Appeal of D.B., on behalf of B.B., from action of the Board of Education of the Whitney Point Central School District regarding student discipline.

Decision No. 15,299

(August 29, 2005)

Pope, Schrader & Murphy, LLP, attorneys for petitioner, James A. Sacco, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondent, Charles E. Symons, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the suspension of her son, B.B., by the Board of Education of the Whitney Point Central School District ("respondent"). The appeal must be dismissed.

During the 2004-2005 school year, petitioner's son was sixteen years old and attended eleventh grade in respondent's high school. On December 17, 2004, a fifteen year-old girl attending ninth grade at the same high school reported to the principal that B.B. forced her to perform a sexual act the prior afternoon in a school hallway. She made a statement to police reporting the incident on December 21, 2004. By letter dated January 5, 2005, the high school principal notified petitioner that her son was suspended for five days, from January 6, 2005 through January 12, 2005, for violating respondent's sexual harassment policy by making an unwelcome sexual advance on another student as well as unwelcome touching and pressuring that student for sexual favors. By letter dated January 7, 2005, respondent's superintendent notified petitioner that a hearing would be held January 10, 2005 on those charges.

On January 10, 2005, petitioner and her son were present and represented by counsel at the superintendent's hearing. The complaining ninth grade student testified and her December 21, 2004 statement to police was introduced into evidence. A tenth grade student testified about her observation of, and conversation with, the complaining witness before and after the incident on December 16, 2004. The hearing officer, by decision dated January 12, 2005, found petitioner's son guilty of violating respondent's sexual harassment policy by exerting physical pressure and intimidation for sexual activity or favors; making remarks of a sexual and demeaning nature; using obscene and sexually suggestive language, gestures and bodily movements; and engaging in unwelcome touching and sexual contact with a minor. After reviewing B.B.'s anecdotal record, the hearing officer recommended that B.B. be suspended for one year. The hearing officer recommended that an appropriate educational setting be provided for petitioner's son, including but not limited to an alternative school, during the period of suspension. The hearing officer also incorporated into his decision a temporary court order of protection, issued December 24, 2004, that petitioner's counsel entered into evidence at the hearing. By letter dated January 12, 2005, respondent's superintendent accepted the hearing officer's recommendation. Petitioner's appeal to respondent was denied on February 8, 2005. This appeal ensued.

Petitioner seeks an order reversing the decision of respondent and expunging references to the suspension from her son's school record. Petitioner contends that her son had no notice that a sexual act with someone under the age of consent was prohibited by respondent's code of conduct. Petitioner alleges that respondent's sexual harassment policy is vague because the term "unwelcome sexual advance" is not defined in the code of conduct and was not explained to her son at his orientation at the beginning of the school year. Specifically, petitioner contends that "unwelcome" was not defined to include "incapable of consent under the New York State Penal Law," and the hearing officer's legal conclusion was, therefore, wrong as a matter of law and inconsistent with respondent's practice. Petitioner argues in her memorandum of law that her ability to cross examine the complaining witness was impaired; the hearing officer acted as an advocate for the school district during the hearing; the hearing officer was the regular attorney for the school district; instant messaging communications evince a prurient desire on the part of the complaining student; and further investigation gives reason to believe the complaining student was lying.

Respondent denies that its student handbook did not give B.B. proper notice that his misconduct could subject him to serious disciplinary sanctions. Also, respondent contends that the appeal should be dismissed because the suspension decision was based on competent and substantial evidence and the penalty is not excessive. Respondent asserts that it complied with all due process requirements.

Before proceeding to the merits, I will address petitioner's reply and memorandum of law. 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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188). 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.

A memorandum of law should consist of arguments of law (8 NYCRR �276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540). Therefore, I have not considered the new assertions made in petitioner's memorandum of law that were not set forth in her petition.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR �275.10; Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of S.C., 44 Ed Dept Rep 164, Decision No. 15,134).

Education Law �3214(3)(a) authorizes a school district to suspend a "pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others." 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 objectionable conduct (Matter of Bd. of Educ., Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Matter of Bd. of Educ., City School Dist. of the City of New York v. Mills, et al., 293 AD2d 37; Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146).

Respondent's code of conduct clearly states that students are subject to disciplinary action, including suspension, when they engage in "sexual harassment," consisting of "unwelcome sexual advances, requests for sexual favors, and other inappropriate verbal, written or physical conduct of a sexual nature" that "may include, but is not limited to: (1) sex oriented verbal 'kidding,' abuse, or harassment; (2) pressure for sexual activity or favors; (3) repeated remarks to a pe rson with sexual or demeaning implications; (4) use of obscene or sexually suggestive language; (5) making obscene or sexually suggestive gestures, movements or body motions; (6) posting or exhibiting of sexually explicit materials; (7) unwelcome touching, such as patting, pinching or continued brushing against another's body." Both the principal and B.B.'s first period classroom teacher testified that a copy of the student handbook, containing the code of conduct was given to every student on the first day of school.

At the superintendent's hearing, the complaining student witness provided unrefuted testimony that B.B. physically forced her to engage in a sexual act over her objection and that she ran from the scene as soon as she was able to free herself. Another student corroborated this account by testifying that she observed the girl running down the hallway seeming "really upset," looking "like she had been crying," and "different than she was when we were hanging out with her" just minutes earlier. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036). I find no basis to substitute my judgment in this case.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of D.G., 43 Ed Dept Rep 299, Decision No. 15,001). The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner's judgment for that of the board (Appeal of S.G. and J.G., 44 Ed Dept Rep 268, Decision No. 15,170; Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146). In light of the seriousness of the student's conduct, I cannot conclude that a suspension of one year was unreasonable (seeAppeal of D.D., 40 Ed Dept Rep 606, Decision No. 14,567; Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 127, Decision No. 14,192).

Based upon the totality of the record before me and the seriousness of B.B.'s conduct, I do not find a basis to overturn respondent's finding of guilt or penalty determination.

In light of this disposition, I need not address the parties' recent correspondence concerning a related criminal proceeding. I note, however, that the standard of proof in a criminal proceeding is higher than that required in a proceeding pursuant to Education Law �3214.

THE APPEAL IS DISMISSED.

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