Appeal of N.C. and M.C., on behalf of their daughter O.C., from action of the Board of Education of the Livonia Central School District, Superintendent Matthew Cole, and Vice Principal John Gammon, regarding student discipline.

Decision No. 17,056

(March 6, 2017)

Sean T. Hanna, Esq., attorney for petitioners

The Law Firm of Frank W. Miller, attorneys for respondents, John A. Sickinger, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Livonia Central School District (“respondent board”), the Livonia high school, Vice Principal John Gammon and Superintendent Matthew Cole (collectively, “respondents”) to suspend their daughter from extracurricular events and activities.  The appeal must be dismissed.

During the 2013–2014 School year, petitioners and O.C. travelled to Middletown, New York, to attend a Livonia high school soccer game.  Several other students and their families also travelled to this game, although the trip was not organized or sponsored by respondents.  Following the trip, a high school teacher reported to respondent Gammon that he had heard students discussing the consumption of alcohol while on this trip.  Respondent Gammon informed the School Resource Officer, Sheriff’s Deputy Joshua Monster (“Officer Monster”), of the conversation overheard by the teacher.  An investigation was conducted by Officer Monster which involved the questioning of several students, including O.C.  While the parties disagree as to the facts and circumstances surrounding the investigation, the record indicates that O.C. ultimately received a ten-week social suspension, commencing on December 10, 2013, during which she was not permitted to participate in any non-credit bearing extracurricular events or activities.

Subsequently, petitioners appealed the suspension to the superintendent, respondent Cole, who, in a letter dated January 20, 2014, found the suspension to be reasonable and therefore declined to reverse respondent Gammon’s decision.  On January 22, 2014, petitioners appealed the superintendent’s decision to the board, which upheld the superintendent’s decision.  Petitioners were notified of the board’s action in a letter from the board president dated May 10, 2014.  This appeal ensued.

Petitioners claim that respondents violated district policies 7330 and 7420 by inviting local law enforcement officials onto school premises and allowing them to question O.C. without a warrant or the consent of her parents. Petitioners also contend that respondents’ actions violated various sections of the district’s code of conduct (“code”), which requires that the school: attempt to notify parents prior to questioning a student, prevent questioning if the parent(s) cannot be reached, ensure that the school principal or another designee be present to supervise any questioning, and advise  students of their rights. Petitioners further claim that they were not afforded an opportunity to meet with district officials prior to the imposition of the suspension, in violation of the code.  Finally, petitioners claim that the Livingston County Sheriff’s Department lacked jurisdiction to investigate the matter as the incident occurred out-of-state and that their procedural and substantive due process rights were violated.

Respondents contend that O.C.’s suspension was reasonable considering the circumstances and that any violation of district policies was inadvertent and was remedied immediately by respondents.  Respondents further argue that petitioners were afforded all the due process required by law, as they were given an opportunity to – and in fact did - appeal to the superintendent and to the board. Additionally, respondents argue that Officer Monster, as a School Resource Officer, was not invited onto school premises to interrogate students; but rather, as part of his role as School Resource Officer, he appropriately investigated the matter once it was brought to his attention.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

In this appeal, petitioners challenge the action taken by respondent board on or about March 10, 2014 in upholding O.C.’s social suspension on appeal and seek expungement of the social suspension from O.C.’s record.  Petitioners were notified of the board’s determination by letter dated March 2014 and, affording petitioners the usual five days for mailing, petitioners had until April 14, 2014 to commence the appeal.  The appeal was commenced by service of the petition on May 6, 2014, more than 30 days after petitioners’ receipt of the determination.  Petitioners have not offered any excuse for the delay.  Therefore, good cause has not been shown for the delay, and the appeal is dismissed as untimely.

Even if the appeal were not dismissed on procedural ground, it would be dismissed on the merits.

In Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674, the Commissioner dismissed an appeal by parents of another student from respondents’ actions in imposing a ten-week social suspension arising out of the same incident.  Most of the petitioners’ claims in this appeal are identical to those raised in Appeal of R.C. and D.C., and for the reasons stated in that decision, as discussed more fully below, I find that they have no merit.

In-school suspensions and suspensions from extracurricular activities are not governed by Education Law §3214 and do not require a full hearing (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598).  Procedures governing in-school suspensions and suspensions from extracurricular privileges need only be fair and give students and parents an opportunity to discuss the conduct being reviewed with the person or body authorized to impose the discipline (Appeal of D.K., 48 Ed Dept Rep 276, Decision No. 15,857; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of G.H.L., 46 id. 571, Decision No. 15,598). 

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).  The burden is on petitioners to allege and prove facts upon which relief may be granted, not on respondents to rebut conclusory allegations set forth in the petition (Appeal of Wilson, 41 Ed Dept Rep 196, Decision No. 14,663; Appeal of Finkel, 41 id. 74, Decision No. 14,619; Appeal of Keiling, 25 id. 122, Decision No. 11,517).

Petitioners allege that respondents violated a provision in code (identified as page 8, letter B) by failing to provide petitioners with reasonable opportunity for an informal conference prior to imposing a suspension from participation in athletics, extracurricular activities or social events.  However, respondents’ athletic director attests in an affidavit that he met with O.C. and her father, petitioner M.C., on December 10, 2013 to discuss the proposed social suspension prior to commencement of the suspension at the end of the school day.  In addition, assistant principal Gammon attests that in the late morning or early afternoon on December 10, 2013, he had a telephone conversation with the mother of another student suspended as a result of the incident to discuss the impending social suspensions in which petitioner N.C. participated.  He further attests that petitioner N.C. did not request a meeting during that call.  Petitioners also availed themselves of the opportunity to appeal to both the superintendent and the board prior to bringing the instant appeal.  The record further indicates that, as part of the appeal process, petitioners met with the superintendent.  As noted above, in the case of a suspension from extracurricular privileges, only minimal due process – fairness and an opportunity to discuss – are required.  On the record before me, I find that petitioners have failed to meet their burden of proving that respondents failed to provide them with a reasonable opportunity for a conference in violation of the district’s code of conduct.  I further find that the procedures in place were fair and sufficient for a suspension from extracurricular privileges and that petitioners were afforded adequate due process. 

As did the petitioners in Appeal of R.C. and D.C., petitioners here claim that respondents violated district policies 7330 (“Searches and Interrogations of Students”) and 7420 (“Athletics and Extracurricular Activities”), by inviting local law enforcement officials onto school premises and allowing them to question O.C. without a warrant or the consent of her parents.  Petitioners also claim that respondents violated various sections of the code, which require that the school attempt to notify parents prior to questioning a student and prevent questioning if the parent(s) cannot be reached, that the school principal or another designee be present to supervise any questioning, and that students be advised of their rights under the law.

The superintendent’s January 20, 2014 letter indicates that Officer Monster’s “failure to ask [petitioners] to be present for [O.C.’s] interview was inconsistent with Board Policy 7330....”  Board Policy 7330 states, in pertinent part:

Generally, police authorities may only interview students on school premises without the permission of the parent/guardian in situations where a warrant has been issued for the student’s arrest (or removal)....  Whenever police wish to question a student on school premises, administration will attempt to notify the student’s parent/guardian.

The superintendent further explains that, as a result of such failure, O.C.’s interview was not considered as part of the determination to suspend her and that “information regarding her presence in a hotel room where underage drinking was occurring is independently verified through reports of others in the room who were interviewed in accordance with the Board Policy 7330.  As such, any information [O.C.] provided to Officer Monster is not necessary to my ultimate determination and will not be considered.”

In this appeal, the relief requested by petitioners is that O.C.’s suspension from extracurricular activities be expunged.  However, petitioners have not carried their burden of establishing that expungement of the extracurricular suspension is the appropriate remedy for respondents’ admitted noncompliance with policy 7330 and the code.  Since it appears from the record that respondents disregarded Officer Monster’s interview and had an independent basis for imposing the suspension from extracurricular privileges, I find that respondents’ violation of policy 7330 does not warrant expungement of the suspension (Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674).

Petitioners also claim that respondents failed to comply with policy 7420, which states, in pertinent part:

When notified of alleged student use of alcohol or drugs outside of school or school events:  District personnel will refer the matter to local law enforcement.  District personnel will use only local law enforcement reports or eye witness accounts of a responsible adult to enact the consequences of the policy.  If the alleged student use took place at school or at a school related event off campus, school personnel will investigate like any other Code of Conduct issue (emphasis in original).

Petitioners allege that respondents improperly imposed the extracurricular suspension on O.C. without a report from “local law enforcement” or the eye-witness account of a responsible adult.  Petitioners claim, inter alia, that Officer Monster was not “local law enforcement” because the incident occurred out-of-state, and that because no adult eye-witness account existed, respondents asked Officer Monster to “manufacture” a police report for their “non-law enforcement objectives” of suspending O.C.

Respondents deny these allegations and claim that they acted in accordance with policy 7420 by referring the alleged student use of alcohol outside of school or school events to Officer Monster.  According to respondents, they did not direct the investigation by Officer Monster, nor was he invited onto school premises because, as the School Resource Officer, he was assigned to the school on a daily basis and maintained an office in the building (see Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; judgment granted dismissing petition, Bobolia v. Bd. of Educ., Hendrick Hudson CSD, et al., Sup. Ct., Albany Co., July 15, 2009 [parents’ appeal of short-term suspension on the grounds that the school resource officer, a State Trooper, questioned and searched their son in violation of respondent’s code of conduct was dismissed where the record indicated that the questioning and search of the student by the assistant principal in the presence of the school resource officer was conducted as part of a routine student discipline procedure, not a formal police investigation or interrogation by a police official who entered school property for that purpose]).  Respondents further claim that, as the School Resource Officer, Officer Monster is also permitted by policy 7330 to question students under such circumstances. 

I note that the record indicates that Officer Monster serves the district as a School Resource Officer who, as a result of his investigation, produced a “New York State Incident Report” as the “Reporting Officer” of the Livingston County Sheriff’s Office.  Thus, it appears from the record that he is both a School Resource Officer and a local law enforcement officer, which is common practice.  On this record, therefore, I cannot conclude that respondents’ use of the report produced by Officer Monster following his investigation, which was conducted pursuant to a referral as required by policy 7420, actually violated policy 7420 (Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674). 

Additionally, based on the record as a whole, petitioners fail to produce sufficient evidence to establish that respondents’ finding that O.C. was present in a hotel room in which students were consuming alcohol, in violation of policy 7420, is arbitrary and capricious.  Petitioners’ primary contention in this regard appears to be that respondents’ decision was improperly based on the “second hand, unsworn, hearsay” accounts of minors.  However, I note that, even in the context of an administrative hearing, which as described above was not required under the circumstances presented here, 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).  Accordingly, on the record before me, I find no basis upon which to substitute my judgment for that of respondents (Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674).

With respect to petitioners’ claim that the Livingston County Sheriff’s Department lacked jurisdiction to investigate the matter, I note that, as stated above, policy 7420 requires a referral to local law enforcement where student use of alcohol or drugs outside of school or school events is alleged.  The policy also requires that the district use only “local law enforcement reports or eye witness accounts of a responsible adult to enact the consequences” of the policy.  Petitioners argue that the term “local law enforcement” as used policy 7420 “clearly refers to authorities local to the incident – i.e., the only law enforcement officials with the authority to investigate the incident, make an arrest, and generate a police report for prosecution purposes” (emphasis in original).  I disagree.  Contrary to petitioners’ conclusory assertions, there is no language in policy 7420 requiring that the report be issued by local law enforcement in the jurisdiction in which the incident occurred, nor does the policy require that the report be issued by local law enforcement with criminal jurisdiction to investigate and prosecute the incident.  Therefore, to the extent petitioners attempt to argue that respondents violated policy 7420 because the Livingston County Sheriff’s Department lacked criminal jurisdiction over the matter, I find that such argument lacks merit and, in any event, is irrelevant to the instant appeal (Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674).

On this record, policy 7420 appears to be intended to ensure that sufficiently reliable evidence exists before the policy is enforced against students.  Respondents’ interpretation of its policy – that the Livingston County Sheriff’s Department constitutes “local law enforcement” – is rational and reasonable and I find no basis on this record to disturb it (see Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674; Appeal of Barbara D. and James D., Jr., 34 id. 118, Decision No. 13,252).  To the extent that petitioners attempt raise constitutional issues in this regard, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of R.C. and D.C., 54 Ed Dept Rep, Decision No. 16,674; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

I also note that prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeal of W.T., 46 Ed Dept Rep 363, Decision No. 15,534; Appeal of C.R., 45 id. 303, Decision No. 15,330) and have upheld suspensions involving conduct that occurred outside of the state (see e.g., Appeals of Doris J. and Irene S., 31 Ed Dept Rep 153, Decision No. 12,602 [upholding students’ exclusion from graduation exercises based on conduct that occurred during class trip to Canada]). 

Although the appeal must be dismissed on procedural grounds, I note that the record in this case indicates that confusion exists regarding respondents’ student disciplinary policies and practices, and as the Commissioner did in Appeal of R.C and D.C., I encourage respondents to clarify district policies and practices and communications with parents to reduce the likelihood of such confusion. I also remind respondents of their obligation to apply such policies in an objective and consistent manner and to ensure that determinations in student disciplinary proceedings are based on properly introduced and accepted documents and evidence, consistent with all applicable laws, regulations and policies.

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

THE APPEAL IS DISMISSED.

END OF FILE