Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 17,338

(March 13, 2018)

The Legal Aid Society, attorneys for petitioner, Karen Yazmajian, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Joshua C. Wertheimer, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Chancellor of the New York City Department of Education (“respondent”) to suspend her son.  The appeal must be dismissed.

During the 2016-2017 school year, the student attended ninth grade in a high school located within the City School District of the City of New York.  On March 22, 2017, the student chased a classmate down a hallway holding an object which respondent contends was a knife.  The student was suspended from school effective March 24, 2017 pending a superintendent’s hearing.[1]

On March 28, 2017, the New York City Department of Education (“DOE”) sent petitioner a notice of superintendent’s suspension which indicated that a long-term suspension hearing would be convened on March 30, 2017.[2]  The notice charged the student with constituting a danger to the health, safety, welfare and morals of other students by: (1) “chasing another [student] . . . down the hallway with a knife”; and (2) “possession of a dangerous weapon, to wit: a knife.”  The notice also stated that the student had been suspended pending a long-term suspension hearing because he “pose[d] a continuing danger to persons or property or an ongoing threat of disruption to the academic process.”

The long-term suspension hearing, which was rescheduled at petitioner’s request, convened on April 5, 2017.

In an email dated April 20, 2017, an early resolution counselor with DOE informed a social worker and educational consultant who worked with petitioner that the Chief Executive Officer in respondent’s Office of School and Youth Development (“CEO”) had found the student guilty of the charged conduct and imposed a one-year suspension.  The CEO subsequently sent a letter to petitioner dated April 21, 2017 confirming her finding of guilt and the one-year suspension.  In a subsequent letter dated May 3, 2017, the CEO “confirm[ed]” the student’s long-term suspension and explaining her reasoning in detail.

On June 2, 2017, petitioner appealed the CEO’s decision to respondent.  In a written decision dated September 28, 2017, respondent upheld the CEO’s determinations with respect to guilt and penalty.  This appeal ensued.

Petitioner contends that respondent failed to prove the student’s guilt through competent and substantial evidence.  Specifically, petitioner argues that respondent relied solely on hearsay evidence, which cannot, pursuant to Chancellor’s Regulation A-443, form the sole basis of a finding of guilt in a long-term suspension hearing.  Petitioner specifically objects to the introduction of three written witness statements, as these witnesses did not testify at the hearing.  Petitioner also contests certain testimony offered by the high school dean at the hearing and argues that video surveillance footage introduced at the hearing does not conclusively demonstrate that the student possessed a knife.  Petitioner requests that respondent “expunge all references” to the suspension from the student’s record.

Respondent contends that DOE proved the student’s guilt through competent and substantial evidence.  While respondent agrees that DOE may not establish a student’s guilt at a long-term suspension hearing by exclusive reliance on hearsay evidence, it contends that DOE produced both direct and hearsay evidence and that, together, this evidence establishes the student’s guilt.  Respondent also contends that the video surveillance footage sufficiently establishes the student’s possession of a knife.  Respondent further asserts that the CEO found the dean to be credible, and that nothing in the record contradicts this credibility finding.  Respondent also asserts that the witnesses’ written statements were properly admitted but that, even if they were not, the remaining evidence in the record establishes the student’s guilt by competent and substantial evidence.

I note initially that 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, No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Here, the student has served his entire suspension.  In this respect, petitioner asserts that DOE permitted the student to return to school in September 2017 “so that he could be placed in his current school, which is a school for special education students only.”  Therefore, to the extent that the student’s suspension has been served, any claim regarding the appropriateness of such suspension is moot (see e.g. Appeal of Kainz, 38 Ed Dept Rep 339, Decision No. 14,049).  However, petitioner seeks expungement of the long-term suspension from the student’s record, and this claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

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).

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).

Turning first to petitioner’s objections to the introduction of three written statements by witnesses who did not testify at the hearing, Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897).

Here, DOE improperly introduced the written statements without making the students who wrote these statements available for cross-examination.  Although a school district’s interest in protecting the identity of student witnesses against possible retaliation from a potentially violent student may overcome a student’s right to question witnesses against him or her (D.F. v. Bd. of Educ. of Syosset Cent. Sch. Dist., 386 FSupp2d 119, aff’d 180 Fed App’x 232, cert denied 549 US 1179; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of C.M., 53 id., Decision No. 16,583), DOE did not make such an argument at the hearing and does not pose such an argument on appeal.  Therefore, I find that the student witnesses’ statements were improperly admitted into evidence at the hearing and I have not considered them in my analysis.

However, the admission of written statements into evidence may constitute harmless error, where, as here, there is other competent and substantial evidence in the record by which a district may independently determine a student’s guilt (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,574).  At the hearing, the dean testified regarding his investigation of the March 22, 2017 incident.  Specifically, on March 22, 2017, the dean received a call over his radio from a school aide who indicated that he or she “need[ed] assistance on the fifth floor.”  The dean proceeded to the fifth floor, where he “overheard many of the kids” making statements such as “he had a knife” and “did you see the size of that knife.”  Later that same day, a student witness “who was crying and pretty much shaking” approached the dean, stating that the student had “pulled a knife on him,” and that he had been “running basically in essence for his life.”  The dean subsequently obtained a picture of the student from the “CAASS”[3] system and showed it to the witness.  The witness confirmed that the student was the person who pulled a knife on him and chased him.

At the hearing, DOE also introduced video surveillance footage from March 22, 2017 which captured a portion of the incident.  While the quality of the video precludes a detailed analysis, the video portrays a student running down the hallway who is then chased by another student, who the dean identified as the student who is the subject of this appeal.  In the footage, the student is brandishing an elongated object in his hand which he points at the running student.  The dean reviewed this footage during the hearing and identified the student brandishing the object as the student who is the subject of this appeal.

I find that this evidence, as a whole, establishes the student’s guilt by competent and substantial evidence.  While I agree with petitioner that the surveillance footage is somewhat unclear and does not unequivocally demonstrate that the object the student possessed was a knife, the dean’s description of his investigation – in particular, his conversation with a witness who told him that the student chased him with a knife and his testimony that he overheard several other students in the hallway saying that the perpetrator had a knife – sufficiently establishes the student’s guilt as to the charges of “chasing another [student] ... down the hallway with a knife” and possession of a knife.  Moreover, the hearing officer found the dean’s testimony credible, and 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).  I find no basis in the record to disturb the hearing officer’s credibility determination, especially considering the fact that the student did not testify at the hearing and petitioner did not submit any written or testimonial evidence into the record.  Moreover, I note that while petitioner speculates that the object portrayed in the video could have been “something other than a knife, such as a ruler,” petitioner provides no explanation of why other students specifically described the object as a knife.  Therefore, I find on this record that DOE established the student’s guilt by competent and substantial evidence. 

Finally, the record does not support a finding that respondent proved the student’s guilt solely through hearsay evidence in violation of Chancellor’s Regulation A-443.  In addition to the due process protections provided by Education Law §3214, this regulation provides enhanced protections to students who are the subject of a long-term suspension hearing with respect to hearsay evidence by providing as follows:

School officials are responsible for proving by direct or circumstantial evidence the student’s involvement in the incident(s) charged.  A finding that the student committed the act(s) charged may not be based exclusively on hearsay evidence.

As a starting matter, I agree with respondent that the plain language of the regulation only prohibits a finding of guilt predicated “exclusively” on hearsay evidence and, thus, does not preclude the consideration of hearsay evidence in conjunction with direct or circumstantial evidence.  Thus, so long as respondent’s determination of guilt was supported by some non-hearsay evidence, respondent could also rely upon hearsay evidence to further support a finding of guilt.

Here, after the video surveillance footage was admitted into evidence without objection, the dean spoke regarding his personal observations of the footage.  This evidence was not hearsay (see People v. Ham, 43 Misc3d 1227(A) [holding that a complainant’s statement of what she viewed on videotape is not hearsay and citing other cases with similar holdings and reasoning]).  Indeed, petitioner admits in her petition that the video surveillance was not hearsay and alleges that “the [s]chool’s only non-hearsay evidence was [the] security camera video.”  Moreover, the dean’s observations were subject to cross-examination at the hearing, which counsel for petitioner elected not to do.  Therefore, because respondent’s determination was based, in part, on non-hearsay evidence, DOE sufficiently established the student’s guilt as required by Chancellor’s Regulation A-443, and I need not separately analyze whether each piece of evidence introduced by DOE to establish the student’s guilt constituted hearsay.

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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