Appeal of P.D., on behalf of her son D.D., from action of the Board of Education of the East Hampton Union Free School District regarding student discipline.

 

Decision No. 15,438

 

(August 7, 2006)

 

Kuntz, Spagnuolo, Scapoli & Schiro, P.C., attorneys for petitioner, Thomas Scapoli, Esq., of counsel

 

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the suspension of her son, D.D., by the Board of Education of the East Hampton Union Free School District (“respondent”).  The appeal must be sustained in part.

On Saturday, April 24, 2004, a Hispanic student who attended East Hampton High School was killed in a motorcycle accident.  The following Monday, D.D. whispered a racially biased comment in reference to the death of that student, and other Hispanics in general, to a fellow student, D.A., who told other students in the school that D.D. had made the comment.  According to D.D., however, he did not originate the comment but merely related to D.A. what he overheard in the hall.  After a confrontation arose between D.D. and other students who accused him of making the comment, the high school principal contacted petitioner and advised her that the assistant principal and a police officer would be escorting D.D. home from school.  Later that afternoon, petitioner’s husband (D.D.’s stepfather) went to the high school to meet with the principal.  D.D. did not attend school on April 27, 28 or 29, 2004.  On April 29, 2004, petitioner and her husband met with the principal, an assistant principal and a guidance counselor.

By hand-delivered letter dated Friday, April 30, 2004, the principal suspended D.D. for five days, from May 3 through May 7, 2004, and informed petitioner that a superintendent’s hearing might be convened.  The letter stated that D.D. violated the high school’s Code of Conduct by making the racial comment and that petitioner and D.D. were entitled to an informal conference to discuss the suspension if requested within 24 hours.  It also stated that “per our phone conversation on Monday, April 26th and meeting on Thursday April 29^th, it was in the interest of [D.D.]’s safety that he remain home pending the results of the investigation.”  Petitioner states that on Saturday, May 1, she left a message on the principal’s voice mail requesting a conference.

By letter dated May 3, 2004, the superintendent notified petitioner of a hearing scheduled for May 7, 2004.  At the hearing, D.A., another student, the principal and D.D. testified.  By letter dated May 10, 2004, the superintendent notified petitioner that he found D.D. guilty of the charge and suspended him from school for the remainder of the 2003-2004 school year.  Petitioner appealed the superintendent’s decision to respondent.  By letter dated May 27, 2004, the superintendent notified petitioner that on May 18, 2004, respondent had reviewed the record of the superintendent’s hearing and had upheld his determination and penalty.  This appeal ensued.

Petitioner contends that D.D. was suspended and not permitted to attend school on April 27, 28 and 29, 2004 even though he did not receive notice of the suspension, was not charged with misconduct and did not receive a due process hearing.  Petitioner also states that D.D. was not offered alternative instruction during this time.  With respect to the five-day suspension from May 3 through May 7, petitioner contends that the notice was defective and that the district failed to provide her and D.D. with an informal conference with the principal and an opportunity to confront the complaining witnesses prior to the suspension.

With respect to the long-term suspension, petitioner asserts that D.D. was denied a fair hearing because the superintendent was present when the school attorney interviewed the witnesses prior to the hearing.  Petitioner also contends that the district failed to prove that D.D. committed the charged conduct.  Finally, petitioner asserts that D.D. was denied the right to appeal the superintendent’s determination to respondent because the recording of the hearing was inaudible.  Petitioner requests that the suspension be annulled and expunged from D.D.’s records.

Respondent maintains that it acted properly in all respects.  It asserts that petitioner voluntarily kept D.D. home in the days immediately following the incident.  It also asserts that the April 30 written notice of the suspension was legally sufficient, that petitioner withdrew her request for an informal conference with the principal at which he would have informed her of her right to question the complaining witness, and that all claims regarding D.D.’s five-day suspension and the informal conference are untimely.  Respondent contends that D.D. received all his due process rights at the superintendent’s hearing, and denies that the superintendent was present while the witnesses were interviewed or that the hearing record was inaudible.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent contends that petitioner’s claims regarding D.D.’s five-day suspension from May 3 through 7, 2004 are untimely because the petition is dated June 24, 2004, more than 30 days after the suspension.

In this case, D.D.’s five-day suspension was followed by a superintendent’s hearing, from which petitioner had not only the right but the requirement to exhaust her administrative remedy by appealing to respondent before commencing an appeal (Education Law �3214[3][c][1]; Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of D.C., 41 id. 190, Decision No. 14,661).  The underlying charges for both the five-day and the long term suspensions were the same.  Accordingly, I will not dismiss the appeal as untimely.

Petitioner contends that D.D. was improperly suspended without notice for three days immediately following the incident.  Respondent asserts that the principal informed petitioner on April 26 that he was sending D.D. home for his own safety.  Respondent further asserts that D.D. was not suspended at that time, that petitioner voluntarily kept D.D. at home and that he was marked absent on those days.  In her reply, petitioner states that the principal insisted that D.D. remain home and that she acquiesced.  She also states that she and her husband actively tried to resolve the situation with the principal during those days in order to allow D.D. to return to school but were unsuccessful.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  The record before me does not indicate that D.D. was suspended at that time.  Accordingly, this claim must be dismissed.

With respect to the five-day suspension, petitioner argues that the notice was defective in that it did not inform her of the opportunity to confront complaining witnesses at the informal conference.  Respondent argues that there is no requirement that the written notice include this information and that the petitioner would have been extended that right had there been an informal conference.

When a principal proposes to suspend a student from attendance for a period of five days or less, �100.2(l)(4) of the Commissioner’s regulations requires that the written notice:

. . . provide a description of the incident(s) for which suspension is proposed and shall inform the parents . . . of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b).

The purpose of this regulation is to ensure that parents of a student suspended for five days or less are made aware of the statutory right provided in Education Law �3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).  It is insufficient to provide merely an opportunity to speak to the principal without the complaining witnesses present, or an opportunity to speak to the complaining witnesses without the principal present (Appeal of B.C. and A.C., 42 Ed Dept Rep 395, Decision No. 14,891; Appeal of a Student Suspected of Having a Disability, 40 id. 542, Decision No. 14,552; Appeal of a Student with a Disability, 38 �id. 378, Decision No. 14,059; Appeal of Milano, 37 id. 472, Decision No. 13,908).

In this case, the principal’s April 30 letter did not meet the requirements described above.  It failed to inform petitioner that she could request an opportunity to question complaining witnesses (Appeal of M.S., 44 Ed Dept Rep 478, Decision No. 15,237; Appeal of a Student Suspected of Having a Disability, 44 id. 475, Decision No. 15,236).  Accordingly, the five-day suspension must be annulled and expunged from D.D.’s record.

As to the long-term suspension, 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 the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of M.P., 44 id. 132, Decision No. 15,123).

Petitioner claims that respondent could not review the record on appeal because the hearing record is inaudible.  An intelligible record of the hearing must be maintained in order to permit a meaningful review (Education Law �3214[3][c]; Appeal of A.G., 41 Ed Dept Rep 262, Decision No. 14,681; Matter of Labriola, 20 id. 74, Decision No. 10,321).  Both parties provided audiotapes of the hearing.  While the quality of the tapes is poor, and progressively worsens over the course of the hearing, I find they are sufficiently audible to hear the testimony of the four witnesses.  Thus, I find that respondent was able to sufficiently review the hearing record on appeal.

The tapes reveal that at the hearing, D.A., another student, the principal and D.D. testified under oath.  D.D. admitted that he made the comment to D.A., but consistently maintained that he had overheard the comment in the hallway and merely repeated it.  D.D. stated that at one point when administrators questioned D.A., he heard D.A. admit that he might have misheard or misunderstood D.D., but that D.A. later recanted.  D.A. admitted that he was the one who retold the comment to other students and attributed it to D.D., but denied that D.D. had prefaced the original statement by saying: “I heard someone say . . .” or words to that effect.  The other student witness admitted that she did not hear the exchange between D.D. and D.A.  In addition, the principal admitted that his investigation did not include any subsequent interviews with D.D. after the day of the incident and there were no written reports of any investigation to substantiate the charges.

With respect to findings of fact in matters involving the credibility of witnesses, I usually 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 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of M.P., 44 id. 132, Decision No. 15,123).  In this case, however, the superintendent’s determination consisted merely of one sentence: “After reviewing the facts and testimony of the Superintendent’s hearing held on Friday, May 7, 2004, I find [D.D.] guilty as charged.”  Notably, the superintendent failed to discuss any facts or testimony of the witnesses and his decision does not demonstrate that he addressed or weighed their credibility or demeanor.  I cannot, therefore, defer to the superintendent’s determination or assessment of witness credibility, and must instead determine whether there is sufficient and competent evidence that D.D. participated in the objectionable conduct as charged. 

With respect to the issue of proof, the evidence on the record is at best, equivocal, since D.D. and D.A.’s statements were directly contradictory.  Consequently, the case depends solely on their credibility and that of the other student.  In my assessment, the aural record revealed that D.D. consistently maintained his version of the events, both at the hearing and to the principal, whereas D.A.’s testimony and demeanor were not as straightforward.   Furthermore, the principal admitted there was no further investigation or report in close time proximity to the incident.  While I recognize the highly charged emotional atmosphere surrounding this event, and do not in any way condone the biased nature of the comment, under the circumstances of this case and the record before me, I am constrained to determine that the record does not contain sufficient and competent evidence that D.D. generated the offensive comment and thus engaged in the objectionable conduct as charged.  Therefore, the suspension must be annulled and expunged from D.D.’s record.

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

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent’s five-day suspension of petitioner’s son from May 3–7, 2004 be annulled and expunged from his record.

 

IT IS FURTHER ORDERED that respondent’s suspension of petitioner’s son from May 10, 2004 through the end of 2003-2004 school year be annulled and expunged from his record.

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