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Decision No. 18,383

Appeal of D.B., on behalf of her child, from action of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District regarding student discipline.

Decision No. 18,383

(February 26, 2024)

Legal Aid Bureau of Buffalo, Inc., attorneys for petitioner, Judith M. Gerber, Esq., of counsel

Hodgson Russ, LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Kenmore-Town of Tonawanda Union Free School District (“respondent” or the “board”) to impose discipline upon her child (the “student”).  The appeal must be dismissed.

The student attended eleventh grade in respondent’s district at the time of the events giving rise to this appeal.  During the overnight hours of September 17 to 18, 2022, the student visited another district student (“student A”) at her home.  At some point during the overnight hours, the students fought.  Thereafter, the student recorded a video of student A naked and posted the video to social media.  The student deleted the video shortly after posting it.  However, another district student recorded the video before it was deleted.  The record indicates that the video was widely viewed and/or shared by district students in the days after it was posted.  The student was then suspended from school for five days. 

By letter dated September 27, 2022, the superintendent notified petitioner that the district would conduct a long-term suspension hearing to determine whether an additional period of suspension should be imposed.  The letter charged the student with endangering the safety, health, morals, or welfare of others when he took and shared the video of student A, thereby violating the district’s code of conduct. 

The hearing, presided over by a hearing officer, convened on September 30, 2022.  The student pleaded not guilty.[1]  At the conclusion of the hearing, the hearing officer found the student guilty of the charges.

On October 24, 2022, respondent conducted a manifestation determination review, which concluded that the student’s conduct was not a manifestation of a disability.[2]  

The long-term suspension hearing reconvened on November 14, 2022 to consider the student’s penalty.  Petitioner’s counsel and two youth mentors who had worked with the student testified, and the student made a statement.  The superintendent adopted the hearing officer’s findings and recommendation of a one-year suspension.  Petitioner appealed this determination to respondent, which upheld the suspension.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 16, 2023.

Petitioner asserts that the student’s punishment is excessive, disproportionate to the charged conduct, and inconsistent with prior decisions of the Commissioner.  Petitioner further argues that respondent failed to give proper weight to the student’s challenging life circumstances, character, disciplinary history, or the testimony of the mentors who spoke on his behalf.  For relief, petitioner requests that I direct respondent to reduce the length of the student’s suspension and order his return to school.  Petitioner also requests that I require respondent to comply with its code of conduct. 

Respondent argues that the petition is untimely and does not fully comport with the formatting requirements of the Commissioner’s regulations.  On the merits, respondent argues that the student’s punishment was appropriate.

I will first address respondent’s procedural claims.  First, to the extent respondent asserts that the petition does not precisely meet the requirements of 8 NYCRR 275.3 (c), any such formatting errors are de minimis and I decline to dismiss the appeal on that basis.

Next, respondent argues that the appeal should be dismissed as untimely.  Specifically, respondent asserts that, “[b]y letter dated March 10, 2023, [p]etitioner was made aware of the [board’s] determination” and that petitioner therefore had until April 10, 2023 to commence an appeal thereof (emphasis added).  As in Appeal of R.E. and J.E.,[3] respondent does not explain the circumstances under which petitioner allegedly received notice of the decision.  Petitioner, by contrast, asserts that she received respondent’s determination by mail.  Respondent’s determination was mailed to petitioner on March 10, 2023.  Affording five days for mailing and excluding Sundays and holidays, petitioner had until April 17, 2023 to appeal respondent’s determination.  The appeal was commenced by personal service on April 11, 2023 and, thus, is timely (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438; Appeal of G.H. and S.H., 57 id., Decision No. 17,269).

Turning to the merits, 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).  This analysis generally considers the nature of a student’s offense, their age and developmental level, prior disciplinary history (if any), the extent to which suspension is necessary to ensure the safety of the school community, the extent to which the district has attempted to help the student learn to assume and accept responsibility for their behavior, and other equitable factors (see e.g. Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055; Appeal of N.V.D., 60 id., Decision No. 17,985).[4]  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). 

Here, the student’s conduct, distributing a nude image of a classmate on social media, was extremely serious and inherently threatened the safety and well-being of the student portrayed therein.  The record indicates that student A lost days of educational instruction, was subjected to physical and verbal hostility from other students, and has sought counseling.  The record further indicates that the student’s conduct resulted in a degree of disruption to the school community, including verbal threats and physical altercations both on and off school property.

Moreover, the student was 15 years old at the time of the incident and, by all accounts, capable of understanding the nature of his transgression.  While he has since been found eligible for special education as a student with an other health impairment,[5] petitioner does not allege that the student’s disability was related to the conduct described herein.  In this respect, respondent conducted a manifestation determination review in connection with the hearing and concluded that the student’s conduct was not a manifestation of his disability.[6]

As for prior discipline, the record reveals that the student engaged in four physical altercations from 2018-2020.  Each altercation resulted in one or two days of in- or out-of-school suspension.  The student also, in two separate incidents in 2020 and 2019, disregarded instructions and “refused to follow ... rules.”

As for future harm to the school community, the student’s actions imperiled the safety of student A and severely disrupted school operations—at least for a period of several days.  As described above, the video of student A became widely distributed.  Respondent was justified, if not obligated, to prevent contact between the student and student A for some period of time after the incident.

Additionally, respondent has attempted to help the student assume and accept responsibility for his behavior by, during his suspension, providing access to a full-day alternative instruction operated by a Board of Cooperative Education Services (BOCES).[7]  According to BOCES’ website, this program offers “[r]estorative practices,” “[s]tudent-focused behavior management,” and an “on-site” social worker.  Thus, although respondent removed the student from his usual placement, it offered him the opportunity to attend school full-time in a program designed to address his needs.

Finally, with respect to equitable factors, the student’s personal hardships, while extremely sympathetic, do not excuse his conduct.  Moreover, the record does not support a finding that the student has accepted responsibility for his actions.  For example, after describing his conduct as “an honest mistake,” the student said that he would have acted differently if he had known what the consequences of his actions would be.  He identified these consequences as: “not being able to play football; being suspended from school; [and] not being able to do different things going on.”  This reflects that the student requires assistance in understanding how his actions impacted student A and how he can grow from this incident.[8]

Considered as a whole, the above factors support deference to the district’s suspension.  While I may not have imposed the suspension herein, petitioner has not demonstrated that it is so shocking to the conscience that it must be expunged.[9] 

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.




[1] Petitioner does not contest that the student engaged in the conduct described above on appeal.


[2] At the time, the student was presumed to have a disability; he has since been found eligible for special education as explained below.


[3] 58 Ed Dept Rep, Decision No. 17,438.


[4] While prior appeals such as those cited by petitioner upheld lesser penalties for (arguably) similar conduct, these decisions are not controlling as the Commissioner determines only whether the length of a suspension shocks the conscience.  Thus, the fact that the Commissioner declined to expunge a suspension should not be interpreted as a finding that the length of the suspension was appropriate.


[5] This category of eligibility is defined as “having limited strength, vitality, or alertness ... that results in limited alertness with respect to the educational environment” (34 CFR 300.8 [c] [9]).  


[6] An appeal of that determination must take the form of an expedited impartial hearing before an impartial hearing officer or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations (Appeal of M.W., 61 Ed Dept Rep, Decision No. 18,068).


[7]  Education Law §§ 3204 (2) (i), 3205 (1) (a); see Opinion of Counsel No. 243, available at  Testimony at the long-term suspension hearing revealed that the student did not regularly attend this alternative high school program.


[8] I also note, as stated in Appeal of B.A., that “[l]earning and success are not solely academic in nature; they are dependent upon the social-emotional support that school districts are required to provide .... [School Districts are] responsible for ensuring that all students have equitable access to interventions that will support their holistic academic and social-emotional development as learners and developing, contributing members of society” (62 Ed Dept Rep, Decision No. 18,209).  Indeed, the word discipline is derived from the Latin discipulus, which means pupil.  This reflects that education lies at the core of any effective disciplinary measure ( Dictionary, discipline, []).


[9] The Commissioner has held that a penalty cannot be “retroactive[ly] amend[ed] ... to reflect a lesser penalty” on appeal (Appeal of J.R., 61 Ed Dept Rep, Decision No. 18,091).  Therefore, the student’s suspension, which has been served, may only be expunged or upheld in its entirety.