Appeal of J.J., on behalf of her son T.J., from action of the Board of Education of the Three Village Central School District regarding student discipline.

Decision No. 15,505

(December 22, 2006)

Jonathan C. Juliano, P.C., attorney for petitioner

Guercio and Guercio, Esqs., attorneys for respondent, Douglas A. Spencer, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Three Village Central School District (“respondent”) regarding discipline imposed upon her son.  The appeal must be sustained. 

On April 26, 2006, a smoke grenade was detonated at respondent’s Ward Melville High School, filled the building with dense smoke, and caused the principal to evacuate the building.  The following day, April 27, a student, S.M., after being contacted by a police officer, reported his observation of this event to two assistant principals.  The next day, April 28, petitioner’s son was brought to the office of the administrative dean, where S.M. was asked to identify him as the person who was responsible for the smoke grenade. 

By a letter dated May 10, 2006, the high school principal suspended petitioner’s son for five days, beginning May 10.  This letter was mailed on May 11, 2006, and received by petitioner on May 12, 2006.

On May 17, 2006, a superintendent’s hearing was conducted.  S.M. was the primary witness at the hearing, and the only witness who connected petitioner’s son to the incident.  At the close of the hearing, the hearing officer prepared his report, which found petitioner’s son guilty of igniting the smoke grenade, and recommended a one-year suspension.  The following day, May 19, 2006, respondent’s superintendent adopted the findings of fact and recommendations of the hearing officer, and suspended petitioner’s son until May 9, 2007.

Petitioner appealed the matter to respondent, which considered and reviewed the matter on June 13, 2006.  By letter dated June 16, 2006, respondent’s president notified petitioner that the superintendent’s determination had been upheld.

Petitioner contends that the original five-day suspension must be annulled and expunged because the notice of that suspension was untimely and failed to comply with the Commissioner’s regulations.  With respect to the long-term suspension, petitioner contends, among other things, that the evidence presented at the suspension hearing is insufficient to sustain the finding of guilt, and that the penalty is excessive.

Respondent generally denies petitioner’s claims and argues that both the short-term and long-term suspensions were proper, and that the one-year suspension was appropriate.  

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).

S.M. testified at the superintendent’s hearing that he saw a “kid” in a white shirt at the time of the incident from a distance of five feet.  This student was “standing against the wall and facing the wall.”  S.M. did not see the student light the smoke bomb, or see it in his hand.  He stated that he did not see the student’s face.  He testified at one point that he saw the student drop the bomb, but also said that when he first saw the device it was already on the floor.  He testified at another point that the bomb was five feet away from the student, but also testified that it fell “a couple of inches” from him.  He said that there were about 20 students in the hallway at the time.

It appears that on the evening of April 26, S.M. described the student to a police officer as wearing a white shirt and a white hat, and being approximately five feet eight inches or five feet nine inches tall.

On April 28, in the administrative dean’s office, S.M. was asked to identify T.J. as the student who ignited the smoke bomb.  The record contains no explanation as to how or why T.J. alone was brought to the office.  S.M. testified that the administrative dean “said they were going to bring a student down and if I thought it was him just to give a nod” (emphasis added).  He did so.

During the course of the hearing, both on direct examination and cross-examination, S.M. said that he was “pretty sure” that T.J. was the student who dropped the smoke bomb no less than eight times.  However, he also admitted on five other occasions that he was less than positive in his identification of T.J. as the person who ignited the device.

S.M. also admitted in the course of his testimony that, in a student body he estimated at 1800, he could think of three or four students who fit the description he gave to the police.  At one point he was asked: “Now, is it possible that any of those three or four kids could have done this?”  He responded: “Sure.”  He was further asked: “So, you can’t be positive that someone else might have dropped a smoke bomb, can you?”  He responded: “No.”

The classic discussion of substantial evidence by the New York Court of Appeals is found in 300 Gramatan Avenue Associates v. State Division of Human Rights (45 NY2d 176).  The court stated at pp. 180-181: “More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt . . .”  The court further stated, at pp. 181-182:

A court reviewing the substantiality of the evidence upon which an administrative agency has acted exercises a genuine judicial function and does not confirm a determination simply because it was made by such an agency (Matter of McCormack v National City Bank, 303 NY 5, 8-9).  In final analysis, substantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably — probatively and logically (cf. Matter of Di Nardo v. Monaghan, 282 App Div 5, 7, supra; Matter of Thomas v Codd, 51 AD2d 418, 420; Matter of Phinn v Kross, 8 AD2d 132, 137; 24 Carmody-Wait 2d, Proceeding Against Body or Officer, § 145:350).  Put a bit differently, “the reviewing court should review the whole record to determine whether there is a rational basis in it for the findings of fact supporting the agency’s decision” (McCormick Evidence [2d ed]  § 352, p 847; see Matter of Pell v Board of Educ., 34 NY2d 222, 231; Siegel, New York Practice [1978], § 560, p 783).

Upon a careful reading of the entire transcript in this matter, I find that the evidence produced fails this test.  Based on the transcript, I am not persuaded that T.J. was in fact the student in the white shirt, nor am I able to conclude that the student in the white shirt was the person who ignited and dropped the smoke bomb.  On this evidence, I am unable to find support for the conclusions reached by the hearing officer, superintendent, and respondent.

I consider the detonation of a smoke bomb leading to evacuation of an entire high school a very serious matter.  Indeed, a one-year suspension would be entirely appropriate in such a case.  However, in this particular case, I am unable to conclude that T.J. has been proven to be the perpetrator.  The quality and quantity of proof is simply insufficient.  There could have been additional proof outside this record (a criminal proceeding was pending at the time of the superintendent’s hearing), but my review can be based only on the record before me.

Based on the foregoing, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge all references to both suspensions from the records of T.J.

IT IS FURTHER ORDERED that T.J. be allowed to return to Ward Melville High School immediately.

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