Decision No. 18,224
Appeal of B.K., on behalf of her child, from action of the Board of Education of the Arlington Central School District regarding student discipline.
Decision No. 18,224
(January 10, 2023)
Christopher P. Ragucci, Esq., attorney for petitioner
Shaw, Perelson, May & Lambert, attorneys for respondent, Michael K. Lambert, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Arlington Central School District (“respondent”) to impose discipline upon her child (the “student”). The appeal must be dismissed.
During the 2021-2022 school year, the student attended eighth grade at respondent’s middle school. On or about October 18, 2021, a student (“the classmate”) and her father reported to school personnel that the classmate had been subjected to “repeated, unwelcome acts of sexual harassment … by several male students” on the school bus. The middle school principal thereafter investigated the claims. In connection therewith, she viewed security camera video footage from the bus and interviewed several students, including the student who is the subject of this appeal. Three male students “acknowledge[d]” that the student “had engaged in sexual acts with another male student in close proximity” to the classmate.
In an undated letter to petitioner, the principal proposed a suspension of the student for five days based on his involvement in the school bus incident. On October 22, 2021, the principal held an informal conference with petitioner to discuss the allegations against the student. At the conference, the principal showed petitioner redacted photographs extracted from the video footage.
In a letter dated October 26, 2021, the principal suspended the student for five days for, among other violations, endangering the safety of the classmate and engaging in disorderly conduct. The principal’s letter asserted that the student “was involved in the sexual harassment of a female student on the school bus”; that he “engaged in a simulated sex act with a male student on the school bus”; and that he and the male student inappropriately kissed and touched each other.
Petitioner appealed the principal’s determination to respondent’s superintendent. Following his denial thereof, this appeal ensued.
Petitioner admits that the student engaged in simulated sex acts with another male student on the bus, but asserts that these acts were consensual, not witnessed by the classmate, and did not violate respondent’s code of conduct. She denies, however, that the student harassed the classmate, asserting that the student tried to intervene on the classmate’s behalf. Petitioner also claims that respondent improperly denied her the opportunity to view the security camera video footage. Finally, petitioner claims that the student’s punishment was excessive and “could be interpreted as retaliation against [petitioner’s family]” because the family and district had recently disagreed about a matter unrelated to the present dispute. Petitioner seeks expungement of the student’s suspension—or, “[a]t the very least,” expungement of “any reference” to sexual harassment—from his record.
Respondent contends that it established the student’s guilt through competent and substantial evidence. Respondent additionally argues that the student’s suspension was proportionate to his misconduct.
I must first address two procedural matters. Petitioner has submitted a reply in response to respondent’s answer and the principal’s affidavit. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
Petitioner also submitted a memorandum of law, in which she asserts, for the first time, that respondent did not provide petitioner an opportunity to question complaining witnesses at the informal conference. A memorandum of law should consist of arguments of law (8 NYCRR 276.4). It may not be used to add belated assertions or exhibits not included in the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Moreover, there is no evidence that petitioner raised this contention at the local level. Where state law provides for an initial district-level decision, arguments may not be raised for the first time in an appeal to the Commissioner pursuant to Education Law § 310 (see e.g. Appeal of T.F., 60 Ed Dept Rep, Decision No. 17,966; Appeal of A.C., 59 id., Decision No. 17,799; Appeal of N.H., 59 id., Decision No. 17,732). Accordingly, this contention is not properly before me.
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, 39 [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).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
I find that respondent adduced competent and substantial evidence of the student’s misconduct. Petitioner admits that the student engaged in “consensual play” in the form of simulated sex acts, which she characterizes as “undoubtedly ill advised.” 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, I find that respondent possessed competent and substantial evidence that the student engaged in simulated sex acts. This constituted misconduct for which respondent could impose disciplinary consequences.
Additionally, respondent possessed competent and substantial evidence that the student endangered the safety of the classmate. While petitioner claims that “[t]here is no evidence” that the student’s conduct “was ever observed by the female student” because he was “seated several seats away,” this is directly contradicted by respondent’s video evidence. For example, a video from October 13, 2021, the date from which the photographs were extracted, portrays the student engaged in simulated sex acts directly next to the classmate. The video also portrays the student taking a water bottle from the classmate and drinking from it; talking with the three male students about whom the classmate complained; and reaching his hand toward the classmate in the same manner as others who had inappropriately touched her. While the student’s degree of culpability may have been less than other students, the video evidence dispels any notion that he was in the wrong place at the wrong time.
Petitioner’s attempts to minimize the student’s misconduct toward the classmate are unpersuasive. Petitioner asserts “upon information and belief” that the classmate “confirmed” to the principal that the student did not harass her. Respondent denies this assertion, which is contradicted by the video evidence. Additionally, petitioner alleges that the principal told her that the student “did not sexually assault” the classmate. Respondent denies this allegation, too. But even assuming it was spoken, the fact that the student did not “assault” the classmate does not mean that he did not harass her. Assault generally requires physical contact while harassment does not (compare Penal Law § 120.00  [person commits assault in the third degree when they cause physical injury to another with the requisite intent] with § 240.25 [person commits harassment in the first degree “by engaging in a course of conduct or by repeatedly committing acts which places such person in reasonable fear of physical injury”]). Indeed, respondent’s code of conduct defines “harassment,” consistent with the Dignity for All Students Act, as “the creation of a hostile environment by conduct, threats, intimidation or abuse.” Thus, I do not find that the statement of the principal, if made, undermines the fact that the student endangered the safety of the classmate.
Petitioner next argues that the penalty imposed by respondent was 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 shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954). As described above, the student endangered the safety of the classmate and engaged in disorderly conduct by simulating sex acts with another student on the school bus. I do not find respondent’s suspension of the student for five days to be so shocking to the conscience that I must substitute my judgment for that of respondent (see Appeal of E.F., 62 Ed Dept Rep, Decision No. 18,206; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).
Finally, the video footage of the disturbing events at issue in this appeal reveal only one attempt by the bus driver to restore order—which was essentially ignored by the harassing students. Respondent must take greater responsibility to ensure the safety of all students on its buses.
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner’s suggestion that these acts did not violate respondent’s code of conduct does not warrant extended discussion; at minimum, they constituted “disorderly” conduct, which includes, according to respondent’s code of conduct, the use of “profane, lewd, [or] vulgar … gestures.”
 The simulated sex acts are, in any event, portrayed in the video evidence.
 I have reviewed the video evidence, which respondent provided upon my request for in camera inspection (see 8 NYCRR 276.5).
 The definition also includes two of the three illustrative examples in Education Law § 11 . Respondent must amend its code of conduct to include subsection (c), which prohibits “the creation of a hostile environment by conduct or by threats, intimidation or abuse, ... that ... reasonably causes or would reasonably be expected to cause ... emotional harm to a student” (see Appeal of J.S., 58 Ed Dept Rep, Decision No. 17,509 [directing a board of education to review and revise its Dignity Act policy because it omitted the “emotional harm” prong]).
 The record also reflects that the student received a 30-day bus suspension. Such a suspension is akin to an in-school suspension or suspension from extracurricular activities, to which only “minimal standards of administrative due process” apply (Matter of O’Connor v Board of Educ. of Cent. School Dist. No. 1 of Vil. Of Ilion, 65 Misc 2d 40, 43 [Sup Ct, Herkimer County 1970]; see also Matter of Pellegrino, 22 Ed Dept Rep, Decision No. 11,037; Matter of Moore, et al., 22 id. 180, Decision No. 10,922). Petitioner’s meeting with the principal satisfied this standard.