Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Half Hollow Hills Central School District regarding student discipline.

Decision No. 17,408

(June 11, 2018)

Law Offices of Douglas A. Spencer, PLLC, attorneys for petitioner, Douglas A. Spencer, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Joseph Lilly, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Half Hollow Hills Central School District (“respondent”) to impose discipline on her son (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, the student was a senior in respondent’s high school.  On October 16, 2017 at approximately 2:15 p.m., Wayne Ebanks, an assistant principal at one of respondent’s high schools, was in a high school parking lot ensuring that a student made it on the bus to go home.  While doing so, he observed a student walk by a parked car, put his mouth on a vaping device which a student in the driver’s seat of the car extended out of his window, and attempt to walk away.  Assistant Principal Ebanks approached the car.  The student who is the subject of this appeal sat in the driver’s seat of the parked car and another student sat in the passenger’s seat.  Assistant Principal Ebanks observed the student take the vaping device from his hands and place it in the center console of the car.  Assistant Principal Ebanks told the students to remain where they were and requested additional assistance from a second assistant principal, Mary Lippert.

When Assistant Principal Lippert reached the parking lot, Assistant Principal Ebanks informed her that he had seen the student facilitate another student’s use of the vaping device.  Assistant Principal Lippert proceeded to search the vehicle which, according the record, is owned by petitioner.  In addition to the vaping device which Assistant Principal Eubanks had observed, Assistant Principal Lippert uncovered copious amounts of drugs and drug paraphernalia, including used vaping cartridges, vials bearing the symbol of a marijuana leaf and labeled “Sunset Sherbert” that appeared to contain cannabis oil, gummy candies laced with marijuana, rolling papers, and marijuana.  Assistant Principal Lippert then proceeded to search inside the rear of the vehicle, where she uncovered a paintball gun, a bow, which was disassembled, and several arrows.  While Assistant Principal Lippert conducted her search, the student indicated that the marijuana, drug paraphernalia and paintball gun belonged to his brother, and that the bow and arrows belonged to his mother.  The student denied knowledge that any of the recovered items were in the car.  Assistant Principal Ebanks testified, however, that the student admitted that he had used the vaping device and shared it with another student.  According to the record, the student received a five-day out-of-school suspension based upon his possession of the drugs, drug paraphernalia and bow and arrows as well as his “admi[ssion] to using a vaping device on school grounds.”[1]

In a letter dated October 19, 2017, counsel for the district indicated that a long-term suspension hearing would be held on October 23, 2017 based upon the following charges:

Charge 1: possession of drug paraphernalia; namely, a marijuana vaporizer;

Charge 2: possession of three cartridges of Tetrahydrocannabinol (“THC”) oil, also known as marijuana oil;

Charge 3: use of a marijuana vaporizer to inhale Tetrahydrocannabinol (“THC”) oil, also known as marijuana oil;

Charge 4: providing a marijuana vaporizer containing tetrahydrocannabinol (“THC”) oil, also known as marijuana oil, to another student, in that, respondent student held said vaporizer in his hand while the other student pressed his or her mouth to the vaporizer and inhaled;

Charge 5: possession of marijuana;

Charge 6: possession of three packages of marijuana gummy candy;

Charge 7: possession of drug paraphernalia; namely, marijuana rolling papers;

Charge 8: possession of a weapon; namely, a paint gun; and

Charge 9: possession of a weapon; namely, a bow and arrows.

Respondent further alleged that each incident violated its code of conduct and occurred on school grounds.

The hearing, presided over by a hearing officer, convened as scheduled.  Following the parties’ presentation of evidence and testimony, the hearing officer issued findings of fact and found the student guilty of all nine charges.  Thereafter, a manifestation determination review (“MDR”) team convened and determined that the student’s conduct was not a manifestation of his disability.  The hearing officer then convened the penalty phase of the hearing during which the principal requested a suspension through June 21, 2018; i.e., the end of the 2017-2018 school year.  The hearing officer indicated that he would take the matter under advisement.

In a written decision dated October 27, 2017, the superintendent adopted the hearing officer’s findings of fact and determination of guilt.  Additionally, the superintendent adopted the hearing officer’s recommendation as to penalty: suspension through June 21, 2018.  Petitioner appealed the superintendent’s decision to respondent.  In a letter dated December 19, 2017, respondent’s district clerk indicated that respondent considered and denied petitioner’s appeal on December 18, 2017.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 25, 2018.

Petitioner contends that respondent failed to prove, by competent and substantial evidence, that the student was guilty of the charged conduct.  In this regard, petitioner argues that the student did not “possess” the items within the meaning of respondent’s code of conduct because he did not physically possess or exercise control over the items discovered in the vehicle.  Petitioner also argues that the search of the vehicle constituted an unreasonable search in violation of both the federal and State constitutions.  Petitioner further argues that the student’s penalty was excessive in light of the student’s personal circumstances, including the recent death of a parent.  Petitioner requests that the student’s suspension be vacated and expunged from his record.

Respondent contends that it established the student’s guilt through competent and substantial evidence and that the suspension was reasonable and appropriate.  Respondent further argues that petitioner failed to exhaust her administrative remedies with respect to her argument that the district engaged in an unreasonable search as petitioner did not raise this issue at the hearing or in her appeal to respondent.  In any event, respondent argues in the alternative that the search of the vehicle was justified at the inception and reasonable at every stage throughout.

First, with respect to petitioner’s argument that the search of the vehicle amounted to an unconstitutional search, this claim must be dismissed for failure to exhaust administrative remedies.  The record contains a written appeal to respondent dated November 27, 2017 which did not allege that the search of the vehicle was unreasonable, or that it violated the federal or State constitutions.  Respondent contends that this issue was not presented for its review.  Therefore, petitioner cannot now raise this objection for the first time in an appeal pursuant to Education Law §310 (see Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of S.Z. and K.Z., 52 id., Decision No. 16,384).

urning 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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).

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).

Here, I find that respondent proved the student’s guilt as to each of the nine charges by competent and substantial evidence.  Petitioner’s challenges to charges 1, 2, and 5-9 concern the meaning to be afforded the word “possession,” which is not defined in respondent’s code of conduct.  Petitioner contends that the student did not engage in the conduct encompassed by charges 1, 2, and 5-9 because the items which are the subject of those charges “were never observed in [his] hands,” and he otherwise lacked “dominion or control” over them.  In Appeal of a Student with a Disability (57 Ed Dept Rep, Decision No. 17,290), I rejected a similar argument which is materially indistinguishable from petitioner’s argument in the instant appeal.  In Appeal of a Student with a Disability, I took judicial notice of Penal Law §10.00(8), which defines “possess” as: “to have physical possession or otherwise to exercise dominion or control over tangible property.”  The term “possess” includes actual or constructive possession of tangible property (see People v. Sierra, 45 NY2d 56, 60).  Constructive possession of items can be established where there is evidence of an individual’s dominion and control over an automobile in which the items were found (see People v. Stringos, 198 AD2d 458, appeal denied 83 NY2d 858, citing People v. Manini, 79 NY2d 561, 573).

Here, as in Appeal of a Student with a Disability (57 Ed Dept Rep, Decision No. 17,290), the record shows that petitioner’s son had dominion and control over the car in which the items were found.  He had driven the car to school, parked it in the student parking lot on school grounds and answered questions about the items as the assistant principal discovered them.  Additionally, the vaping device and several vaping cartridges, which were located within a “black pouch,” were located in plain view in the center console of the car between the driver and passenger seats.  Although petitioner argues that the items belonged to other family members and that the student was not aware of their presence, this does not mean that the student did not “possess” the items under the definition articulated in Appeal of a Student with a Disability (57 Ed Dept Rep, Decision No. 17,290).  Therefore, I reject petitioner’s argument and find that respondent demonstrated the student’s possession of the items described in charges 1, 2, and 5-9, and respondent did not err by finding the student guilty of those charges.

Although it is unclear whether petitioner challenges charges 3 and 4 on appeal, which do not include the element of possession, I further find that respondent proved the student’s guilt as to charges 3 and 4 by competent and substantial evidence.  At the outset, Assistant Principal Lippert testified that she spoke with the student after the items in the car were discovered and “[h]e admitted that he had tried the vaping device and shared it with another student.”  The student did not testify at the hearing and neither petitioner nor the student refuted this statement.  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  Therefore, the record supports a finding that the student used the vaping device and shared it with another student.

The record further supports a finding that, when the student and the other student used the vaping device, it contained a vaping cartridge which contained marijuana oil.  Assistant Principal Ebanks witnessed the student hand the vaping device to another student located outside of the car, who put his mouth on the device.  Assistant Principal Ebanks then approached and saw the student place the vaping device in the center console of the car.  There is no evidence in the record that anyone modified or interfered with the vaping device between the time when Assistant Principal Ebanks viewed it and the time that district officials took it into custody.  The principal testified at the hearing that he observed Assistant Principal Lippert’s search of the vehicle and recovery of the items found therein.  The principal further testified that he has discovered students with similar devices in the past and, through these experiences and his own independent research, had learned how such devices work.  The principal reviewed photographs of the vaping device and vaping cartridges recovered from the car, which were admitted into evidence at the hearing.  The principal testified that, based upon his experience and research, each of the cartridges recovered from the vehicle contained cannabis oil.[2]  The principal further testified that the vaping device contained a substance which “look[ed] identical to the items in the containers.”  It appears from the record that the student admitted to using the vaping device and sharing it with another student.  Thus, the evidence adduced by respondent, while largely circumstantial, nevertheless, has not been refuted by petitioner and constitutes competent and substantial evidence of the student’s guilt.

Finally, petitioner argues that the penalty imposed was excessive given the fact that, inter alia, many of the items belonged to members of the student’s family; that the student has a “nearly unblemished” anecdotal record; and that one of the student’s parents had recently died.  Petitioner argues that suspension through June 21, 2018, the student’s senior year, is “tantamount to and otherwise represents a de facto permanent suspension ....”  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909).

First, I will address petitioner’s contention that the penalty imposed was “tantamount” to a permanent suspension.  This language originated with Commissioner’s appeals concerning students who received a suspension through the time in which they turned 21; i.e., the maximum age by which a student may obtain a high school diploma (Appeal of Osoris, 35 Ed Dept Rep 250, Decision No. 13,531; Appeal of Stewart, 34 id. 193, Decision No. 13,279).  However, in Appeal of F.M. (48 Ed Dept Rep 244, Decision No. 15,849), this reasoning was extended to a suspension lasting through a student’s senior year, even though the student would have at least two additional years of eligibility to obtain a high school diploma at the conclusion of his suspension.  I implicitly rejected the reasoning of Appeal of F.M. (48 Ed Dept Rep 244, Decision No. 15,849) in the recent appeal of Appeal of A.W. (57 Ed Dept Rep, Decision No. 17,254) and now hereby overrule Appeal of F.M. insofar as it concludes that a suspension through the end of a student’s senior year is tantamount to a permanent suspension, as well as any other appeals which may have applied its reasoning.  Suspension through a student’s senior year is not per se “tantamount” to a permanent suspension since, depending on the student’s age, he or she may have two or more years of eligibility to obtain a high school diploma following such suspension.  In fact, the record here indicates that the student would be provided alternative education during the suspension and would have the opportunity to graduate with his class.  To hold otherwise would, essentially, impose a higher evidentiary bar on a district that suspends a student who commits serious misconduct during his or her senior year of high school, as a permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits “an alarming disregard for the safety of others” and where it is necessary to safeguard the well-being of other students (Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of L.T., 44 id. 89, Decision No. 15,107).  Therefore, I hereby hold that the mere suspension of a student through his or her senior year of high school does not transform a suspension, ipso facto, into a permanent suspension.

Turning to the suspension imposed in this appeal, I do not find that it is so excessive that it justifies substituting my judgment for that of respondent.  The record demonstrates that the student provided marijuana to another student to smoke on school grounds using the vaping device, and that he possessed a host of illegal and dangerous items and marijuana products inside of his vehicle, many of them within plain sight of the driver’s seat where the student was sitting.  While petitioner stresses that the paint gun, bow and arrows, drug paraphernalia and marijuana products did not belong to the student and argues that the student did not know those items were in the car, she ignores the fact that it was inappropriate and extremely dangerous to possess such items on school grounds, as well as the fact that the student actually used and shared some of those items on school grounds.  While I am sympathetic to the student’s recent loss of a parent prior to the incident, I do not find that this justifies substituting my judgment for that of respondent with regard to the penalty.  I do not find a suspension of approximately eight months to be excessive, given the fact that the student is guilty of possessing and using a vaping device containing marijuana on school property as well as the danger of bringing copious amounts of drugs, drug products and a bow and arrows onto school grounds.

THE APPEAL IS DISMISSED.

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