Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Rocky Point Union Free School District regarding student discipline.

Decision No. 17,384

(May 8, 2018)

Law Office of Neal H. Rosenberg, attorneys for petitioner, Michael R. Mastrangelo, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Rocky Point Union Free School District (“respondent”) to impose discipline on their son (“the student”).  The appeal must be dismissed.

During the 2017-2018 school year, the student was a senior in respondent’s high school.  One of the student’s classes was an Academic Intervention Services (“AIS”) class. 

On October 26, 2017, four students were initially present in the AIS class – the student, student J.R., and two other classmates.  At the beginning of the class, the two other classmates left the classroom temporarily.  The parties differ significantly in their accounts of what happened next.  As further discussed below, petitioners allege that the student stood up with his back to the teacher and “adjust[ed] the crotch of his pants for a matter of seconds.”  Respondent contends that the student masturbated for at least one or two minutes, making direct eye contact with the AIS teacher while doing so.  After the disputed events, the parties agree that the two classmates returned to the classroom and, per the request of the AIS teacher, the students reported to the library.

In a letter dated October 26, 2017, the high school principal and assistant principal imposed a short-term suspension of the student for five days.  The short-term suspension notice stated that the student “engaged in a lewd act in the classroom on 10/26/17.”

On November 17, 2017, the district convened a long-term suspension hearing.  The student was charged with “insubordinate, disorderly and disruptive [conduct], insofar as he engaged in a lewd act in the classroom” on October 26, 2017.  At the conclusion of the parties’ testimony and submission of evidence, the designated hearing officer found the student guilty of the charged conduct.  Immediately after the conclusion of the long-term suspension hearing, a manifestation determination review (“MDR”) team convened and determined that the student’s conduct was not a manifestation of his disability.

In a written recommendation to the superintendent dated November 17, 2017, the hearing officer indicated that she had found the student guilty of the charged conduct and recommended suspension through June 22, 2018.  The hearing officer further recommended that the student be provided with home instruction through the remainder of the 2017-2018 school year and be barred from the June 22, 2018 graduation ceremony.

In a letter dated November 21, 2017, the superintendent adopted the findings and recommendations of the hearing officer.  Petitioners appealed this determination to respondent which upheld the determination of the superintendent in a written decision dated December 20, 2017.  This appeal ensued.

In this appeal, petitioners raise several challenges regarding the student’s long-term suspension.  Petitioners contend that the hearing officer was not impartial.  Petitioners further argue that the hearing officer improperly rendered a finding of guilt on the record and at the conclusion of the parties’ testimony and presentation of evidence.  Petitioners also allege that respondent failed to prove the student’s guilt by competent and substantial evidence.  Petitioners request that respondent’s decision be “overturned,” that the student be immediately returned to school and that the incident be expunged from his record.

Respondent argues that it established the student’s guilt by competent and substantial evidence; namely, the eyewitness testimony of the AIS teacher.  Respondent further asserts that the hearing officer complied with all statutory requirements and that petitioners and the student were provided with due process.

First, petitioners assert that the hearing officer was not impartial because she remained in a room with district witnesses for a “thirty-minute period” prior to the hearing.  There is a presumption of honesty and integrity in those serving as adjudicators and petitioners have the burden of rebutting this presumption (Appeal of a Student with a Disability, 49 Ed Dept Rep 161, Decision No. 15,986; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065).  According to counsel for petitioners, he was introduced to each person in the room upon his arrival at the location of the hearing.  Thereafter, counsel for petitioners and counsel for respondent left the room and spoke.  After the attorneys left the room, counsel for petitioners alleges that the hearing officer was left alone in a room with district witnesses for a “thirty-minute period.”  Petitioners concede that they have no evidence of what, if any, discussions occurred in the room, but assert that “the mere possibility” of inappropriate discussions prevented the hearing officer from rendering an impartial decision.  Based on this record, I find that petitioners have failed to establish that any improper ex parte conversations occurred and that mere speculation about the possibility of such a conversation does not establish actual bias (see Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268).

Petitioners also fault the hearing officer for rendering a determination of guilt at the conclusion of the parties’ presentation of testimony and evidence.  Petitioners describe the hearing officer’s determination as an “instantaneous” decision and complain that the hearing officer did not “review her transcript nor her notes” before making such a decision.  However, Education Law §3214(c)(1) merely requires a hearing officer to “make findings of fact and recommendations as to the appropriate measure of discipline to the superintendent” and does not prohibit a hearing officer from determining a student’s guilt on the record.  There is no requirement under the statute that a hearing officer review a transcript or his or her notes prior to rendering a decision as to guilt.  Therefore, petitioners’ argument is without merit. 

Turning to the merits, 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 district established the student’s guilt through the testimony of the AIS teacher, which constituted competent and substantial evidence.  The AIS teacher testified that, during class on October 26, 2017, she observed the student “rubbing his genitals with his hands over his pants.”  Next, the AIS teacher testified that the student began joking and laughing with student J.R., who was sitting next to him.  The AIS teacher reprimanded both students and threatened to “send [them] to the office.”  The student then stood up and “continued to rub his genitals.”  The AIS teacher asked if the student needed to use the bathroom or visit the nurse; the student declined.  The student continued “masturbating over his clothes” for at least the next one or two minutes, “looking straight at [the AIS teacher] the whole time.”  The AIS teacher further observed that the student was in a “state of arousal.”  At some point thereafter, the student turned his back to the AIS teacher but, according to the AIS teacher, continued “rubbing himself.”

The AIS teacher also testified that two days earlier, on October 24, 2017, a similar incident had occurred in which she had “noticed out of the corner of [her] eye” that the student appeared to be “masturbating over his pants.”  She testified that because she was not 100 percent sure of what she had witnessed, she merely told the class that it was time to pack up and go to the library.

The student testified that, on October 26, 2017, he and student J.R. were “cracking jokes” during class until the AIS teacher told them to stop.  According to the student, student J.R. subsequently “mimicked” the AIS teacher in a manner to “mak[e] fun of her.”  The student further testified that he stood up shortly thereafter “[b]ecause we were getting ready to go to the library.”  While standing, the student testified that he “adjust[ed] himself” twice, which entailed “[p]ulling [his] pants down.”  The student also testified that he took his keys out of his pocket to untangle them.  According to the student, his back was to the AIS teacher while he performed these activities.

Student J.R. testified that he did not see the student touch his genitals at any time during the class.  Student J.R. further testified that, after the student stood up, he was facing the student and witnessed him “clipping and ... unclipping his keys.”  Student J.R. also witnessed the student touch his pants while standing, indicating that the student “like lifted them like kind of.”

In an affidavit submitted with this appeal, the hearing officer explained that she found the AIS teacher’s testimony “to be honest, forthright and compelling.”  The hearing officer stated that the AIS teacher was “clearly shaken” by the incident, and that the contradictory testimony of the student and J.R. was “forced, contrived[,] convoluted” and “at times contradictory.”  The hearing officer also pointed out that the AIS teacher had no motive to have “fictionalized” the lewd act about which she testified.

Based on this record, I find no error in the hearing officer’s decision to credit the testimony of the AIS teacher over the testimony of the student and J.R.  The hearing officer observed the demeanor of the witnesses and was in the best position to assess their credibility.  I have reviewed the entire hearing record and find no reason to substitute my judgment for that of the hearing officer.

On appeal, petitioners identify several portions of the hearing transcript which, they argue, demonstrate the AIS teacher’s lack of credibility.  As described below, I do not find that these claimed inconsistencies constitute clear and convincing evidence that the hearing officer’s determination of credibility was inconsistent with the facts.  First, petitioners claim that the AIS teacher offered inconsistent testimony when she stated that, from the same physical location in the classroom, she saw the student masturbating on October 26, 2017, but “wasn’t 100 percent” sure whether he had been masturbating two days earlier on October 24, 2017.  However, as the AIS teacher explained, she only witnessed the alleged activity on October 24, 2017 “out of the corner of [her] eye,” and such conduct ceased when she announced to the class that it was time to leave for the library.  By contrast, the teacher testified that, on October 26, 2017, the student stared directly at her while standing and masturbating.  The AIS teacher further testified that, on October 24, 2017, she “was in a little bit more disbelief that [the student’s conduct] could actually be happening” and “didn’t address it.”  I find no basis to disturb the hearing officer’s finding that the AIS teacher’s testimony was consistent and credible.

Petitioners also contend that the AIS teacher’s testimony “defies logic” because a trained educator would not have endured such behavior for, as the AIS teacher testified, “several minutes.”  As a preliminary matter, I note that, although the AIS teacher testified that the student masturbated for several minutes, she later clarified that she was not sure of the exact timeframe, but that it could have been “like a minute or two.”  Regardless of the exact timeframe, the AIS teacher admitted that her reaction was not ideal, and that “in hindsight, [she] probably should have just called for an administrator to come up ....”  However, the AIS teacher testified that she “was in complete shock and panic” in response to the student’s conduct, and that her only thoughts were:

[H]ow am I going to get myself out of this situation and how am I going to also [maintain] the safety of the other students ... I couldn’t just leave[;] I was forced to stay there for the safety of the other students.  And forced to witness this.

I find no basis to conclude that this testimony undermines the AIS teacher’s credibility.

Petitioners further assert that the AIS teacher’s testimony was inconsistent with a written statement she authored on October 26, 2017 with respect to certain conduct by student J.R.  Specifically, petitioners argue that the AIS teacher inconsistently testified that she reprimanded the student and student J.R. for talking in class, while her written statement indicated that she “thought [it] was strange” that student J.R. apologized after class for “‘his’ inappropriate behavior ... because he didn’t do anything wrong except witness the inappropriate behavior of one of his classmates.”  This argument is without merit.  The AIS teacher indicated in both her testimony and written statement that the student and student J.R. were talking in class; that she subsequently reprimanded them; and that student J.R. thereafter “apologized and stopped talking.”  According to the AIS teacher’s written statement, at the end of the period, student J.R. apologized to her for his inappropriate behavior.  It appears that the AIS teacher interpreted this apology to apply to the masturbation incident, which caused her to think that student J.R.’s apology was “strange” under the circumstances.  Student J.R. explained at the hearing that he apologized to the AIS teacher after class for “being disrespectful” to her during class.  I do not find that this misunderstanding affects the credibility of the AIS teacher’s testimony.

Petitioners allege a second discrepancy between the AIS teacher’s written statement and her testimony at the hearing with respect to the timeframe of the relevant events.  Petitioners argue that the written statement suggests that, after the student stood up and began masturbating, the teacher immediately became “so flustered that I just stopped teaching and ushered everyone to the library ....”  By contrast, petitioners allege that, according to the AIS teacher’s testimony, “a few minutes” transpired between such events.  This argument is without merit as it misrepresents the AIS teacher’s written statement.  In the written statement, the AIS teacher explained the same series of events about which she testified; namely, the student stood and masturbated; the AIS teacher asked him if he needed to use the bathroom or see the nurse; the AIS teacher looked away and the student turned his back to her while continuing to “vigorously rub [] his genitals.”  After these events, the AIS teacher stated in her written statement: “[a]t that point I was so flustered that I stopped teaching and ushered everyone to the library ...” (emphasis added).  While it is true that the AIS teacher did not include the detail that she sat down at her desk in her written statement, there is no indication in the record that the AIS teacher intentionally omitted this detail or that such omission affects her credibility.

Finally, petitioners object to hearsay testimony offered by the principal at the hearing, stating that the district “cannot rely on hearsay evidence alone” to prove a student’s guilt.  However, it is well-settled that 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).  Moreover, in this case, it is clear from the record that the principal’s testimony was introduced merely to corroborate the eyewitness testimony of the AIS teacher, and not as direct evidence of the student’s guilt.  Thus, the hearing officer did not err by admitting or relying upon the hearsay testimony of the principal.

Based on the above, I find that respondent established the student’s guilt as to the charged conduct through competent and substantial evidence.

THE APPEAL IS DISMISSED.

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