Appeal of T.S., on behalf of her daughter V.S., from action of the Board of Education of the Williamsville Central School District regarding student discipline.

Decision No. 17,233

(October 27, 2017)

Housh Law Offices, attorneys for petitioner, Frank Housh, Esq., of counsel

Hodgson Russ LLP, attorneys for respondent, Andrew Freedman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Williamsville Central School District (“respondent”) to suspend her daughter V.S. (“the student”).  The appeal must be sustained in part.

During the 2011-2012 school year, the student attended high school in respondent’s district.  On September 22 of that school year, the student attended a homecoming dance held by the school.  At the dance, some students, including the student who is the subject of this appeal, allegedly shouted disparaging remarks regarding a classmate who had committed suicide four days earlier.  One such remark was a statement that the speaker was “glad” the classmate was dead.  Many students attending the dance overheard these remarks, including the sister of the deceased student.

By letter dated September 27, the principal advised petitioner and her husband that she was suspending the student for five days based upon her alleged conduct at the September 22 dance.

A superintendent’s hearing, presided over by a hearing officer, was held over several days in October.[1]  On October 21, the hearing officer issued a recommendation that the student be found guilty of engaging in “disorderly” conduct at a school function.  The hearing officer based his determination of guilt on, among other things, the student’s anecdotal record, which included prior suspensions.  The hearing officer also found that the student was not a credible witness based upon the testimony of three witnesses which, as further explained below, is not part of the hearing record in this appeal.  As a penalty, the hearing officer recommended that the student be suspended for the remainder of the school year.

On October 26, the superintendent adopted the hearing officer’s recommendations with respect to the student’s guilt and the proposed penalty. Petitioner appealed to respondent, which considered her appeal on March 6, 2012.[2]  By letter dated March 12, 2012, respondent informed petitioner that it had upheld the superintendent’s determination.  This appeal ensued.

Petitioner contends that the district’s case was “implausible on its face” because its witnesses contradicted themselves and one another; that the district was permitted to present testimony about the student’s character which was unrelated to the charges; and that respondent considered an incomplete record on appeal from the superintendent’s decision.  Petitioner specifically alleges that the testimony of the three witnesses, which respondent “lost” after the hearing, was critical to petitioner’s case.  Petitioner requests reversal of the superintendent’s decision and expungement of the student’s suspension from her record. 

Respondent alleges that the petition should be dismissed because petitioner failed to serve it with a copy of the affidavit of verification accompanying the petition as well as the notice of petition.  Respondent further contends that the district maintained a proper record of the hearing and that any “inadequacies” in the record did not affect the superintendent’s finding of guilt or his decision regarding the imposed penalty.  Respondent also maintains that the decision to suspend the student was based on competent and substantial evidence.  Respondent argues that petitioner’s appeal is based “solely” on the hearing officer’s credibility findings, and that the Commissioner cannot substitute her judgment as to these findings unless they are contradicted by other evidence in the record.

I must address several procedural matters.  First, section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  In this case, the copy of the petition filed with my Office of Counsel contained an affidavit of verification.  Respondent asserts that it did not receive a copy of the verification with the petition.  While petitioner should have included a copy of the verification with the papers served on respondent, I decline to dismiss the petition on this basis because the copy of the petition received by my Office of Counsel was verified, respondent received the petition and served a timely answer (see e.g. Appeal of Czerepak, 31 Ed Dept Rep 448, Decision No. 12,695).

Second, respondent asserts that it was not served with a copy of the notice of petition.  Although respondent claims it did not receive the notice, I decline to dismiss the petition since, as with the affidavit of verification, the copy of the papers served on my Office of Counsel contained the requisite notice of petition, respondent received the petition and served a timely answer.  Additionally, respondent does not allege that it was unaware of the information contained in the notice of petition nor that it has suffered any prejudice as a result of this defect.  Therefore, I decline to dismiss the petition for failure to serve the notice of petition on respondent (Appeal of Cauley, 34 Ed Dept Rep 443, Decision No. 13,376).

Petitioner’s challenge to the student’s suspension must be dismissed as moot.  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).  Here, the petition was filed in April 2012, and the 2011-2012 school year ended shortly thereafter.  Because the entirety of the student’s suspension has been served, petitioner’s challenge to the appropriateness of the penalty is moot.  However, petitioner also seeks expungement of the suspension from the student’s record, and it is well-settled that an appeal will not be dismissed as moot to the extent that a petitioner seeks expungement of a disciplinary action from a student’s record (Appeal of D.F. and N.F., 56 Ed Dept Rep, Decision No. 17,026; Appeal of E.B. and F.B., 53 id., Decision No. 16,545; Appeal of M.W. and L.W., 50 id., Decision No. 16,238).

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). 

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). 

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). 

Here, the record reveals two errors which, considered together, warrant expungement of the student’s suspension from her record.  Education Law §3214(3)(c) provides in pertinent part:

A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record.... An appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.

Where a hearing has been held, the board of education may not properly decide an appeal from a decision suspending a student unless it reviews the entire record of the hearing (Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581; Appeal of A.R., 43 id. 284, Decision No. 14,996; Appeal of Muldoon, 41 id. 4, Decision No. 14,592; Matter of Corbett, 12 id. 184, Decision No. 8,599; Matter of Taylor, 10 id. 95, Decision No. 8,217).  An intelligible record of the hearing must be maintained in order to permit a meaningful review (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,434; Appeal of A.G., 41 id. 262, Decision No. 14,681).

As noted above, the student’s alleged remark occurred at a school dance where loud music was blaring.  Moreover, no adults heard the remark.  Therefore, the student’s guilt rested entirely upon the credibility of the student and the other student witnesses who allegedly heard or did not hear the remark.  Three student witnesses testified at the superintendent’s hearing that they heard the student make the remark, while three other student witnesses, including the student, testified that no such remark was made.  The two friends who corroborated the student’s account were with her for the entire or vast majority of the evening and, thus, would have been likely to have heard any such remark.[3]

The hearing officer resolved this conflicting testimony by finding that the student was not a credible witness.  The hearing officer also identified two discrepancies based upon testimony from three witnesses, a police officer and two student witnesses.  First, despite the student’s claim at the hearing that she had never used an anti-gay slur, the hearing officer found that the student had voluntarily told a police officer who investigated the incident that she may have “said something like” an anti-gay slur she was accused of saying on September 22 in a prior communication with the deceased student while communicating with him on Facebook.  Second, two student witnesses testified that they had heard the student use an anti-gay slur to the deceased student on a previous occasion.  In a footnote, the hearing officer further explained that he deemed one of these student witnesses credible “notwithstanding her testimony on cross examination where she appear[ed] to recognize the possibility that someone other than [the student] may have made the statement.”

All of the above testimony which formed the basis of the hearing officer’s credibility determinations is now, as the district puts it, “lost.”  Petitioner further asserts that this testimony became lost sometime after the hearing such that it was not available to respondent when it considered petitioner’s appeal.  Counsel for respondent, in its answer, evades this issue by stating that “the record before the Board of Education was adequate and proper for review.”  I find, therefore, that respondent did not have access to the testimony of these witnesses, and that this prohibited a meaningful review of the student’s suspension (see Appeal of A.R., 43 Ed Dept Rep 284, Decision No. 14,996).  While the district argues that the witnesses were merely “rebuttal” witnesses, the label attached to these witnesses is immaterial; the substance of the witnesses’ testimony is what is relevant.  Unlike Appeals of T.W. and D.D. (46 Ed Dept Rep 154, Decision 15,472) and Appeal of A.G. (41 id. 262, Decision No. 14,681) cited by respondent, the testimony here was central to the hearing officer’s reasoning in choosing to credit one party’s version of the dispute over the other.  Therefore, I find that respondent was not able to assess the validity of the hearing officer’s credibility determinations, which were crucial to a finding of guilt. 

While I agree with respondent that credibility determinations are generally entitled to deference, such deference is not warranted here where the hearing officer deemed the student credible based on facts in the hearing record which were not made available to respondent or submitted with this appeal.  Therefore, review of this evidence is necessary to determine whether it, in fact, supported the hearing officer’s credibility determination and, consequently, his finding of guilt.

Additionally, the student’s anecdotal record was inappropriately entered during the hearing before the hearing officer determined the student’s guilt.  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, the student’s anecdotal record was entered as evidence during the hearing, prior to a finding of the student’s guilt.  The student’s anecdotal record was substantial and contained over 70 disciplinary incidents resulting in various penalties, including suspension.  In his decision, the hearing officer specifically noted that two prior incidents “show[ed] a willingness [by the student] to engage in verbal and physical confrontations.”  There is no evidence in the record that the hearing officer attempted to separate the issue of the student’s guilt from the issue of whether her prior disciplinary infractions warranted a particular penalty.  Under these circumstances, the premature introduction of the student’s anecdotal record was highly prejudicial (Appeal of G. and D.S., 39 Ed Dept Rep 755, Decision No. 14,370).  Therefore, based on the premature admission of the student’s anecdotal record as well as the incomplete record considered by respondent, I find that expungement of the student’s suspension is warranted. 

Given this disposition, I need not address the parties’ remaining contentions.  However, nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s long-term suspension of V.S. through the end of the 2011-2012 school year be expunged from her record.

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