Appeal of N.T., on behalf of his child, from action of the Board of Education of the Newfane Central School District regarding student discipline.

Decision No. 18,575

(June 30, 2025)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Tracie L. Lopardi, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges the determination of the Board of Education of the Newfane Central School District (“respondent”) to suspend his child (the “student”).  The appeal must be sustained.

On September 17, 2024, respondent’s superintendent learned of a message sent through the social media application Snapchat that allegedly threatened its district and a neighboring school district.  The student was subsequently questioned by investigators with the Niagara County Sheriff’s Office and admitted that she sent the message in question to a classmate.  As a result, respondent suspended the student for five days.

By letter dated September 18, 2024, the superintendent indicated that the district would convene a hearing to determine if a longer period of suspension was appropriate.  The student was charged with violating the portion of respondent’s code of conduct prohibiting the following:

Terrorist threats of actions, including discussion of, reference to, or comments about committing school violence (school shooting, bombing, etc.) or violence toward a specific member or group within our school community.[1]

The hearing, presided over by a hearing officer, occurred on September 23, 2024.  At the hearing, the student admitted to creating and sending the Snapchat message, asserting that she had reproduced a threat that was circulating online.[2]  In a written report adopted by the superintendent, the hearing officer found the student guilty and recommended a suspension of one calendar year.  Petitioner appealed to respondent, which denied his appeal by letter dated November 14, 2024.[3]  This appeal ensued.  Petitioner’s request for interim relief was granted on December 16, 2024.

Petitioner asserts that the student’s punishment is excessive and disproportionate to the charged conduct.  In this respect, petitioner complains that respondent denied him an opportunity to submit evidence concerning the circumstances under which the message was sent.  Petitioner further contends that respondent failed to consider the student’s past trauma and mental health issues.  For relief, petitioner requests that the student be returned to school and the suspension be expunged from her record.

Respondent argues that its decision was based on substantial and competent evidence.  Respondent further asserts that the discipline imposed was proportionate to the severity of the offense involved.

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 cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).  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).

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 hearing afforded the student was flawed and led to a factual record that raises more questions than it answers.  The parties agree that the student sent a message to a classmate over social media that contained the statement:  “Newfane and lockport schools better watch out!  We gunna shoot dat bitch,” followed by a laughing emoji.  While the hearing officer permissibly afforded probative weight to the student’s admission, he failed to examine the context in which it was made.[4]

The student testified that she was conversing with a classmate on social media on the evening of September 16, 2024.  In that conversation, the student referenced threatening messages she had seen circulating online within the community.  The classmate replied that she did not believe her.  The student then, according to petitioner, “panicked and made a copy of one of the posts … and sent it privately to only [the classmate] so that [the classmate] would not bully her for lying.”  Petitioner asserts that the classmate distributed the Snapchat message thereafter.

The hearing officer ignored three attempts by petitioner to submit evidence in support of the student’s version of events.  First, after agreeing that the hearing officer could ask questions directly to the student so long as he reserved his right to direct her not to answer, petitioner stated:  “I also …  for the record, I do have a video recording of the whole investigation ….”  The hearing officer then asked the student whether she admitted the charges against her, after which petitioner stated:  “can I object?  Again, … I have the video recording ….”  Petitioner then explained the circumstances under which the student sent the message.  After a brief exchange, the hearing officer asked the district:  “what evidence do you have in support of the charges?”

Second, in response to a question from the hearing officer as to whether petitioner sought to introduce evidence on the student’s behalf, petitioner replied that he “ha[d] no problem sharing” a video recording of a discussion between petitioner, the student, and a police officer, as well as information on the student’s phone corroborating the student’s testimony.  The parties then proceeded to discuss a different topic and did not return to the topic of petitioner’s proposed submissions. 

Finally, on the second day of the hearing, petitioner asked the hearing officer:  “am I allowed to share this video with you?”[5]  The hearing officer did not respond; instead, two of the district’s witnesses offered further statements in support of their case. 

The hearing officer erred in failing to consider petitioner’s proffered evidence.  The issue of whether the student was simply passing on a threat she had seen was crucial to assessing her culpability in this matter.  If the student, in fact, reproduced a message and sent it directly to a classmate with whom she had a prior relationship, there is no evidence in the record to suggest that the subsequent distribution of this message was foreseeable (compare with Appeal of K.W., 64 Ed Dept Rep, Decision No. 18,250 [held foreseeable that a video sent to sports team via Snapchat’s “Chat” option would become known to school district] and Appeal of a Student with a Disability, 59 id., Decision No. 17,834 [“it is generally foreseeable that messages sent via a social media application will reach the attention of school authorities”]).  Thus, the hearing officer erred by ignoring petitioner’s multiple attempts to introduce evidence on this point (see Appeal of Morris, 64 Ed Dept Rep, Decision No. 18,515; see also Appeal of J.R., 61 Ed Dept Rep, Decision 18,091; Appeal of M.P. and T.P., 60 id., Decision No. 17,937).[6]  This, in turn, makes it impossible to ascertain the student’s culpability (see Appeals of E.F., 64 Ed Dept Rep, Decision No. 18,494; compare Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).

Regardless of this error, I find that the nature of the student’s offense considered alongside the other factors in the analysis supports a finding that the discipline imposed was inappropriately punitive.  It is unreasonable to expect a 12-year-old to predict or understand that a message she sent to a classmate, which she believed would be interpreted within the context of a larger discussion, would become widely distributed.[7]  With respect to prior offenses, the student’s anecdotal record reveals a handful of incidents over the past two years that are relatively minor in nature, such as cutting class, cursing, and excessive lateness.[8]  And, other than offering placement in an alternative educational setting during her suspension, there is no evidence that the district attempted to help the student learn to assume and accept responsibility for her behavior.[9]  Under these circumstances, I find a year-long suspension shocking to the conscience (see Appeal of E.F., 64 Ed Dept Rep, Decision No. 18,494; Appeal of E.R., 63 id., Decision No. 18,309; Appeal of B.A., 62 id., Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055). 

I decline, as respondent requests, to determine an alternative length of time for which suspension would be appropriate.  The Commissioner has recently clarified that the remedy for an excessive suspension is expungement of the entire suspension (Appeals of E.F., 64 Ed Dept Rep, Decision No. 18,494; Appeal of D.B., 63 id., Decision No. 18,383).  To the extent Appeal of A.G. truncated the length of a long-term suspension, I decline to follow that approach here (41 Ed Dept Rep 262, Decision No. 14,681; Matter of Brookset Bus Corporation, 21 id. 503, Decision No. 10,770 [“The proper means or enforcing a decision of the Commissioner of Education depends upon the circumstances presented and is subject to the Commissioner’s discretion”]).

Finally, the record indicates that the Niagara County Sheriff’s Office filed criminal charges against the student for “making a threat of mass harm.”  While I am not privy to the evidence possessed by the Sheriff’s Office, this charge is wildly disproportionate to the record herein (Penal Law § 240.78 [person commits a threat of mass harm when she “threatens to inflict … serious physical injury or death … with the intent to intimidate a group of people or to create public alarm”]).

To the extent they are not addressed therein, respondent’s remaining arguments are without merit.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent expunge the suspension that is the subject of this appeal from the student’s record.

END OF FILE