Appeal of M.B., on behalf of her son D.A., from action of the Board of Education of the Fredonia Central School District regarding student discipline.

Decision No. 17,406

(June 11, 2018)

Hodgson Russ, LLP, attorneys for respondent, Ryan L. Everhart, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Fredonia Central School District ("respondent") to discipline her son (“the student”).  The appeal must be sustained in part.

The student was in the eleventh grade on Friday October 20, 2017 when the alleged incident at issue in this appeal occurred.  The female student who was the alleged victim in this incident was in the ninth grade at the time of the incident.  On the day of the incident, the students had a half-day of school.  The female student was waiting to be picked up by her father and the student walked with her as she headed upstairs to her locker.  The student allegedly pushed the female student against the wall in a stairwell at school and forced his hand down her pants, penetrating her vagina.  The student also allegedly grabbed the female student’s buttocks and forcibly kissed her on the face and neck.

A high school teacher, who had learned about the incident from the female student’s mother, reported the incident to the high school principal on the following Monday.  The female student’s mother told the teacher that she and the female student had reported the incident to the local police department over the weekend.  The record reflects that criminal charges were brought against the student, although it does not reflect the outcome of such charges.  The female student eventually met with the principal and told him that she was too upset to write a statement describing the incident.  The principal asked the female student to verbally describe what had occurred, and he transcribed her statement.  The female student then reviewed the statement and indicated that she agreed with it. 

The principal also met with the student, and the student wrote out a statement of his version of the events that took place on October 20, 2017.  The student denied all allegations made against him by the female student and claimed that he had never been alone with the female student on the date in question.

The principal then informed the superintendent about the situation and they decided to suspend the student for five days pending a superintendent’s hearing.  On Tuesday, October 24, 2017, the day after meeting with both students, the principal met with petitioner and the student and attempted to discuss video footage the district had obtained from the time of the incident.  Petitioner would not allow the student to view the footage at that time and declined to view it herself.  The video, which is part of the record on appeal, does not show what occurred in the stairwell because there were no cameras in that location, but does show that, contrary to the student’s written statement, he was alone with the female student on October 20, 2017 as they walked together immediately prior to and following the alleged incident, though there were some others who passed by them in the hallway. 

On October 30, 2017, an informal meeting was held with petitioner and the principal regarding the incident and the principal stated that the student would be suspended for five days from October 31 through November 6, 2017.  This decision was memorialized in a letter dated October 31, 2017, which stated that the student was charged with “[f]orcible [s]exual [o]ffenses.”  By notice dated November 2, 2017, petitioner was informed that a long-term suspension hearing would be convened on November 6, 2017.  The record reflects that petitioner requested an adjournment of this hearing date.

The hearing, presided over by a hearing officer, occurred on November 14, 2017.  The female student and the principal testified at the hearing; the student did not.  A friend of the student, who had been with the student and the female student prior to the incident, testified on the student’s behalf. 

By decision dated November 22, 2017, the hearing officer found that, based on competent and substantial evidence in the form of the testimony of the principal and the female student, the student was guilty of the charged conduct.  At the penalty phase of the hearing, the student’s attorney and school district’s attorney reached an agreement regarding the student’s penalty; however, that agreement did not come to fruition because it was contingent upon the agreement of the local BOCES program, which did not so agree.  Therefore, the hearing officer recommended that the student be suspended for the rest of the 2017-2018 school year, but that he be provided with an opportunity to return to school at the beginning of the fourth quarter so long as he “actively and successfully” participated in voluntary counseling regarding sexual education “and/or destructive decision making” to the satisfaction of the superintendent. 

The superintendent adopted the hearing officer’s findings and recommendations with respect to guilt and penalty.  On November 29, 2017, petitioner appealed the superintendent’s decision to respondent.  By letter dated December 13, 2017, respondent modified the superintendent’s penalty by removing the opportunity for the student to return to school early and left in place the student’s suspension for the remainder of the 2017-2018 school year.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 19, 2018.

Petitioner contends that the decision to suspend the student was not substantiated because there is no video footage of the incident or witnesses to the alleged October 20, 2017 incident other than the student and the female student.  Petitioner asserts that the female student was not truthful in her statements during the investigation or in her testimony at the hearing.  Petitioner also contends that she and the student were provided with ineffective assistance of counsel at the hearing.  Petitioner accuses the district of violating the student’s “civil rights” and committing several procedural errors during the investigation.  Petitioner further alleges that respondent failed to provide her with all evidence prior to the hearing, including an alleged second video of the incident.  Petitioner also argues that respondent violated district policy by placing the student in in-school suspension without notice to petitioner; that the principal did not interview the student prior to placing him in in-school suspension and then suspending him for five days; and that the principal and vice principal questioned the student without petitioner’s knowledge or presence despite her instructions to the contrary.

Petitioner also states that the student has not received sufficient alternative instruction.  Petitioner further asserts that the student’s tutor is not qualified in math, and that the student is receiving tutoring along with other students which negatively impacts his education.  Petitioner seeks a determination that the student is “not guilty” of the charged conduct or, in the alternative, that the student be allowed to attend the alternative education program offered by the district.  Petitioner also seeks expungement of the entire suspension from the student’s record. 

Respondent contends that the decision to suspend the student was based on competent and substantial evidence.  Respondent alleges that the district conducted an investigation prior to charging the student with misconduct, that the hearing officer found the female student credible and that there is no basis in the record to reverse this credibility finding.  Respondent also asserts that petitioner’s claims regarding ineffective assistance of counsel are not properly within the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310 and are otherwise without merit.

First, in this matter, I must address a procedural issue.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the student’s short-term suspension, in the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupils’ presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).[1]

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The student’s five-day suspension must be expunged.  As noted above, respondent’s staff met with petitioner and the student on October 24 and 30, 2017.  At the October 30 meeting, petitioner and the student were orally informed that the student would be suspended for five days, beginning the next day, October 31, 2017.  The written notice to petitioner regarding the short-term suspension is dated October 31, 2017 and it is unclear when this notice was received; therefore, there is no evidence in the record that this written notice was provided before the student’s suspension began.  Holding the informal conference after the student’s suspension had already begun defeats the purpose of the written notice requirement, which is to apprise parents of their rights to question complaining witnesses and have an informal conference with the principal.  These requirements, in turn, afford the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849). 

Additionally, petitioner states in the petition that she was informed of the “hearing” on October 30.  It appears from the record that this notification was made orally at the October 30 meeting.  It is well-settled, however, that “[h]olding an informal conference with the principal does not excuse the requirement for written notification to students and their parents ... explaining their rights to the conference and the opportunity to question complaining witnesses” prior to the suspension (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of S.K., 56 id., Decision No. 17,031; Appeal of B.B., 49 id. 253, Decision No. 16,017; Appeal of R.J. and D.J., 44 id. 191, Decision No. 15,145; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).  Based upon the above deficiencies with the written notice, the student’s five-day suspension must be expunged from his record (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).  I remind respondent that, when imposing future short-term suspensions, it must fully comply with the requirements of Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4).

Turning to the student’s long-term suspension, 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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909). 

As noted above, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The student is currently serving a suspension through the end of the 2017-2018 school year.  As petitioner correctly argues, there were no witnesses to the incident and there is no video footage of the stairwell where the incident allegedly occurred.  Accordingly, the student’s guilt was largely based upon an assessment of the credibility of the female student and the principal, and of the written statement made by the student, since the student did not testify at the hearing.  In his decision, the hearing officer found that the female student’s “sworn testimony at the hearing [was] both credible and consistent with the statement she made to [the principal] the Monday after the event in question.”  The hearing officer also found it relevant that “no witnesses were presented to provide an alternative version of what took place that day.”  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 T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of C.S., 48 id. 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909).  The evidence presented both at the hearing and on appeal does not show that the hearing officer’s credibility determinations were inconsistent with the facts.  I have no basis to substitute my judgement for that of the hearing officer.

Nevertheless, petitioner argues that the female student was not truthful because she initially testified that the incident occurred at the end of the hallway by the exit door near a flagpole, and only after viewing the video did she testify that the incident occurred in the stairway.  However, as the hearing officer found, the female student’s testimony was consistent with her statement made to the principal shortly after the incident, and I am not persuaded that the mere fact that she had to correct herself on this point renders her testimony untruthful or provides a basis for substituting my judgment for that of the hearing officer with regard to her credibility.  Similarly, I am not persuaded by petitioner’s argument that a text message sent by the female student to her mother immediately following the incident with the student in which she stated that she “hit [the student] and ran off” is not supported by the video and thus diminishes her credibility.  The female student explained that what she meant by “ran off” is that she left the student on a landing and headed downstairs. The student followed her and they both walked back down the hallway side-by-side to the exit door.  The video shows that the female student was looking at her cell phone as she walked and was not looking at, or interacting with, the student.  She testified that though she looked calm, she felt scared and remained quiet.  She also testified that she did not immediately report the incident to a teacher because the student was right next to her.  Thus, petitioner has failed to establish, by clear and convincing evidence, that the hearing officer’s acceptance of the female student’s account of the incident was inconsistent with the facts in the record.

Furthermore, at the hearing, the principal testified that he did not believe the student’s written statement to be truthful because the student indicated that he was never alone with the female student while the camera footage shown by the district showed otherwise.  The student’s account of what happened is that the female student was waiting to be picked up and he and a friend, A.S., decided to wait with her.  He indicates that after 15 minutes, he “got bored” and began to talk to a police officer who, presumably, was a school safety officer.  He then states that he said goodbye to the officer and A.S., said goodbye to the female student, and “then [went] to Walmart.”  At the hearing, counsel for petitioner argued that the principal’s conclusion was flawed because the video evidence shows some other students and staff passing the two students in the hallway.  However, the video evidence clearly portrays the two students walking side-by-side and leaving the hallway via the stairwell for several minutes before returning.[2]  The female student testified that there were no others present in the stairwell, which the principal characterized as a more secluded spot.  As the hearing officer found, the student did not produce any evidence to contradict the female student’s testimony.  It was the student’s prerogative to decide not to testify because of the criminal proceeding, but the consequence of doing so was that no evidence was presented to contradict the female student’s testimony.  Moreover, the student’s written statement is silent about what happened after he said goodbye to A.S. and states that he was “never alone” with the female student.  The student’s assertion that he was “never alone” with the female student is flatly contradicted by the video evidence, which shows the two students walking together with no others close by and then entering a secluded stairwell.

Therefore, I will not substitute my judgment for that of the hearing officer with respect to credibility and I find that there was competent and substantial evidence in the record that the student is guilty of the charged conduct.

Finally, petitioner raises assertions regarding the effectiveness of the attorney who represented her at the long-term suspension hearing.  Education Law §3214(3)(c)(1) provides that at a long-term suspension hearing a student shall have 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297).  Here, there is no evidence in the record that the student was unable to exercise his rights under Education Law §3214 at the hearing, nor does the record reflect that petitioner objected to her counsel’s conduct on appeal to respondent.  Petitioner retained the right to dismiss her attorney and seek an adjournment of the hearing to obtain different counsel if she felt the student’s rights were not being properly adjudicated, but she did not do so.  Moreover, the Commissioner has no jurisdiction over petitioner’s claims regarding her attorney’s experience in handling such matters.

I have considered petitioner’s remaining arguments, including her contention that the student is not receiving sufficient alternative instruction while suspended, and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s short-term suspension of the student for five days between October 31, 2017 and November 6, 2017, be annulled and expunged from his record.

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