Appeal of S.K., on behalf of his son J.K., from action of the Board of Education of the Kings Park Central School District regarding student discipline.

Decision No. 17,031

(January 24, 2017)

Ingerman Smith, LLP, attorneys for respondent, Noah Walker, Esq., of counsel

Stewart Lee Karlin, P.C., attorneys for petitioner, Stewart Lee Karlin, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Kings Park Central School District (“respondent”) affirming the suspension of petitioner’s son, J.K.  The appeal must be sustained in part. 

J.K. attended kindergarten at Fort Salonga Elementary School during the 2010-2011 school year.  On March 28, 2011, J.K. was involved in an altercation at the school.  According to the record, J.K. placed his hands around another student’s (“victim”) neck during class.  The victim reported the incident to the classroom teacher who asked the children about the incident and then reported the incident to the principal.  Upon receiving notice of the incident, the principal asked the boys what happened and the victim stated that J.K. put his hands around the victim’s neck and squeezed and J.K. admitted doing so.  J.K. informed the principal that the reason for his actions was because the victim had hit the back of J.K.’s heel, which J.K. conceded may have been an accident.  The principal sent the victim to the nurse’s office where a photograph was taken of his neck.  The principal called J.K.’s mother, who indicated that she would pick J.K. up from school.  

The principal then typed up a disciplinary letter stating that J.K. would be suspended for five days, requesting a superintendent’s hearing due to the seriousness of the matter and offering J.K.’s parents the opportunity to meet for an informal conference.  That letter was presented to J.K.’s mother on March 28, 2011 when she came to pick J.K. up; however, the principal admits that the letter was erroneously dated March 6, 2011.  Upon realizing the error, the principal had another letter drafted by her secretary with the corrected date of March 28, 2011 and this letter was subsequently mailed to J.K.’s parents on March 30, 2011.  An informal conference was held on March 29, 2011.

By letter dated March 29, 2011, which is marked “HAND DELIVERED,” the superintendent informed petitioner of the superintendent’s two charges against J.K., and scheduled a superintendent’s hearing for April 1, 2011.  The first charge alleged that J.K. “was insubordinate, disorderly and/or conducted himself in such a manner as to endanger the health, safety and welfare of others in that he was involved in a physical altercation with another student.”  The second charge was identical to the first, except that it added the allegation that the conduct “caused physical injury to another student.” 

At the hearing held on April 1, 2011, the superintendent of schools presided as hearing officer and petitioner and J.K. were accompanied by their counsel. Following testimony from all parties, the hearing officer concluded that there was sufficient and substantial evidence to sustain the charges against J.K. In addition, the hearing officer made the determination that further discipline was appropriate due to the seriousness of the charges and J.K.’s behavioral history and that J.K. would be suspended from April 7, 2011 through April 29, 2011, a period of approximately 13 instructional days, taking into account respondent’s spring recess which ran from April 19 through April 22, 2011.  Respondent alleges that the building principal and superintendent were told that petitioner had a family vacation planned from April 7^th to April 22^nd, so that J.K. only served an additional eight days of suspension time.  Petitioner denies that he informed either the principal or the superintendent of the family vacation plan, but admits that he notified the tutor assigned to his son of the vacation on April 16, 2011, five days after the superintendent’s hearing.  Petitioner appealed to the board of education on April 28, 2011.  By letter dated May 5, 2011, respondent upheld both suspensions.  This appeal ensued.

Petitioner alleges that respondent failed to comply with Education Law §3214 and therefore challenges J.K.’s suspension, asserting that J.K.’s due process rights were violated due to lack of timely notice and respondent’s failure to inform petitioner of his right to question complaining witnesses at the informal conference.  Petitioner further contends that J.K. should not have been found guilty of the charged conduct and that both the short-term and long-term suspension of J.K. were excessive.  Petitioner seeks annulment of the suspensions and expungement of J.K.’s records.

Respondent argues that the appeal should be dismissed in its entirety on the grounds that petitioner’s due process rights under Education Law §3214 were not violated, there was sufficient evidence to sustain the charges, and the penalty imposed upon J.K. was not excessive.  Respondent also maintains that petitioner has failed to state a claim upon which relief can be granted and that petitioner has failed to provide clear and concise statements of his claims but instead includes matters neither on the record from the April 1, 2011 hearing nor related to the original charges against J.K.  Respondent further contends that the suspension of J.K. was not arbitrary or capricious and was in all respects proper.

I must first address the procedural issues.  It appears that petitioner asserts for the first time in the instant appeal that J.K.’s actions where the result of self-defense.  Attached to his petition, he includes two doctor’s notes, one dated March 29, 2011 and the other dated April 1, 2011, as exhibits purportedly evidencing J.K.’s alleged injuries as a result of the March 28, 2011 incident.  Respondent claims that these exhibits were not introduced at the April 1, 2011 hearing and that neither petitioner nor his attorney raised the self-defense claim during the hearing.  The record supports respondent’s contention and I decline to entertain petitioner’s belated attempt to raise this contention and introduce evidence that was not submitted at the superintendent’s hearing.  Issues not raised in the student disciplinary hearing or the appeal to respondent board may not be raised for the first time in an appeal to the Commissioner under Education Law §310 (Appeal of K.H., 49 Ed Dept Rep 210, Decision No. 16,004; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451; Appeal of A.R. and S.R., 40 id. 262, Decision No. 14,477).  Therefore, I will not address petitioner’s self-defense claim.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The suspension has been served and, therefore, the appeal is moot except to the extent petitioner seeks expungement of J.K.’s records (Appeal of L.L., 51 Ed Dept Rep, Decision No. 16,334; Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079; Appeal of a Student Alleged to Have a Disability, 49 id. 302, Decision No. 16,034).

I now turn to the merits.  In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823). 

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]). Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1] [4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, 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.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In this case, the parties do not dispute that petitioner did in fact receive written notice on March 28, 2011, the day of the incident; however, petitioner alleges and respondent admits that the written notice erroneously contained the wrong date and did not affirmatively inform petitioner of his right to question complaining witnesses.  Although I find that petitioner was made aware of his right to an informal conference, the written notice did not inform him of his right to question complaining witnesses.  This is insufficient to meet the requirements of Education Law §3214(3)(b)(1) and §100.2(l)(4) of the Commissioner’s regulations. 

Although the record indicates that petitioner had the opportunity to discuss the incident with the classroom teacher and the principal by telephone on March 29, 2011 and did in fact attend an informal conference held with the principal, “[h]olding an informal conference with the principal does not excuse the requirement for written notification to students and their parents ... explaining their rights to the conference and the opportunity to question complaining witnesses” prior to the suspension (Appeal of R.J and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).  In addition, it is insufficient to provide merely an opportunity to speak with the principal without the complaining witnesses present, or an opportunity to speak with complaining witnesses without the principal present (Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681; Appeal of P.D., 46 50, id. Decision No. 15,438).  While respondent asserts that the two complaining witnesses were the teacher and the principal, there is no evidence that the teacher participated in the informal conference.

On these facts, absent written notice of petitioner’s right to question complaining witnesses prior to the March 29, 2011 informal conference, petitioner was in effect denied his right to do so and I cannot infer a knowing waiver (Appeal of B.B., 49 Ed Dept Rep 253, Decision No. 16,017; Appeal of J.Z., 47 id. 243, Decision No. 15,681).  Therefore the five-day suspension from March 29, 2011 to April 7, 2011 must be annulled and expunged from the student’s record.

Turning to the student’s 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

At the April 1, 2011 hearing, the classroom teacher and principal testified for respondent.  Although both witnesses testified that they did not witness the incident, they did provide testimony as to what occurred based on the self-reporting of the students and J.K.’s admission to putting his hands around the victim’s neck and squeezing.  When a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of K.H., 49 Ed Dept Rep 210, Decision No. 16,004).  Petitioner had the opportunity to cross examine both witnesses and to call his own witnesses.  The record indicates that petitioner’s only witness at the hearing was the victim’s mother, who testified that, although she did not witness the actual incident nor could she clearly identify an alleged photograph of her son’s bruised neck, her son confirmed the version of events which the school had initially reported.  Petitioner presented no evidence that J.K. did not put his hands around the victim’s neck.  The photograph of the victim’s neck in the record indicates that the victim did suffer a physical injury, though the record indicates there was no serious or lasting injury.  Based on the record before me, I find no reason to substitute my judgment for that of the hearing officer regarding the credibility of witnesses, and find that there is competent and substantial evidence to sustain the charges against J.K.

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  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 of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of a Student Suspected of Having a Disability, 46 Ed Dept Rep 453, Decision No. 15,562; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337; Appeal of D.F.B., 43 id. 496, Decision No. 15,064).

In this case, I find no basis upon which to substitute my judgment regarding the penalty imposed.  Regardless of what may have prompted the misconduct, placing one’s hands around the neck of another student and squeezing is dangerous and unacceptable behavior, even for a student of J.K.’s young age.  The record indicates that after finding J.K. guilty on both charges, the hearing officer properly considered credible testimony from the assistant principal regarding J.K.’s anecdotal record which included numerous disciplinary matters, some of which involved physical altercations and difficulties with other students. On this record, I find that the penalty is not irrational or unreasonable, given the nature of J.K.’s conduct, coupled with the anecdotal record, and is within respondent’s discretion (see Appeal of M.W. and L.W., 50 Ed Dept Rep, Decision No. 16,238; Appeal of B.M., 48 id. 441, Decision No. 15,909; Judgment granted dismissing pet. to review sub nom Mirenburg v. Miller, et al., Sup. Ct., Albany Co., 11/27/2009, n.o.r.).[1]  Accordingly, I do not find that J.K.’s suspension or the penalty imposed by the superintendent is excessive or disproportionate with respect to the underlying charges.

As noted above, 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). On this record, I find that petitioner has failed to meet his burden and the appeal is therefore dismissed.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from J.K.’s record any reference to the suspension from March 29, 2011 to April 7, 2011.

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