Petitioner contends, among other allegations, that the district failed to establish that L.B. knew the gummy was THC-infused “at the time of ingestion.” He seeks expungement of the “incident and all related material” from L.B.’s record.
Respondent argues that the appeal must be dismissed for failure to exhaust administrative remedies. Respondent further contends that the district introduced competent and substantial evidence of L.B.’s guilt at the hearing.
I must first address two preliminary matters. On appeal, respondent has submitted affidavits from the high school principal, assistant principal, and superintendent. 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.” Respondent had an opportunity to elicit testimony from the principal and assistant principal at the hearing—and the superintendent was free to explain his reasoning in his written decision. Therefore, I decline to consider these affidavits on appeal (see Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of D.B. and A.B., 57 id., Decision No. 17,395; Appeal of R.C., 49 id. 275, Decision No. 16,023).
Respondent also argues that petitioner failed to exhaust his administrative remedies insofar as he did not request expungement in his appeal to the board. However, L.B. was still serving her suspension at the time petitioner appealed to the board. Thus, petitioner had no reason to seek expungement at that time and is not precluded from seeking such relief in this appeal.
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 (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 ; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 38 [3d Dept 2002]; 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. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 ; 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).
Initially, the “charge” against L.B., quoted above, consisted of a narrative summary. It appears from the record that the parties understood the charge to be that L.B. consumed a gummy with prior knowledge that it was infused with THC. I admonish respondent to carefully consider the language of student disciplinary charges before charging students with misconduct (see Matter of Board of Educ. of Monticello Cent. School Dist., 91 NY2d at 139).
Further complicating my review is the fact that the hearing officer did not make any credibility determinations to resolve conflicting testimony regarding L.B.’s guilt. As described below, the hearing record includes conflicting evidence concerning L.B.’s knowledge as to the nature of the gummy. As such, it was incumbent upon the hearing officer to make factual findings, including credibility determinations, to resolve this inconsistent testimony.
However, the record does not contain a copy of any written recommendations made by the hearing officer with respect to guilt or penalty. The hearing officer’s recommendation consists of a single statement made on the record that “[i]t was reported by [the distributor] ... that she told [L.B.] what it was before she ate it.” The superintendent’s decision is similarly bereft of any reasoning.
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 id. 50, Decision No. 15,438). I admonish respondent to ensure that the trier of fact in student disciplinary proceedings judges the demeanor and character of the witnesses before him or her and makes credibility determinations as necessary (Education Law § 3214  [c] ). 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. I must therefore determine, based solely on the written record, whether there is competent and substantial evidence that L.B. engaged in the conduct as charged (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,929; Appeal of P.D., 46 id. 50, Decision No. 15,438).
The record does not support such a finding. L.B. denied knowing that the gummy was THC-infused in her interactions with school officials and at the hearing. Therefore, it was the district’s burden to introduce evidence to prove L.B.’s guilt.
The district’s case was largely based upon the distributor’s testimony that she described the gummy to L.B. as an “infused gummy.” I do not find this testimony probative for two reasons. First, the witnesses at the hearing provided inconsistent testimony as to how the gummy was described to L.B., ranging from “infused gummies” (the distributor) to “edible” (a classmate) to “gummy” (L.B.). Without any determination as to which (if any) of these witnesses were credible, none of these responses can be afforded more probative value than the others.
Second, other testimony by the distributor reveals that she lacked knowledge of L.B.’s familiarity with THC-infused gummies. While the distributor “assumed” that L.B. knew the gummy was THC-infused, she conceded that “[t]here could be a chance that [L.B.] did not know what it was.” This lack of knowledge is corroborated by the distributor’s testimony that she did not know whether L.B. had previously consumed a THC-infused gummy and did not inform L.B. or the classmate that she would be bringing THC-infused gummies to school.
Respondent additionally argues that L.B. knew or must have known that the gummy was infused with THC because it had a unique smell and taste. The evidence in the record regarding the smell of THC-infused gummies was inconsistent. While both the distributor and classmate testified that these gummies have a unique smell, the classmate testified that: (1) he could not smell marijuana from where he was standing—which, like L.B., was in close proximity to the distributor; (2) L.B. did not smell the gummy before consuming it; and (3) the smell of THC-infused gummies is “pretty concealed.” Together, this evidence fails to establish that the gummy was so fragrant that L.B. knew, or should have known, that it was infused with THC.
Further, although the record establishes that THC-infused gummies have a unique taste, this does not prove that L.B. knew of the gummy’s nature before placing it in her mouth. And even assuming that L.B. discovered that the gummy had an unusual taste, respondent has not adduced sufficient evidence that the taste is so repugnant or unusual that one would be compelled to spit it out. The only description of the taste was offered by the classmate, who testified that: “It had a little bit of a minty taste ... It’s not one that you want an after taste on. It kind of stays in your mouth a little bit ....”
Finally, respondent cites to the testimony of the principal, who, while viewing a video recording of the students during the transaction, described the students as “looking around kind of suspiciously ....” I have reviewed the video recording and conclude that no probative conclusions may be derived from it. This video is approximately two minutes long and depicts four students, including L.B., casually chatting at the distributor’s locker. While the students occasionally look down the hallways, L.B. did not do so with sufficient frequency to support an inference that she knew she was engaged in wrongdoing.
Therefore, I find that the district did not establish L.B.’s guilt through competent and substantial evidence. Both the short-term and long-term suspensions were predicated upon a single charge which, as explained above, was not supported by the evidence in the record. Therefore, both L.B.’s short-term and long-term suspensions must be expunged (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438).
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent annul and expunge the short- and long-term suspensions described herein from L.B.’s record.
END OF FILE
 The record does not contain written findings or recommendations as to penalty by the hearing officer. I admonish respondent to ensure that any hearing officers who preside over long-term suspension hearings make specific penalty recommendations (see Education Law § 3214  [c]; Appeal of G.B. and B.B., 52 Ed Dept Rep, Decision No. 16,383).
 Petitioner also indicates his desire to file a complaint under the Dignity for All Students Act (“DASA”). It appears from respondent’s papers that it has initiated such an investigation. Nevertheless, petitioner remains free to request that respondent investigate any claims of bullying or harassment directed toward L.B.
 While the record does not reveal when petitioner appealed to the board, respondent acknowledged receipt of the appeal on October 8, 2019.
 For example, at the hearing the principal stated: “I mean, again, she did admit to taking it, it’s whether or not she knew about it ahead of time.”
 The classmate also testified to this effect.
 While respondent does not defend its determination on this basis, the hearing officer allowed witnesses at the hearing to discuss prior “drug use” by L.B. In determining whether to admit evidence of a student’s prior bad acts, a trier of fact in student disciplinary proceedings must weigh the “probative value” of such evidence against its “potential for undue prejudice” (see Motta v Eldred Cent. Sch. Dist., 172 AD3d 1575, 1579 [3d Dept 2019]).