Appeal of D.S., on behalf of her son V.S., from action of the Board of Education of the Vestal Central School District regarding student discipline.

Decision No. 17,171

(August 29, 2017)

Legal Services of Central New York, attorneys for petitioner, Kerisha Hawthorne and Willa S. Payne, Esqs., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Wendy K. DeWind and Cameron B. Daniels, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Vestal Central School District (“respondent”) to suspend her son, V.S. (“the student”).  The appeal must be dismissed.

The student resides in the district and was a senior at the district’s high school during the 2016-2017 school year.[1]  On November 22, 2016, the student had a verbal dispute with his math teacher, during which he called her a “f****** racist.”  On December 1, 2016, one of the assistant principals met with the student regarding the incident and placed the student on probation for senior activities.  In the meeting with the principal, the student accused the teacher of segregating students of color in the class and asked for the superintendent’s phone number, which he was given.  Later that same day, the student attended math class and said the name of the teacher’s husband and her address under his breath, but loud enough so that the teacher could hear it.  The teacher reported this incident one of the assistant principals after class.  The school’s principal met with the student later that day and directed him not to discuss the incident with anyone. 

On December 2, 2016, an assistant principal met with the students in the student’s math class to investigate the student’s allegations regarding the teacher.  The student’s allegations that the teacher was segregating students of color were determined to be unfounded.  The assistant principal met with the student on December 2, 2016 about his conduct in math class the day before.  The student admitted to talking about where the teacher lives.  The assistant principal also met with the student and his family on that day regarding the December 1, 2016 incident.  The student was suspended for five days, from December 2, 2016 through December 8, 2016.

On December 8, 2016, the last day of the student’s five-day suspension, it came to the district’s attention that the student had accused the district of racism on a personal social media account (Twitter), and that he had also uploaded a video of a young woman (who was not a student at the school) handling a gun using a different social media application (Snapchat).  Four students in the school informed the School Resource Officer (“SRO”) about the posts and indicated that they were upset by them.[2]  The SRO testified at the student’s disciplinary hearing that he received phone calls from “a few” other students concerning the posts, as well as from a State police captain whose daughter attends respondent’s high school and saw the social media posts.  

On December 8, 2016, the school administration, including the SRO, informed the student’s father about the social media posts and the reaction to them.  The SRO informed the student’s father that the police department would be stopping by the house that day once the student was home.  The police went to the student’s home and determined that no criminal activity had occurred, that the gun belonged to the student’s sister and that the gun was properly licensed and safely stored.  The police encouraged the student to use better judgment with respect to social media postings.  Following these events, the school cancelled a lockdown drill scheduled for December 9, 2016, and the principal suspended the student for an additional five days, from December 8-15, 2016.

The incident was referred by the principal to the superintendent for a long-term suspension hearing.  By letter dated December 14, 2016, the superintendent charged the student with violating the school’s code of conduct by engaging in insubordinate conduct arising from the principal’s directive not to discuss the December 2, 2016 incident with other students; engaging in conduct that was violent, including “[t]hreatening to use a weapon” as defined in the code of conduct; engaging in conduct that endangered the education, safety, morals, health and welfare of others, including defamation, harassment and intimidation against his math teacher and the school; and engaging in willful acts that disrupted the normal operation of the school community.

The superintendent’s hearing took place over five days - December 20, 2016, and January 17, 25, 30 and 31, 2017.  The student was initially represented by an attorney.  The student was allowed to return to school on January 4, 2017 while the hearing proceeded on the condition that he not discuss the hearing or engage in disruptive behavior. 

The record indicates that the student’s attorney quit on the evening of January 24, 2017, and the student was unrepresented at the hearing beginning on the third hearing date of January 25, 2017.  The student and petitioner requested an adjournment of the hearing several times during the third hearing date so that the student could obtain new counsel.  The hearing officer refused all requests to adjourn the hearing.  On the January 31, 2017 hearing date, petitioner stated that he had obtained new counsel and requested a one-week adjournment so that counsel could familiarize herself with the case.  The hearing officer denied this request.

The hearing officer rendered his decision on February 3, 2017, finding the student guilty of all charges and recommending suspension for the remainder of the 2016-2017 school year and the entire 2017-2018 school year.  These recommendations were adopted by the superintendent on February 7, 2017.  Petitioner appealed to respondent on February 23, 2017, and respondent upheld the superintendent’s decision on March 14, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 21, 2017.

Petitioner asserts that the suspension imposed upon the student is excessive and disproportionate to the conduct with which he was charged and found guilty.  Petitioner also argues that the student’s due process rights were violated when his requests for adjournment to obtain counsel were denied.  Petitioner asserts that the suspension notice was inadequate and inaccurate.  Petitioner contends that the finding of guilt was not based on substantial and competent evidence.  Finally, petitioner argues that the student’s First Amendment right to free speech was violated by the suspension, and that the student was a victim of “racism and unconscious bias.”  Petitioner requests that I overturn the determinations as to the student’s guilt and suspension.  Petitioner also seeks expungement of the suspension from the student’s record.

Respondent denies petitioner’s assertions and contends that the hearing officer’s decision, adopted by the superintendent and upheld by respondent, was based on substantial evidence and imposed a reasonable penalty.   With respect to the student’s right to counsel, respondent contends that the student was represented by counsel for several of the hearing dates, which was sufficient legal representation under the circumstances.  Respondent argues that the student received adequate notice of the charges against him and that his free speech and discrimination claims raised in the petition are outside of the scope of a proceeding pursuant to Education Law §310.  With further respect to the imposed penalty, respondent argues that the student has a “significant history of insubordinate and intimidating behavior,” and is known for “manipulating the truth and outright lying.”  Respondent further claims that the student’s misconduct has harmed the math teacher’s reputation and “caused her serious safety concerns.”  Respondent claims that the student’s posts on social media have also harmed the district’s reputation in the community.

First, I must address a procedural matter.  Petitioner submitted a reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Before initiating this appeal, petitioner commenced an action in the United States District Court for the Northern District of New York, against respondent and several school district employees seeking a determination that they violated her son’s constitutional rights under the First and Fourteenth Amendments to the United States Constitution and requesting injunctive and monetary relief (Spero v. Vestal Central School Dist., et. al., No. 3:17-cv-00007-GTS-DEP [NDNY Jan. 3, 2017]).  That action is currently pending.

Although petitioner’s pending federal court action includes additional respondents and seeks additional relief in the form of damages, the fundamental claims underlying this appeal and the federal action are the same: whether the student’s suspension was appropriate under the First and Fourteenth Amendments to the United States Constitution given that his conduct involved allegedly protected speech.  Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide an issue that a petitioner has elected to raise in federal court, particularly when that issue is a matter of federal constitutional law (see Appeal of a Student with a Disability, 49 Ed Dept Rep 180, Decision No. 15,991; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).  Moreover, I note that petitioner amended her federal complaint on April 18, 2017, adding factual assertions that were not included in the instant appeal.  Petitioner’s amended federal complaint also added additional claims for relief, including expungement of the student’s record, which is the ultimate relief sought in the matter before me.   

Under these circumstances, I decline to entertain jurisdiction of petitioner’s appeal at this time.  Consequently, the appeal is dismissed without prejudice to the commencement of a new appeal within thirty days of the final disposition of the pending federal action if any additional relief is necessary in light of such disposition (see Appeal of a Student with a Disability, 49 Ed Dept Rep 180, Decision No. 15,991).

THE APPEAL IS DISMISSED.

END OF FILE