Appeal of C.B., on behalf of her daughter N.B., from action of the Board of Education of the Liverpool Central School District and Richard N. Johns, Superintendent, regarding student discipline.[1]

Decision No. 17,272

(December 5, 2017)

Legal Services of Central New York, Inc., attorneys for petitioner, Crystal M. Doody, Esq., of counsel

Bond, Schoeneck & King, PLLC, attorneys for respondent, Christa R. Cook and David M. Ferrara, Esqs., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Liverpool Central School District (“respondent”) to impose discipline on her daughter, N.B. (“the student”).  The appeal must be sustained in part.

At all times relevant to this appeal, the student attended sixth grade at an elementary school within respondent’s district.  On February 16, 2012, the elementary school principal met with the school counselor.  According to the principal, the counselor was “upset” because “six or seven” students had reported to her that the student had made comments of a sexual nature.  The principal, seeking to corroborate the comments reported to the counselor, subsequently interviewed other students who had not spoken to the counselor.

On the following day, the principal went to the school’s sixth grade classrooms and asked the students to complete a writing assignment where they were asked to indicate “if there [had] been any bullying or intimidation going on.”  In response, certain students indicated that the student had made inappropriate comments.

In a “discipline referral” dated February 16, the principal indicated that the student was suspended for five days for the use of inappropriate language and threatening/harassing another student.  The letter indicated that a superintendent’s hearing would be convened on February 29.[2]

The hearing, presided over by a hearing officer, convened as scheduled.  In a written decision dated February 29, the hearing officer found the student guilty of the charged conduct and recommended that the student be suspended for the remainder of the school year.  The superintendent adopted the hearing officer’s recommendations regarding guilt and penalty on March 2.

In a letter dated March 22, petitioner appealed the superintendent’s decision to respondent.  Petitioner indicated that she was aware of respondent’s 10-day limitation for appeals of long-term suspensions but argued that her appeal was nevertheless timely because the superintendent’s determination was “postmarked March 9, 2012.”  In this letter, petitioner also requested a copy of the audio recording of the hearing.

In a letter dated April 5, respondent indicated that it would not consider petitioner’s appeal because it had not been received, pursuant to board policy, within 10 days of the superintendent’s determination.  Respondent noted that:

[e]ven assuming that you did not receive the letter until March 9, 2012 ([the principal] called you about the disciplinary hearing decision on March 1) the 10-day deadline for requesting an appeal would be the 23^rd of March.

In a letter dated April 16, an education advocate acting on petitioner’s behalf requested that respondent reconsider its April 5 decision rejecting petitioner’s appeal as untimely. 

In a letter dated April 26, counsel for petitioner renewed petitioner’s request, originally made on March 22, for an audio recording of the hearing.  Petitioner asserts that her counsel received an audio recording of the hearing on May 7.  This appeal ensued.  Petitioner’s request for interim relief was denied on May 24.

Petitioner contends that respondent’s policy requiring that appeals of long-term suspensions be filed with respondent within 10 days of a superintendent’s determination is inconsistent with due process.  Petitioner further argues that respondent failed to establish the student’s guilt by competent and substantial evidence because it did not call the reporting students or the school counselor as witnesses at the hearing.  Petitioner additionally asserts that respondent erred by failing to notify petitioner that it would consider the student’s anecdotal record, and that respondent improperly considered the student’s anecdotal record as evidence of her guilt.  Finally, petitioner argues that the penalty imposed was excessive under the circumstances.  Petitioner requests expungement of the student’s suspension and an order requiring respondent “to amend [its] policies and practices regarding suspensions to prevent future violations of the nature set forth herein.”

Respondent denies petitioner’s allegations and argues that it sufficiently established the student’s guilt at the hearing by competent and substantial evidence.  Respondent contends that the appeal is untimely as it was not commenced within 30 days of respondent’s determination.

First, I must address the issue of timeliness, which implicates petitioner’s challenge to respondent’s 10-day timeline for appeals of long-term suspensions.  The record reflects that respondent has adopted a policy requiring appeals of long-term suspensions to “be filed within ten days of the date of the Superintendent’s decision.”  As petitioner correctly notes, the Commissioner has consistently held that such a rigid timeframe is inconsistent with due process, the Education Law and sound educational policy (Appeal of B.L.G., 50 Ed Dept Rep, Decision No.  16,101; Appeal of M.T., 48 id. 263, Decision No. 15,854).  As such, I find that respondent’s policy is inconsistent with the requirements of the Education Law and sound educational policy and must be revised.  Therefore, I decline to apply respondent’s policy under the circumstances of this case and find that respondent’s refusal to consider petitioner’s appeal amounts to a constructive denial of her appeal under the circumstances (see e.g. Appeal of A.G., 56 Ed Dept Rep, Decision No. 17,084). 

The Commissioner has previously ruled that an appeal pursuant to Education Law §310 is timely if brought within 30 days of a board of education’s denial of an appeal to it as untimely (see Appeal of B.L.G., 50 Ed Dept Rep, Decision No. 16,101).  In this case, the superintendent informed petitioner that her appeal was denied as untimely in a letter dated April 5.  Where, as here, 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 Sheehan, 57 Ed Dept Rep, Decision No. 17,255; Appeal of K.W., 48 id. 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  This appeal was not commenced until May 16, more than 30 days after petitioner is deemed to have received respondent’s determination, and is therefore untimely.  While the record indicates that a request was made on April 16 that respondent reconsider its denial of the appeal, a request for reconsideration does not extent the time in which an appeal must be commenced (Appeals of R.L.R.K. Jr., 55 Ed Dept Rep, Decision No. 16,983; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Petitioner argues that her delay in commencing the appeal should be excused because of respondent’s delay in providing her with a recording of the hearing.  In her March 22 letter requesting an appeal, petitioner also requested a copy of the audio recording of the hearing.  The district’s policy on “Student/Parent Rights at Student Discipline Hearings” indicates that parents “are entitled to a copy of the record upon request.”  The policy further provides, among other scenarios not relevant here, that a request for a record of a tape recording of the hearing may be made within 30 days of the close of the hearing.  Petitioner’s request was made within 30 days of the February 29 hearing and, thus, satisfied the requirements of respondent’s policy.  Nevertheless, petitioner alleges that on April 26, counsel for petitioner sent a letter again requesting a copy of the audio recording, which respondent admits. 

In response to respondent’s papers submitted in opposition to petitioner’s request for interim relief, counsel for petitioner submitted an affidavit which addresses respondent’s claim that the appeal is untimely.[3]  In that affidavit, counsel for petitioner asserts that the audio recording was not received until May 7 and further contends that it was necessary to review the recording because the hearing was lengthy and her client was unable to recall the hearing in sufficient detail.  On that basis, petitioner argues that I should excuse her delay in commencing the appeal.

On this record, I will excuse petitioner’s delay in commencing the appeal for good cause shown.  The record indicates that respondent did not comply with petitioner’s March 22 request for a copy of the hearing until May 7, more than 30 days after respondent had denied petitioner’s appeal.  Respondent has provided no reason for such delay, and I find that it was reasonable for counsel for petitioner, who did not appear or represent petitioner at the hearing, to seek review of the audio recording of the lengthy hearing before commencing an appeal.  While Education Law §3214(3)(c) does not require that a stenographic transcript of the hearing be made, it does require that a record of the hearing be maintained and further provides that a tape recording is deemed a satisfactory record.  Respondent, through its dilatory response to petitioner’s timely request for a recording of the hearing, impaired petitioner’s ability to file a timely appeal based upon the record of the underlying hearing.  Considering the brevity of counsel for petitioner’s delay and in the interest of justice, I find that petitioner has established good cause for the delay under the circumstances (see Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 476, Decision No. 14,287).

Turning to the merits, I find that respondent’s premature consideration of the student’s anecdotal record warrants expungement of the student’s long-term suspension.  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 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, petitioner and the student were not provided with a copy of the student’s anecdotal record prior to the hearing.  Moreover, during the hearing, and prior to a finding as to the student’s guilt, the hearing officer solicited evidence regarding prior disciplinary incidents involving the student.  For example, the hearing officer allowed the student’s teacher to testify about prior disciplinary incidents involving the student even though, by the teacher’s own admission, she had “not witnessed” the specific comments with which the student was charged.  At the conclusion of the hearing, the hearing officer made statements which reflected his consideration of prior disciplinary incidents involving the student, such as: “I believe the combination of disrespect and the inability to follow reasonable requests that it is highly probable that there have been some of these actions or words ...” and “I believe that there is [sic] some manifestations from her behavior [and] I have a high probability of thinking that this did come out and happen....”  In his written decision, the hearing officer noted that while the student denied the charges, she “admitted that she [had] been disruptive and insubordinate on numerous occasions.” 

This evidence reveals that the hearing officer made no attempt 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 T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of G. and D.S., 39 id. 755, Decision No. 14,370).  Therefore, based on the premature admission of the student’s anecdotal record, I find that expungement of the student’s long-term suspension is warranted.[4]

The improper introduction of the student’s anecdotal record is emblematic of the many problems that plagued the entire hearing.  A review of the record reveals that the hearing officer failed to exercise appropriate authority over the proceeding, and witnesses frequently argued and spoke over each other.  The focus of the hearing frequently strayed from the issue of whether the student committed the charged conduct and, instead, devolved into discussions of whether the student had engaged in other inappropriate conduct for which she was not charged.  Most problematically, the hearing officer repeatedly asked the student to admit her guilt as to the charged conduct and made statements suggesting that she was being untruthful.  For example, the hearing officer told the student: “you're not helping me; you’re not engaged in this conversation; I’m not getting a good feeling that you’re trying to help yourself”; “we’re obviously here for a reason”; “we don’t make this stuff up”; and “I'm telling you something’s off here.”  While a hearing officer may ask questions of a witness to develop an adequate record or clarify an issue, the comments made by the hearing officer here were improper and do not reflect the impartiality required of a hearing officer designated pursuant to Education Law §3214.  I admonish the district to ensure that students receive fair and impartial long-term suspension hearings.

Finally, based upon the violations of due process and Education Law §3214 described in this decision, I will grant petitioner’s request to direct that the district amend its policies concerning student discipline in accordance with this decision.  Given this disposition, I need not address the parties’ remaining arguments.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent’s long-term suspension of N.B. from March 2, 2012 through the end of the 2011-2012 school year be expunged from her record; and

IT IS FURTHER ORDERED that respondent revise its student discipline policies and procedures in accordance with this decision.

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