Decision No. 18,272
Appeal of J.F., on behalf of her child, from action of the Board of Education of the Lyncourt Union Free School District regarding student discipline.
Decision No. 18,272
(May 11, 2023)
Legal Services of Central New York, attorneys for petitioner, Susan M. Young, Esq., of counsel
Ferrara Fiorenza PC, attorneys for respondent, Lindsay A. G. Plantholt, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Lyncourt Union Free School District (“respondent”) to impose discipline upon her child (the “student”). The appeal must be sustained.
The student attended respondent’s middle school during the 2021-2022 school year. On May 31, 2022, the school principal (“principal”) and school resource officer (“SRO”) visited classrooms to generally discuss school safety and threats of violence. During these visits, the principal and SRO “encourage[d] students to report any threats of violence that they may hear.”
Later that same day, a student (the “first reporter”) asserted to the principal that the student had made a threat during lunch a few weeks earlier, stating that he was “going to shoot up the school on June 3” and had a “list of people.” The first reporter identified several names on this “list” as well as the name of a second student who had allegedly heard the statement (the “second reporter”).
After informing the superintendent of this account, the principal and SRO interviewed other students, including the second reporter, the parent of the first reporter (the “parent”), the student, and three other students who sat at the student’s lunch table. The second reporter similarly indicated that the student had, during lunch a few weeks prior, “threatened to shoot up the school on June 3.” Additionally, the parent of the first reporter stated that “her child had, in fact, come home and reported the [s]tudent’s alleged threat to a her a few weeks prior.” The student, when interviewed, denied making the threat but admitted to having a “character list,” which he described as “a list of people that he intended to draw.” Three other students at the lunch table denied that the student made any such comment.
Thereafter, the principal suspended the student for five days, from June 2 through June 8, 2022. In a notice of hearing, the superintendent informed the student that a hearing officer would preside over a long-term suspension hearing on June 7, 2022 concerning the charge of “violent conduct.” The notice provided the following narrative summary of the charges against the student:
It was reported by students that [the student] threatened to shoot up the school on June 3rd. They said he said this during lunch a few weeks ago. The students also reported that he mentioned a list. When we [i.e., the SRO and principal] interviewed [the student] he denied this.
The hearing convened as scheduled. The principal offered hearsay testimony concerning her conversations with the two reporters and parent. In addition, the principal testified that she interviewed other students who told her they did not hear the student make a violent statement. The student also testified, denying that he made the statement attributed to him. The hearing officer also accepted a document into evidence consisting of “statements of students and staff.” This document indicated that the three students who regularly sit with the student at lunch denied hearing the comment.
In a written report and recommendation, the hearing officer recommended that the student be found guilty of the charge against him “[o]n the basis of the principal’s creditable (sic) testimony ....” The hearing officer further recommended that the student be suspended through January 27, 2023—the first semester of the 2022-2023 school year—with the option of returning at the beginning of the 2022-2023 school year if he participated in counseling, submitted to a “threat assessment” in August 2022, and completed an alternative education program. The superintendent adopted these findings and recommendations by letter dated June 13, 2022.
Petitioner appealed the superintendent’s determination to respondent, which denied petitioner’s request to reduce or modify the long-term suspension. This appeal ensued. Petitioner’s request for interim relief was denied on August 29, 2022.
Petitioner argues that respondent failed to produce competent and substantial evidence of the student’s guilt and that the penalty was excessive. For relief, petitioner requests that the student’s long-term suspension be expunged from his record.
Respondent contends that it produced competent and substantial evidence of the student’s guilt and that the penalty imposed was proportionate to the offense.
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).
Hearsay evidence is admissible in administrative hearings, and hearsay alone may constitute competent and substantial evidence so long as “such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted” (Matter of Agudio v State Univ. of N.Y., 164 AD3d 986, 988 [3d Dept 2018] [internal quotation marks and citations omitted]; Matter of Hill v State Univ. of N.Y. at Buffalo, 163 AD3d 1454, 1455 [4th Dept 2018]; Matter of McGillicuddy’s Tap House, Ltd. v New York State Liq. Auth., 57 AD3d 1052, 1052-1053 [3d Dept 2008]; see Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 141 ). “However, when the hearsay evidence is seriously controverted, common sense and elemental fairness suggest that [such evidence] may not constitute the substantial evidence necessary to support [a] … determination” (Matter of McGillicuddy’s Tap House, Ltd. v New York State Liq. Auth., 57 AD3d 1052, 1052-1053 [3d Dept 2008]; see Matter of 125 Bar Corp. v State Liq. Auth. of State of N.Y., 24 NY2d 174, 179 )
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).
The appeal must be sustained for substantially the same reasons as Appeal of D.S. (61 Ed Dept Rep, Decision No. 18,072). Here, as in that appeal, the hearing officer received conflicting evidence as to the charge against the student but failed “to make factual findings, including credibility determinations, to resolve th[e] inconsistent testimony.” As stated in Appeal of D.S.,
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] ).
In this case, the hearing officer made a credibility determination only as to the principal, who was not a direct witness. The hearing officer made no effort to address the conflicting evidence provided by the student or the statements of the students who sat with him at the lunch table when the alleged statement was made. Nor did the hearing officer opine on the credibility of the student—the only witness to offer direct, non-hearsay evidence of what occurred. In other words, while the hearing officer permissibly found that the principal was credible, he failed to establish that the hearsay evidence offered by the principal was not seriously controverted.
The evidence in the record reveals that, indeed, the district’s hearsay evidence was seriously controverted. Two students, through hearsay testimony offered by the principal, claimed to have heard the alleged comment. The student, in direct testimony, denied making the comment. Three other students, again through hearsay, denied hearing the comment. This required the hearing officer to explain why he credited one party’s version of these events over the other (see Patrick v Success Academy Charter Schools, Inc., 354 F Supp 3d 185, 225 [ED NY 2018] [expressing doubt that hearsay evidence in a “school suspension case,” while admissible, constituted substantial evidence where it rested upon “scant findings of fact ... [that did] not contain any findings as to credibility”] [internal citations omitted]). The hearing officer failed to make any other credibility or reliability determination to explain his holding. Thus, I cannot find that the district produced competent and substantial evidence that the student engaged in the charged conduct (Appeal of D.S., 61 Ed Dept Rep, Decision No. 18,072; Appeal of a Student with a Disability, 60 id., Decision No. 17,929).
To the extent they are not addressed herein, respondent’s remaining contentions are without merit.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent expunge the long-term suspension that is the subject of this appeal from the student’s record.
END OF FILE
 The principal summarized her investigation findings on this point as follows: “[s]o I had two students that said he said this[;] other ones didn’t.”
 This was consistent with the principal’s testimony that she “talked to the other students” identified by the student as sitting at his lunch table.
 At the hearing and in this recommendation, the hearing officer found that a “list” possessed by the student was not “threatening” in nature. To the extent that the student’s possession of this list formed part of the charges against the student, I find that it was resolved in the student’s favor and is no longer at issue.
 Respondent agreed to expunge the short-term suspension based on procedural deficiencies.
 Petitioner also requests that the suspension be shortened so that the student can return to school. However, the record indicates that the student returned to school as of the first day of the 2022-2023 school year. Further, the fall term of the 2022-2023 school year is complete, and the student’s maximum period of suspension has passed. Accordingly, no meaningful relief can be ordered in this respect (see e.g. Appeal of K.U., 62 Ed Dept Rep, Decision No. 18,156).
 While respondent attaches great significance to the fact that the first reporter told her parent about the student’s comment, this corroborates the fact that the first reporter believed she heard the statement, not that it was uttered in the first place.