Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by his parents, from action of the Board of Education of the North Babylon Union Free School District regarding student discipline.

Decision 16,063

(May 10, 2010)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

STEINER, Commissioner.--Petitioners appeal the decision of the Board of Education of the North Babylon Union Free School District (“respondent”) affirming the suspension of their son.  The appeal must be dismissed.

Petitioners’ son attended kindergarten in respondent’s district during the 2008-2009 school year.  By two letters dated March 31, 2009, the school principal notified petitioners that their son was suspended for five days for “intentionally push[ing] another student causing the need for medical attention at the hospital due to his physical injury.”  Petitioners were advised of their right to an informal conference at which they could question complaining witnesses and their right to home tutoring during the suspension.

By letter dated April 1, 2009, the principal confirmed that an informal conference occurred, that petitioners refused to accept the suspension letters and that subsequently a security officer delivered the letters to petitioners’ residence.

By letter also dated April 1, 2009, the superintendent notified petitioners that a superintendent’s hearing would be held on April 14, 2009 at which petitioners had the right to be represented by counsel and to question complaining witnesses.  The hearing was held on April 14, 2009 at which the school principal and petitioners’ son testified.  The hearing officer found petitioners’ son guilty of the charge and recommended that he be placed in an interim alternative educational setting for no more than 45 days pending a determination of the Committee on Special Education (“CSE”).[1]

By letter dated April 14, 2009, the superintendent informed petitioners that he adopted the recommendations of the hearing officer.  By letter dated April 15, 2009, petitioners appealed the superintendent’s decision to respondent, which upheld the decision.  This appeal ensued.  Petitioners’ request for interim relief was denied on July 9, 2009.

Petitioners argue that respondent denied their son due process, specifically that the incident/accident reports were concealed from them and that they were not permitted to question complaining witnesses.  Petitioners also contend that their son is not guilty -- that he tripped and did not push the other student intentionally.  Petitioners request that the suspension be expunged from their son’s school record and that he be provided “educational restitution” in the form of home-tutoring.

Respondent maintains that the petition must be dismissed for failure to join the superintendent as a necessary party and that petitioners have failed to establish a clear legal right to the relief requested.

Initially, I must address petitioners’ memorandum of law.  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 Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Therefore, I have not considered petitioners’ memorandum of law to the extent it raises new facts and arguments.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Petitioners have made no allegations that the superintendent acted improperly in conducting the hearing, nor do they seek specific relief against the superintendent.  Since the superintendent’s rights would not be adversely affected by a determination in favor of petitioners, he is not a necessary party to the appeal (Appeal of R.C., 49 Ed Dept Rep ___, Decision No. 16,023).

Petitioners allege that their son’s due process rights were violated because, at the hearing, they were not permitted to question complaining witnesses nor were they provided with the incident/accident reports. 

The superintendent’s April 1, 2009 letter advised petitioners of their rights under Education Law §3214, including the right to retain counsel, question complaining witnesses and present witnesses and other evidence on their son’s behalf.  Petitioners acknowledged that they received the letter in sufficient time to prepare for the hearing.  In addition, at the hearing petitioners were also advised of their right to present witnesses and documents on behalf of their son.  The record reflects that during the hearing petitioners requested that certain cafeteria/playground aides be called as witnesses.  However, it was determined that these workers had already left school for the day and were unavailable.  The hearing officer avers that while off the record he told petitioners that they could reconvene another day to question these aides and that petitioners declined the offer and told respondent’s attorney it was not necessary to do so.  Moreover, the record reflects that at the conclusion of the testimony respondent’s attorney told petitioners that they had the opportunity to present more testimony or witnesses and petitioners elected to proceed with their closing without calling additional witnesses.

Petitioners further contend that their son’s due process rights were violated because they did not receive a copy of the accident/incident report prior to the superintendent’s hearing and respondent did not introduce it into evidence at the hearing.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  There is no evidence that petitioners requested such document prior to the hearing and respondent was not obligated to introduce the report into evidence.  Thus, petitioners have failed to demonstrate that their son’s due process rights were violated.

Petitioners also contend that their son was not guilty.  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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

At the hearing, the principal testified that although the cafeteria/playground aides did not see the incident, the injured student reported being pushed by petitioners’ son.  The principal also testified that following the incident petitioners’ son admitted to her that he pushed the injured student and demonstrated to her how he had pushed the injured child.  The principal demonstrated this push at the hearing and the hearing officer found it to be best described as a “hard push.”  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of a Student with a Disability, 45 Ed Dept Rep 396, Decision No. 15,364).  Petitioners’ son testified that he had tripped and did not intentionally push the injured student.

The hearing officer found the principal’s testimony regarding the student’s admission that he pushed the other child, his statement that he did not want to get into trouble with his father, and the location of the injury to the other child (on the forehead) consistent with an intentional act on the part of petitioner’s son and inconsistent with petitioners’ theory that their son inadvertently tripped or put his hands out to avoid colliding with the injured child.  The hearing officer also found the testimony of petitioners’ son to be unresponsive, unintelligible and extracted with great effort.  The hearing officer avers that his conclusion that petitioners’ son intentionally pushed the injured child was based on the weight of all the credible evidence.

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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  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 P.D., 46 Ed Dept Rep 50, Decision No. 15,438; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).  On the record before me, there is no clear and convincing evidence that the hearing officer’s determination of credibility is inconsistent with the facts.

Accordingly, I cannot conclude that respondent’s decision was arbitrary, capricious or unreasonable.  To the contrary, the record demonstrates that it was entirely appropriate under the circumstances.

I have considered petitioners’ remaining arguments and find they have no merit.

THE APPEAL IS DISMISSED.

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