Appeal of N.C., on behalf of her son C.C., from action of the Board of Education of the Monroe-Woodbury Central School District regarding student discipline.

Decision No. 17,417

(June 25, 2018)

Ingerman Smith LLP, attorneys for respondent, Emily J. Lucas, Esq., of counsel

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

On or about February 21, 2017, the interim principal of respondent’s high school received a report from a student (the “complainant”) that the student who is the subject of this appeal was involved in an inappropriate conversation on social media.  The complainant allowed an assistant principal to print the conversation “directly from the complainant’s cell phone.”

On February 21, 2017, the interim principal met with the student to discuss the conversation.  According to the interim principal, the student “was forthcoming” about his role in the conversation and “was apologetic.”  The interim principal contacted the student’s father and indicated that he would like to meet to discuss the incident.

On February 22, 2017, the interim principal met with the student and his father.  The principal indicated that he was suspending the student for five days and hand-delivered a notice which reflected a suspension from February 22, 2017 through February 28, 2017.

In a letter to petitioner and the student’s father dated February 23, 2017, respondent’s superintendent indicated that she would convene a long-term suspension hearing on February 27, 2017 based upon the student’s participation in the social media conversation.  Specifically, the superintendent stated that the student engaged in “[c]onduct which endanger[ed] the safety and/or health and/or welfare and/or morals of others” involving harassment of another student on social media, posting negative comments about that student’s sexual orientation, making racially insensitive and inappropriate remarks, and making inappropriate remarks about the other student’s deceased grandmother.

The hearing convened on March 2, 2017 following an adjournment requested by petitioner and the student’s father.  In a decision dated March 23, 2017, the superintendent found the student guilty of the charged conduct and imposed a suspension through the remainder of the 2016-2017 school year.  This appeal ensued.

Petitioner contends that the student’s suspension was excessive.  Petitioner alleges that the interim principal originally accused the student of making a racial slur, which the student admitted, and instructed the student to destroy the copy of the conversation thread on his phone.  Subsequently, in the short-term suspension notice, petitioner alleges that the interim principal “listed two (2) additional charges” against the student, which he denies.  Petitioner alleges that she was unable to determine the student’s guilt as to these two charges as she did not have access to a copy of the conversation thread.  Petitioner further contends that she received an incomplete copy of the conversation thread subsequent to the long-term suspension hearing, and that this incomplete version does not support the two additional charges against the student.  Petitioner also complains that other participants in the conversation, including the complainant, engaged in inappropriate behavior.  Petitioner further asserts that, though inappropriate, several of the student’s remarks were taken out of context.  Petitioner requests that the charges be “waived,” that the student be allowed to return to school immediately and that the entire incident be expunged from the student’s record.

Respondent denies petitioner’s contentions and argues that the appeal must be dismissed for failure to exhaust administrative remedies as petitioner did not appeal the superintendent’s decision to respondent.  Respondent further contends that the student admitted to participating in the inappropriate conversation and that its determination of guilt is supported by competent and substantial evidence.  Respondent further contends that the penalty was proportionate to the student’s conduct given the seriousness of the misconduct, but especially considering prior incidents contained in the student’s anecdotal record which were appropriately considered by the hearing officer and superintendent.

Respondent first argues that the appeal must be dismissed for failure to exhaust administrative remedies. Education Law §3214(3)(c)(1) provides that an appeal to the board of education lies from a superintendent’s disciplinary determination.  Accordingly, the decision of a superintendent to suspend a student in excess of five school days following a hearing must be appealed to the board of education prior to initiating an appeal to the Commissioner of Education (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of D.C., 41 id. 190, Decision No. 14,661; Appeal of P.R. and C.R., 41 id. 48, Decision No. 14,611). 

Here, respondent contends in its answer that petitioner failed to appeal the superintendent’s decision to respondent.  The record contains an undated and unsigned letter from the student addressed to the superintendent whereby he sought to “appeal” his suspension.[1]  The letter unequivocally indicates that the student was “writing to ... appeal the extended suspension that I received on February 27, 2017.”  Respondent admits that it received this letter but does not indicate when or how it received it.  Under these circumstances, and mindful of the fact that respondent bears the burden of proving any affirmative defenses (8 NYCRR §275.12[a]; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649; Application of Simmons, 53 id., Decision No. 16,596; Appeal of Mogel, 41 id. 127, Decision No. 14,636), I decline to dismiss the appeal for failure to exhaust administrative remedies.  I further find that respondent’s failure to issue a decision as to petitioner’s appeal amounts to a constructive denial of such (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258; see Appeal of A.G., 56 id., Decision No. 17,084).  Respondent does not raise untimeliness as an affirmative defense; therefore, I will proceed to consider the merits of petitioner’s appeal.[2]

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).

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).

Here, the record indicates that the student admitted to the interim principal on February 21, 2017 that he engaged in the conversation forming the basis of the instant appeal.  Further, at the long-term suspension hearing, the student pled “no contest” to the charges against him.  Although New York State Criminal Procedure Law does not provide for a “no contest” plea (see McKinney’s Criminal Procedure Law §220.10), the courts have recognized that an individual’s “no contest” plea amounts to “an admission of the facts as charged” (Kufs v. State of New York Liquor Authority, 637 NYS2d 846 at 847 [citations omitted]).  The court in Kufs held that “[b]y entering [his] ‘no contest’ plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed” (Kufs v. State of New York Liquor Authority, 637 NYS2d 846 at 847 [citations omitted]). 

Previous Commissioner’s decisions have recognized that under certain conditions, parents may waive a student’s due process rights under Education Law §3214 (Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385; Appeal of A.S. and S.K., 44 id. 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818; Appeal of a Student Suspected of Having a Disability, 41 id. 390, Decision No. 14,722).  For such a waiver to be valid, however, it must be “voluntary, knowing and intelligent” (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  The district must provide the student and parents with a written document clearly and concisely stating all of the rights to be waived, as well as the consequences of waiving such rights (Appeal of A.S. and S.K., 44 Ed Dept Rep 129, Decision No. 15,122; Appeal of a Student with a Disability, 42 id. 192, Decision No. 14,818).

In those cases, petitioners waived their rights to a hearing altogether, and, as stated in Appeals of McMahon and Mosely, et al., opted to “accept the findings and proposed disposition of the district” (Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976).  In sharp contrast, petitioner and the student did not waive their due process rights to a hearing, but rather, proceeded to the appointed date and time of the hearing and, after being fully apprised of their due process rights by the hearing officer, chose to enter a plea on the record.  In addition, petitioner and C.C. had not agreed in advance of the hearing to respondent’s findings or proposed disposition.  Previous Commissioner’s decisions have upheld “no contest” pleas as valid when entered into knowingly and voluntarily (see Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385; Appeal of Martha and Peter F., 39 id. 545, Decision No. 14,305 [appeal dismissed where petitioners’ counsel entered a “no contest” plea without an admission of guilt and knowingly and voluntarily entered into stipulations regarding the charges and penalty]).

As noted above, the procedural protections afforded students in a student discipline hearing do not need to reach the level of those in a criminal trial.  Nothing in the record indicates, nor does petitioner argue, that C.C.’s “no contest” plea was not entered in a voluntary, knowing and intelligent manner.  Therefore, I find that petitioner’s son, having knowingly and voluntarily pled no contest to the charges against him, is precluded from challenging the facts underlying these charges (Appeal of T.B., 52 Ed Dept Rep, Decision No. 16,385).[3]

Petitioner also asserts that the student’s suspension was excessive.  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).  On this record, I do not find a suspension of approximately three months to be excessive.  As respondent indicates, the student’s comments, which included sexual comments and a racial slur, were extremely inappropriate.  Moreover, the student’s anecdotal record revealed troubling prior disciplinary incidents, including an incident on March 4, 2015 where the student possessed nude photographs of a middle school student and, in reference to the photographs, threatened to “ruin her life”; an incident on October 28, 2014 where he yelled to a student “why don’t you go kill yourself”; and two incidents on October 1, 2014 where the student told two sixth-grade girls “turn around and I will shoot you” and where he told another student he would “kill his family” as well as the student’s dog.  Under these circumstances, respondent was well within its discretion to impose a suspension of approximately three months and there is no basis in the record to substitute my judgment for that of respondent.

Given this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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