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Decision No. 18,309

Appeal of E.R., on behalf of his child, from action of the Board of Education of the Great Neck Union Free School District regarding student discipline.

Decision No. 18,309

(July 31, 2023)

Warren Law Group, attorneys for petitioner, Cynthia A. Augello, Esq., of counsel

Ingerman Smith LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Great Neck Union Free School District (“respondent”) to impose discipline on his child (the “student”).  The appeal must be sustained.

During the 2022-2023 school year, the student attended eleventh grade at one of respondent’s high schools.  On Friday December 16, 2022, nine students who did not attend respondent’s district gained entry to the high school (the “non-students”).  According to the record, the non-students planned to visit the girlfriend of one of the students and “confront” another student.

On December 16, 2022, the student sat to eat lunch in the library next to a classmate with whom he normally sat.[1]  Another student was sitting with the classmate at the table, while two others sat “way in the corner” of the room.  The student initially assumed that these students attended respondent’s district but later learned that they did not.  According to the student, the non-students indicated that that they had weapons and would use them against the student if he told anyone.  The student further testified that some of the non-students showed him a video of them assaulting someone.  At approximately 1:00 p.m., at the request of the non-students, the student accompanied one of them from the library to the east gym locker room.

The nine non-students were eventually discovered by high school administration after the school day had concluded.  A search of the non-students revealed that one had a taser and pepper spray while a second had a taser and a butterfly knife.  The principal proceeded to review surveillance video footage, which portrayed the student escorting one of the non-students to the locker room.

On Monday December 19, 2022, the student met with the principal and assistant principal.  At the principal’s request, the student generated a written statement describing his role in the incident.  The principal thereafter suspended the student for five days.

On January 3, 2023, the district convened a long-term suspension hearing concerning the student’s conduct.[2]  The district charged the student with engaging in disorderly/disruptive conduct and endangering the safety, morals, health, or welfare of himself or others as follows:

  1. On December 16, 2022 … [the student] was with a non-student on [s]chool [d]istrict property during the school day and such non-student was not authorized to be on [s]chool [d]istrict property.
  2. On December 16, 2022 … [the student] escorted a non-student[3] who did not have authorization to be [on] (sic) [s]chool [d]istrict property to the [e]ast [g]ym [b]oys’ locker room while knowing the non-student was in possession of a weapon on [s]chool property.

At the conclusion of the hearing, the hearing officer found the student not guilty of charge one and guilty of charge two, with the qualification that he did not present a danger to “himself.”  The hearing officer recommended that the student be suspended through June 30, 2023.  In a decision dated January 6, 2023, the superintendent adopted the hearing officer’s recommendations regarding guilt and penalty.  Petitioner appealed this determination to respondent, which denied his appeal on February 16, 2023.[4]  This appeal ensued.  Petitioner’s request for interim relief was granted on April 4, 2023.

Petitioner argues that the hearing officer improperly determined that the student’s testimony was not credible.  Petitioner further argues that he was denied an opportunity to cross-examine witnesses and present his side of the story.  Petitioner additionally contests the nature and quality of the evidence presented by the district, much of which consisted of hearsay or double hearsay.  He also contends that the length of the suspension is excessive and shocking to the conscience.  For relief, petitioner seeks expungement of the short-term and long-term suspensions from the student’s record. 

Respondent denies petitioner’s allegations, arguing that it proved the student’s guilt by competent and substantial evidence.  Respondent further contends that the penalty was reasonable and proportionate to the severity of the student’s misconduct.[5]

Initially, petitioner’s procedural challenges to the long-term suspension hearing are without merit.  Education Law § 3214 (3) (c) (1) provides that no student may be suspended in excess of five school days unless the student and person in parental relation to the student have an opportunity for a fair hearing, upon reasonable notice, at which the student has the right to be represented by counsel, to question witnesses who testify against the student, and to present witnesses and other evidence on his or her own behalf (see Appeal of L.M., 58 Ed Dept Rep, Decision No. 17,561; Appeal of F.W., 48 id. 399, Decision No. 15,897).  “Although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial” (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 139-140 [1997]).  As long as students receive “a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served” (id. at 140; see, e.g., Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,652).  

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 record supports a finding that petitioner and the student received an opportunity to tell their side of the story.  Petitioner received notice of the hearing and his right to counsel prior to, and at the outset of, the long-term suspension hearing.  Petitioner was able to present evidence and question witnesses at the hearing.  While petitioner objects to the district’s introduction of hearsay evidence, such 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]).  Thus, I find that petitioner received all of the procedural protections to which he was entitled.

Turning to the merits, the record supports a finding that the student engaged in the charged conduct.  The student admitted, and petitioner does not contest, that he escorted a non-student who possessed a weapon to the high school locker room.[6]  Therefore, I find that the district produced competent and substantial evidence that the student engaged in charge two.

However, the record contains mitigating evidence that renders respondent’s penalty excessive.  The length of a student suspension must be proportionate to the severity of the offense.  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). 

At the hearing, petitioner argued that the non-students coerced the student into escorting one of them down the hallway based upon explicit or implicit threats to his safety.  The hearing officer rejected this argument, finding that “the student’s testimony [was] not credible.”  The hearing officer elaborated upon this finding in his decision as follows:

[The student’s] claim that he only cooperated with the non-student trespassers because he was afraid that they might hurt him is not believable.  He failed to provide any reasonable explanation for his failure to report the intruders to any adult over the course of two plus class periods while he admittedly remained in the company of the non-student trespassers.  Although he testified that the non-student trespassers had warned him not to tell anyone, he nevertheless told several students who laughed at him and, therefore, he didn’t believe that any teacher would believe him either.  His suggestion that his fear of harm prevented him from warning a teacher but did not prevent him from warning other students is foolish.  It is hard to imagine that any student in actual danger would not seek a teacher’s help solely because he doesn’t trust teachers and never speaks to them.

Ordinarily, “[g]reat deference is given to [a finder of fact’s] credibility determinations, as [they have] ... had the opportunity to view the witnesses, hear the testimony, and observe their demeanor” (Matter of Oliver A., 167 AD3d 867, 868 [2d Dept 2018]; see also Vlack v. Ternullo, 53 NY2d 1003, 1004 [1981]).  I decline to do so here, however, as the hearing officer’s finding is grounded in unsupported assumptions about what a reasonable student should have done rather than the evidence in the record.[7] 

As indicated above, the student testified that the non-students indicated that that they had weapons and that they would harm him if he told anyone.  The student explained his understanding of the circumstances as follows:

Because if I went anywhere, if I told anybody, if I, you know, escaped from them per se, they might have tried to hurt me later on, like, they had said they would.  And they told me to bring him to the locker room.  I didn’t go on my own will.

Much of the student’s testimony was corroborated by the principal, who testified that the non-students “asked [the student] to take him to the east gym locker room” and “that they were in possession of weapons and that they would get him next.”[8]  The principal also testified that the student completed a written statement on the day he was questioned.  This statement, entered into the record, indicates that the non-students:

had weapons and said that I shouldn’t tell anybody anything or they would come after me next.  They asked me to bring them to the locker room as they had weapons[;] I didn’t want to get hurt.

The principal further confirmed that two of the non-students were found to have weapons in their possession: one had a taser and pepper spray while a second possessed a butterfly knife and a taser. 

The student also testified about his efforts to inform others about the non-students.  He stated that, during the school day, he told two friends he encountered in the hallway about the non-students because he “trust[ed] them to provide [him] with some sort of explanation of what [he] could so.”  He also broached the topic with a teammate later that day at a sports practice.  None of these friends, however, believed him.  As a result, the student testified that, after these conversations, he “felt like no one would believe [him].”  The student also testified that he “didn’t want to put [his] own safety on the line” by telling an adult about the non-students.

I do not find the student’s testimony so inherently implausible that the hearing officer was entitled to reject it out of hand.  It is undisputed that the non-students informed the student that they had weapons, intended to harm someone, and would harm the student if he reported them.  While the hearing officer believed the student’s decision to share this information with peers instead of a teacher was “foolish,” the student had no legal duty to inform an adult of the non-students’ presence.[9]  Moreover, the implication of the hearing officer’s reasoning is that that the student willingly joined or supported the non-students’ plan, a proposition that finds no support in the record.[10]  Thus, I find that the hearing officer’s credibility finding is not entitled to deference (compare Appeal of J.C. and P.C., 41 id. 395, Decision No. 14,723 [testimony of student rejected where portions of his testimony were contradicted by evidence in the hearing record and his demeanor was “evasive”]).

Affording appropriate weight to the student’s testimony, his culpability in this incident was minimal.  His escorting of a single non-student under threat of violence pales in comparison to respondent’s inability to prevent, or discover, the unauthorized entry of nine non-students into one of its high schools.[11]  As respondent’s code of conduct indicates, the responsibility for building security rests with “[t]he building principal or designee,” who “is responsible for all persons in the building and on the grounds.”  The code of conduct further indicates that “it is expected that all staff will confirm that any visitors to a school are there for a legitimate purpose.”  Nowhere does it suggest that students are responsible for the security of school buildings—and nor should they be.

As such, I find the out-of-school suspension imposed by respondent to be shocking to the conscience.  Ideally, the student would have promptly reported the non-students to an adult (see Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209).  But he cannot be punished for failing to meet this ideal—particularly where the record contains a legitimate basis for his reluctance to do so.

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


IT IS ORDERED that respondent expunge any reference to the short- and long-term suspensions at issue in this appeal from the student’s record.



[1] According to the record, students are allowed to eat their lunches in different portions of the building.  


[2] The long-term suspension hearing was originally scheduled for December 22, 2022 but rescheduled with the consent of petitioner.


[3] While portions of the record suggest that the student escorted several or all of the non-students, he was only charged with escorting a single non-student to the locker room.


[4] Petitioner simultaneously filed a civil rights complaint with the United States Department of Education’s Office for Civil Rights.  In this complaint, he alleged the existence of a racially hostile educational environment within Great Neck.  Thus, this issue is not before me; in any event, it would be outside the scope of an appeal to the Commissioner pursuant to Education Law § 310 (see, e.g., Appeal and Application of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001; Appeal of T.A., 58 id., Decision No. 17,443).


[5] I decline to dismiss the petition, as respondent requests, for failure to include page numbers and/or being served with pages out of order.  Petitioner’s allegations are set forth in numbered, sequential paragraphs.  Thus, even if served out of order, the six pages of the petition could easily be reordered.  Moreover, petitioner presents a clear statement of his claims and sought relief.  Therefore, I decline to dismiss the petition (8 NYCRR 275.10; Appeal of Escobar, 57 Ed Dept Rep, Decision No. 17,256; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).


[6] While the testimony on the nature or possession of this weapon was somewhat ambiguous, petitioner does not contest this finding on appeal.   


[7] Alternatively, the hearing officer could have grounded his credibility finding in an assessment of the student’s demeanor (e.g., BFT Realty v. Medina, 28 Misc 3d 1221(A) [Civ Ct, Bronx County, 2010] [witness found not credible, in part, based upon his “nervous demeanor”]).  Such a finding would necessarily be entitled to deference, as only the hearing officer personally observed the witnesses before him.


[8] The principal subsequently clarified: “Or I should say not get him next.  They would come after, [these are the student’s] words: ‘They would come after me next.’” 


[9] Similarly, the student did not have a legal duty to prevent the non-students from causing physical harm to their intended target (see Restatement [Second] of Torts § 315 [1965]; Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209).


[10] The only possible evidence in this respect is a statement by the principal on re-direct examination that the student did not initially indicate that he was threatened, but only did so in his written statement.  Without more, I cannot find that this statement has significant probative value.  Indeed, the hearing officer did not acknowledge or rely upon this testimony as a basis for his credibility determination.


[11] The principal testified that the non-students were only discovered around 3:30 p.m. when “… a teacher noticed they did not belong.”