Appeal of J.M., on behalf of his son P.M., from action of the Board of Education of the Schalmont Central School District regarding student discipline.

Decision No. 17,335

(February 27, 2018)

Ferrara Fiorenza PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Schalmont Central School District to impose discipline on his son, P.M. (“the student”).  The appeal must be sustained.

On May 8, 2015, the student approached student A.C. in the cafeteria and asked why A.C. had been cyberbullying his sister.  After this interaction, the student attempted to return to his table.  The student was then confronted by A.C.’s brother, student D.G.  According to the student, D.G. “raised his voice” and said “that is my little brother[;] watch who you are talking to.”  The student then told D.G. “get out of my face little boy.”  As further discussed below, the following sequence of events is disputed and unclear from the record.  One witness testified that he saw the student swing at D.G., while other witnesses testified that they did not observe the student push or punch D.G.

Eventually, student C.M. arrived.  The student was physically restrained by D.G., who held his arms behind him, while student C.M. repeatedly punched him.  According to the record, the student was also placed in a “choke-hold” during the altercation. 

By letter dated May 8, 2015, the principal suspended the student for five days.  The letter further indicated that a long-term suspension hearing would be convened on May 13, 2015.  The record also contains a letter from the superintendent to petitioner dated May 11, 2015 describing petitioner and the student’s rights in connection with the hearing and charging the student with “Assault with Physical Injury or Threat of Injury on School Property.”

The hearing convened as scheduled.  In a written decision dated May 13, 2015, the superintendent found that the district had proven the student’s guilt by competent and substantial evidence.  The superintendent found that the student “put the events that occurred on May 8^th in motion” by confronting A.C. about the alleged cyberbullying of his sister.  The superintendent further found that the student “exacerbated” the situation by telling D.G. “get out of my face little boy.”  The superintendent additionally found that the student “admitted taking a swing” at student D.G.  The superintendent did not find that the student “punched DG further nor ... hit CM due to other students attempting to pull him out of the situation and therefore binding his movement.”  The superintendent also found that the student “was punched repeatedly by either DG or CM.”  The superintendent indicated that she would consider this information in deciding upon an appropriate penalty.

According to the superintendent’s decision, the student’s anecdotal record included a previous incident from February 2015 where the student left class to confront a student about cyberbullying his sister and an “altercation ensued.”  Based on this evidence, the superintendent concluded that “there seems to be a pattern emerging of [the student] taking it upon himself to ‘talk’ to others about cyberbullying his sister.” The superintendent noted the availability of the high school’s Dignity for All Students Act (“DASA”) coordinator and imposed a four-week suspension as a penalty.

Petitioner appealed the superintendent’s decision to respondent.  In a letter dated June 25, 2015, respondent indicated that it had considered and denied petitioner’s appeal at a board meeting held on June 22, 2015.  In the June 25, 2015 letter, respondent stated that there was competent and substantial evidence that the student “engaged in a threat of injury while on school property.”  Respondent reasoned that the student “admitted to the high school principal that he swung at another student,” and that the student admitted to making “a threatening statement to another student.”  Respondent concluded that “[t]his action and this comment ... in addition to [the student’s] other action during the course of the altercation is evidence that [the student] threatened injury.”  Respondent further found that the penalty was “reasonable” because the student “had been disciplined earlier in the school year for a similar incident in which he intervened on behalf of his sister.”  This appeal ensued.  Petitioner’s request for interim relief was denied on September 22, 2015.

Petitioner contends that the superintendent’s finding of guilt was not supported by competent and substantial evidence.  Petitioner further argues that the penalty was excessive because the student did not anticipate interacting with students other than A.C., the student whom he had initially approached, and did not “throw any first punch[es].”  Petitioner further argues that, in swinging at another student, the student acted in self-defense.  Petitioner requests that the entire incident be expunged from the student’s record.

Respondent argues that its determination was supported by competent and substantial evidence; namely, the testimony of several witnesses that the student swung at student D.G.  Respondent further submits that the penalty imposed was appropriate and proportional to the student’s misconduct.

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).

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).

As stated in the May 11, 2015 notice of hearing, respondent charged the student with “Assault with Physical Injury or Threat of Injury on School Property.”  While the record demonstrates that the student engaged in inappropriate conduct, I find that the district failed to produce competent and substantial evidence of the charges, and that any “assault” committed by the student was justified on the ground of self-defense.

As a preliminary matter, I note that neither party has addressed whether the specific charge or portions of the charge are defined in respondent’s code of conduct and neither party has submitted a copy of respondent’s code of conduct as part of the record in this appeal.  Therefore, for purposes of this appeal, I note that, as commonly understood and defined in Webster’s New Collegiate Dictionary, assault means “a violent physical or verbal attack” (see Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241).  Similarly, in the context of civil assault, the United States Court of Appeals for the Second Circuit has stated that, under New York law, an assault “is an intentional placing of another person in fear of imminent harmful or offensive contact.” (United Nat. Ins. v. Waterfront N.Y. Realty Corp, et al., 994 F.2d 105 (collecting authorities), accord Charkhy v. Altman, 252 A.D.2d 413.

The record demonstrates that, after the student confronted A.C., D.G. approached, “raise[d] his voice” and said “that is my little brother[;] watch who you are talking to.”  In response to this comment, the student “felt offended,” “raised [his] voice” and told D.G. “get out of my face little boy.”  Although the student admitted at the hearing that he made this comment, I cannot find that this comment constituted a violent physical or verbal attack with threat of injury.  As stated above, the student initially approached A.C. and spoke with him about alleged cyberbullying of his sister.  There is no evidence in the record that this discussion was heated or aggressive.  Thereafter, D.G. appeared, “raise[d] his voice” and said “that is my little brother[;] watch who you are talking to,” to which the student responded by making the comment quoted above.  The student’s comment was inappropriate, and the district could presumably have sought to impose discipline upon him a charge of violating an appropriate provision of respondent’s code of conduct.  Instead, however, the district charged the student only with “Assault With Physical Injury or Threat of Injury,” and there is no evidence in the record suggesting that the student’s comment constituted “assault” with a “threat of injury” to D.G. or the intentional placing of another in fear of imminent harmful or offensive contact (cf. Appeal of Aldith L., 39 Ed Dept Rep 291, Decision No. 14,241 [student’s use of threatening and profane language at a teacher and pushing her constituted assault]).

After this interaction, the student and D.G. confronted each other.  The evidence in the hearing record as to what transpired during this confrontation is inconsistent at best.  Students S.B. and M.B. testified that they observed the entire fight but did not see the student throw the first punch at D.G. or otherwise instigate a physical altercation.  Student J.C. similarly testified that he did not observe the student swing at D.G.  Student M.B. specifically testified that D.G. threw the first punch.  The student, testifying on his own behalf, stated that he did not attempt to punch D.G., and that he may have made physical contact only while he was physically restrained and attempting to defend himself.

In contrast, two other witnesses testified that they saw the student swing at D.G.  Student witness W.T. testified that, after telling D.G. to “get out of [his] face,” the student swung once at D.G.  Student witness T.H. testified that he saw the student hit D.G. “two-to-four times probably,” but did not elaborate as to when such blows occurred (i.e., before or after the student was physically restrained). 

Therefore, although aspects of the record are contradictory and inconsistent, the weight of the evidence in the record as a whole supports a finding that, contrary to the conclusions of the superintendent and respondent, the student did not swing at D.G. prior to being physically restrained.  Ordinarily, I would not substitute my judgment regarding credibility 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).  However, in this case, the superintendent did not make any specific credibility determinations, merely stating that she “found much of the testimony given on both sides credible.”  Absent a specific credibility determination resolving this contradictory testimony, I find that the record does not support crediting the testimony of two witnesses over the testimony of four witnesses (i.e., three eye witnesses and the student).  The principal testified that the student admitted to swinging at another student, but did not indicate that the student admitted that he swung at D.G. prior to being physically restrained.  The student testified that he took a swing at C.M. while trying to escape, but denied swinging at D.G.  Accordingly, the record as a whole does not contain sufficient evidence to support the superintendent’s finding that the student engaged in “Assault with Physical Injury or Threat of Injury on School Property” by swinging at D.G. prior to the period during which the student was physically restrained.

I now turn to the period during which the student was physically restrained after initially confronting D.G.  The principal testified that, in a meeting with the student and petitioner after the altercation, the student “said he did swing and ... said it was partially because the other students swung first.”  He further testified that the student told him that he was swinging because he needed to defend himself.  Later in the hearing, the principal asked the student to confirm that, in the meeting with the student and petitioner, the student said to him: “what would you do if people were swing[ing] at you?”  The student admitted that he asked the principal this rhetorical question, but stated that he only swung while “[t]rying to escape” from the students who were physically restraining him.  The district did not introduce any other evidence clarifying the scope of the student’s admission.  Therefore, the record supports a finding that the student admitted to swinging at another student while he was physically restrained and trying to escape.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No. 15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of D.M., 47 id. 433, Decision No. 15,745).  Therefore, I find that the student’s admission that he swung at another student, albeit while physically restrained and trying to escape, establishes his guilt as to the specific charge of assault with physical injury or threat of injury.

However, in numerous decisions the Commissioner has recognized that, in a proper case, a student may raise self-defense as a justification for the student’s conduct (see Appeal of a Parent of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,574; Appeal of a Student with a Disability, 49 id. 452, Decision No. 16,079; Appeal of R.Y., 49 id. 336, Decision No. 16,046; Appeal of D.S. and D.S., 45 id. 289, Decision No. 15,327; Appeal of P.M., 44 id. 437, Decision No. 15,223; Appeal of M.F. and D.F., 43 id. 174, Decision No. 14,960; Appeal of Steven and Mary Ann M., 39 id. 785, Decision No. 14,380; Appeal of Kittell, 31 id. 419, Decision No. 12,686).  Self-defense is a limited defense insofar as it only provides justification for acts which are necessary to protect the individual from attack, and only permits sufficient force to reasonably provide such protection (see Dupre v. Maryland Mgmt. Corp., 283 A.D. 701; Van Vooren v. Cook, 273 A.D. 88; Decker v. Werbenec, 36 Misc.2d 220; Zannone v. Pollino, 155 N.Y.S.2d 836; Curtis v. Kozeluh, 50 N.Y.S.2d 883).

The Commissioner has consistently applied these principles in student discipline appeals.  Thus, in Appeal of a Parent of a Student with a Disability (53 Ed Dept Rep, Decision No. 16,574), the Commissioner rejected a justification of self-defense based on the severity of the response, which involved a punch to the face that broke the other student’s jaw.  In Appeal of R.Y. (49 Ed Dept Rep  336, Decision No. 16,046), the Commissioner rejected a justification of self-defense because he was unable to verify who initiated the altercation; the student was actively involved in the altercation and had to be physically separated from the other student; the student failed to comply with directions by staff to stop fighting; and the student had to be physically separated from the other student.  In Appeal of P.M. (44 Ed Dept Rep 437, Decision No. 15,223), the Commissioner found that the student punched other students several times and did not walk away from the dispute.  Finally, in Appeal of Steven and Mary Ann M. (39 Ed Dept Rep 785, Decision No. 14,380), the Commissioner found that the student had punched another student and that petitioner had not proven that the fight was provoked by the other student.

Applying these principles to the unique circumstances of this case, I find that petitioner has established that the student justifiably acted in self-defense and swung only in an attempt to extricate himself from physical restraint which had been imposed by another student.  The student testified that he was in pain, bloody and confused; had received an estimated dozen punches to his face when he took a swing at C.M.; and that he only swung in an effort to escape.  Student witnesses confirmed that the student’s arms were held behind his back while he was punched repeatedly by C.M.  The student denied taking a swing at D.G., but admitted that he may have hit C.M. in his effort to escape.  There is no evidence in the record that C.M. suffered any physical injury as a result of any such swing; that the student threw any other punches after swinging at C.M., which the superintendent acknowledged in her decision; that the student persisted in fighting after attempting to escape from the physical restraint; or that the swing involved excessive force in response to the attack by C.M.  Therefore, I find that the charge of “Assault with Physical Injury or Threat of Injury on School Property” must be dismissed because the student committed an assault in a justifiable act of self-defense.  Given this conclusion, petitioner’s request for expungement of the student’s suspension from his record must be granted.[1]

While I am constrained to sustain petitioner’s appeal based on the record before me, I note that nothing herein should be interpreted as condoning the student’s role in the incident at issue herein.  Respondent presumably could have charged the student with misconduct under its code of conduct for his role in provoking the entire incident by confronting another student with an allegation that he was cyberbullying his sister and then engaging in a verbal exchange, but instead chose to charge the student with assault, which can be rebutted if the assault is found to have been in self-defense.  My decision in this case is based on the circumstances presented in this record and should not be construed as minimizing the gravity of the incident or the safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.

In light of this determination, I need not address the parties’ remaining contentions. 

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent’s suspension of P.M. from May 8, 2015 through June 5, 2015, be expunged from his record.

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