Appeal of R.E. and J.E., on behalf of their daughter E.E., from action of the Board of Education of the West Babylon Union Free School District regarding student discipline. 

Decision No. 17,438

(July 6, 2018)

John J. McGrath, Esq., attorney for petitioners

Van Nostrand & Martin, attorneys for respondent, William C. Morrell, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the West Babylon Union Free School District (“respondent”) to impose discipline upon their daughter, E.E. (“the student”).  The appeal must be sustained in part.

During the 2015-2016 school year, the student was a junior in respondent’s high school.  On December 15, 2015, “pepper spray” was released into a school hallway which, according to respondent, caused a “noxious smell.”  The record indicates that “a bad smell in the hall” was reported to the main office of the high school and an administrative assistant was sent to “see if the smell [was] from one of the stoves in the nearby [h]ome and [c]areer room....”  In an affidavit submitted with this appeal, the administrative assistant indicates that he knew that “the noxious odor was not natural gas and no CO2 alarms had gone off,” but that he “could not identify [the smell].”  Thereafter, respondent assembled its “Emergency Management Team,” alerted emergency services and evacuated the school.  Emergency Medical Technicians (“EMTs”) who arrived at the scene evaluated staff and students.  According to respondent, EMTs treated 18 people on site while 33 people were transported to local hospitals.

Later that day, respondent’s Emergency Management Team conducted an investigation, which included a review of video surveillance footage (“video”) of the hallway where the incident occurred.  In his affidavit, the administrative assistant[1] states:

The tape showed the ladies in the hall in front of a locker.  I recognized them from my general interaction with the student body but I did not know their names....  One of the teachers with a classroom on that hallway identified all three (3) girls.   

In an affidavit submitted with this appeal, the principal indicates that:

[T]he police had informed [the superintendent] that the two girls responsible for the incident of December 15 had gone to the police and given their statements in regard to the incident and confessed to having dispensed the noxious spray.

This affidavit also indicates that on the day after the incident, at petitioner J.E.’s request, petitioner J.E. and the student met with the principal.  Respondent asserts that at this meeting, petitioner J.E. and the student were advised of their right to an informal conference and they agreed that the meeting would suffice.  Respondent further contends that the principal deemed the student’s presence in the high school “a danger to herself and the students and staff,” and that “her presence in school would create a disruption within the school.”  Therefore, the principal advised petitioner J.E. and the student that the student was “suspended immediately.”[2]    

     By letter dated December 16, 2015, the principal notified petitioner J.E. that the student was suspended as a result of:

[H]er violation of the code of conduct for the dispensing and possession of a noxious substance in the building; disruption of the educational process causing the evacuation of the building; disruption of the normal operations of the school community; endangering the health, safety and welfare of all students, faculty and staff (emphasis omitted). 

The letter indicated that the suspension was “effective immediately because [the student’s] presence may cause a disruption to the academic process” and that a long-term suspension hearing was scheduled to be held on December 22, 2015. 

The hearing, presided over by a hearing officer, convened on March 30, 2016.[3]  The hearing officer found the student guilty of the charged conduct based upon the evidence and testimony adduced at the hearing.  The hearing officer recommended that the student be suspended through December 16, 2016.  Although the record does not contain copies of the decisions of the superintendent or respondent, it appears that the superintendent accepted the hearing officer’s recommendations regarding guilt and penalty and that petitioner appealed this decision to respondent, which upheld the superintendent’s determination.  This appeal ensued.  Petitioners’ request for interim relief was denied on August 11, 2016. 

Petitioners appeal both the student’s short-term and long-term suspensions and argue that there was an “insufficient legal basis for the imposition of any suspension....”  Petitioners argue that the hearing officer should have recused herself because “as an administrator in the business office of the school district she could not hear the case impartially.”  They further argue that their procedural due process rights were violated because the “notice of charges,” “notice of [the] right to an informal conference,” and “notice of a superintendent’s hearing and the charges related to such hearing” were not entered into evidence at the superintendent’s hearing.  Petitioners also argue that “no evidence was submitted substantiating the imposition of such a long term [sic] suspension” and object to the admission of certain evidence at the superintendent’s hearing.  Petitioners raise constitutional claims and argue that the student was denied her constitutional right to an education because the alternate instruction provided to the student during the suspension was “inadequate.”  Finally, petitioners argue that a teacher “violated [the student’s] right to privacy in all matters related to her education” and that the district took no action against the teacher “in retaliation for the petitioners’ filing this appeal.” 

For relief, petitioners request that the suspension be “rescinded retroactive to the first day of suspension ...” and that all records of any discipline related to the incident that occurred on December 15, 2015, be expunged from the student’s files and all district records.  Petitioners also request that “the [d]istrict refrain from taking any action against the petitioners or their daughters [sic] in the future.”  Finally, petitioners request that the district expunge the student’s failing grades for all courses and tests the student took as part of the district’s alternate instruction program and provide additional remedial instruction to the student so that she can re-take any tests that she failed.

Respondent argues that the petition must be dismissed because the appeal is untimely, not verified and that an electronic signature on the petition is not a “true signature.”  Respondent contends that “petitioners’ attorneys by repeated requests for adjournment cause[d] the lengthy delay between the day of the [s]uspension and the day of the [h]earing”; that the district received only one complaint from petitioners with regard to the alternative instruction provided; and that the district offered “concentrated Chemistry and Mathematics summer sessions...” which were refused by petitioners.  Respondent further argues that the hearing process was fair and reasonable, that the decision to suspend the student was based on competent and substantial evidence, and that the length of the suspension was commensurate with the severity of the offense. In this respect, respondent argues that if this had been a criminal proceeding, the student’s conduct would have constituted a Class B misdemeanor.   

I will first address the procedural issues.  Respondent initially asserts that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

Respondent argues that the appeal is untimely because the petition was served on July 15, 2016, 31 days after a meeting of the board of education held on June 14, 2016, where respondent purportedly upheld the determination of the superintendent.  However, respondent does not indicate how, or when, its determination was communicated to petitioners.  Specifically, respondent does not indicate whether petitioners received actual notice at the June 14, 2016 board meeting, or whether it communicated its determination to petitioners in writing thereafter (c.f. Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269). 

I note that the only evidence in the record that could be construed as a written determination from respondent is a letter dated June 20, 2016 (“June 20 letter”), from respondent’s acting superintendent to petitioner J.E.  The letter purports to respond to two letters from petitioner J.E. to the superintendent and respondent dated May 3 and June 14, 2016, which are not part of the record.  The June 20 letter states that there is “no question” that the student participated “in the event causing the situation.”  Therefore, assuming arguendo, that the June 20 letter represented respondent’s final determination, petitioners commenced this appeal within 30 days of this letter. In any case, respondent bears the burden of proving its affirmative defense, and it has failed to do so on this record (8 NYCRR §275.12; see also Appeal of Kenton, 54 Ed Dept Rep, Decision No. 16,649).

Respondent further argues that the appeal must be dismissed for lack of verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  While respondent contends that the petition it received was unverified, the copy of the petition submitted to my Office of Counsel contains the required verification, which properly attests to all allegations in the petition.  A defect in the verification of the copy of a pleading served upon a party is insufficient to bar filing of a pleading, provided that the original pleading submitted to the Department for filing includes a proper verification (Appeal of K.M. and T.M., 56 Ed Dept Rep, Decision No. 17,095; Carthage CSD v. Commissioner of Education, et al.; Supreme Court, Albany County, Special Term; Mott, J.; Judgment granted dismissing petition to review; November 28, 2017, n.o.r.); Appeal of Johnson, 46 id. 67, Decision No. 15,443; Appeal of O.W., 43 id. 150, Decision No. 14,949).  Therefore, I decline to dismiss the petition for lack of proper verification.

Respondent also argues that “the signature [on the petition] is not a true signature but rather what is labeled as an Electric [sic] Signature.”  New York State Technology Law §304(2) governs the use of electronic signatures and provides that, unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.  Section 275.4 of the Commissioner’s regulations requires that the names of parties or attorneys be “endorsed” on all papers; however, the regulation does not define the word “endorsed” nor does it explicitly prohibit the use of electronic signatures.  I additionally note that General Construction Law §46 indicates that a broad range of marks may serve as acceptable forms of a signature, including:

[A]ny memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. 

Therefore, considering the permissive scope of the State Technology Law and the General Construction Law concerning signatures, I decline to dismiss the petition for lack of an original signature.

Petitioners’ claims regarding the adequacy of the alternative instruction services provided by respondent must be dismissed as moot.  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, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Here, the student has completed the suspension for which she was provided alternative instruction, thus rendering any dispute as to these services moot (Appeal of a Student With a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of C.B. and B.R., 50 id., Decision No. 16,192).

To the extent petitioners raise constitutional claims, the appeal must be dismissed for lack of jurisdiction.  An appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of A.S., 57 Ed Dept Rep, Decision No. 17,319).

Similarly, to the extent petitioners raise claims regarding the student’s educational privacy rights, these claims, too, must be dismissed for lack of jurisdiction.  The Commissioner lacks jurisdiction to consider claims regarding the federal Family Educational Rights and Privacy Act (“FERPA”).  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611; Appeal of G.H.L., 46 id. 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509).

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 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 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).

Petitioners initially contend that the hearing officer could not have been impartial because the hearing officer was a district employee.  Education Law §3214(3)(c) provides that the superintendent shall personally hear and determine the suspension proceeding or may, in his or her discretion, designate a hearing officer to conduct the hearing.  In this case, the superintendent designated an administrator who worked in the district’s business office as the hearing officer.

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).  The record indicates that the administrator appointed as the hearing officer acted solely in that capacity at the hearing, and contains no evidence that the hearing officer acted improperly or exhibited any bias.  Other than their conclusory assertion that the hearing officer was inherently biased, petitioners make no claims and submit no proof that the hearing officer was made aware of any of the facts of the case prior to the hearing, or to establish any bias or personal involvement in the matter on the hearing officer’s part (Matter of Gioe v. Bd. of Educ. of E. Williston School Dist., 126 AD2d 723, 724; Dimele by Dimele v. Potter, et al., 177 AD2d 755, 756, appeal dismissed 79 NY2d 914; Appeal of J.H., 54 Ed Dept Rep, Decision No. 16,687; Appeal of F.W., 48 id. 399, Decision No. 15,897).  Therefore, petitioners’ claims of bias are without merit.

Petitioners also object to the introduction of a written statement by a witness 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297). 

Here, respondent improperly introduced the written statement without making the student who wrote the statement available for cross-examination.  In its answer, respondent asserts that it “had an interest in protecting the identity of [the student witness] and that outweighs any interest a charged student has in cross-examination.” Respondent further asserts that the student witness “was afraid of what would happen to a snitch.”  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), a review of the hearing transcript indicates that respondent did not make such an argument at the hearing (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,338).  While respondent now claims that it wanted to withhold the name of this witness, one of respondent’s two assistant principals,[4] assistant principal M.D., revealed the name of the student witness on the record at the hearing during direct examination.  Thus, even assuming that respondent initially had an interest in safe-guarding the identity of this student witness, the revelation of the student witness’s name at the hearing, in the presence of the student, extinguished any such interest.  Although admission of a written statement in lieu of live testimony may constitute harmless error, those circumstances do not exist in this case.  As discussed below, the written statement was the only evidence presented at the hearing which identified and implicated the student.  I further note that it is unclear whether the hearing officer, superintendent or respondent relied upon this statement, as respondent failed to submit copies of these decisions on appeal.  Therefore, I cannot conclude that the introduction of the written statement was harmless under the circumstances (see Appeal of N.H., 47 Ed Dept Rep 467, Decision No. 15,756; Appeal of R.C. 41 id. 446, Decision No. 14,741), and find that the written statement was improperly admitted into evidence and I have not considered it this appeal.

Based on the remaining evidence adduced at the hearing, I find that respondent failed to provide competent and substantial evidence that the student committed the alleged misconduct. 

At the hearing, the student pled “not guilty” to the charges.  Therefore, it was incumbent upon respondent to establish that the student engaged in the charged conduct.  Respondent relies upon affidavits submitted by the administrative assistant and assistant principal S.O. to establish the student’s guilt.  However, the affidavits themselves, and the relevant information therein, were not introduced into evidence at the hearing.  Respondent may not augment the hearing record with additional information which it could have introduced, but did not introduce, at the hearing.  To hold otherwise would contravene Education Law §3214(3)(c)(1), which requires that, for a suspension of five days or more, a superintendent’s hearing be held, after which:

[a]n appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it.  The board may adopt in whole or in part the decision of the superintendent of schools.

The affidavits were not a part of the record before respondent on appeal[5] and, therefore, I cannot consider them here (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,290; Appeal of R.C., 49 id. 275, Decision No. 16,023; Appeal of P.K., 41 id. 421, Decision No. 14,733).

At the hearing, respondent presented the testimony of three witnesses in support of its case.[6]  First, the administrative assistant who was dispatched to the hallway where the pepper spray was disbursed testified that he reviewed the surveillance video “to try and determine what had taken place.”  He further testified that at the time of the incident, there were “two girls” outside of the ceramics room and that he subsequently attempted to determine the identities of the girls.  The video was then introduced into evidence and viewed at the hearing.  The administrative assistant testified as to what was depicted in the video.  He testified that there were two girls who were “walking or moving about” and that “[i]t seemed like something took place during that period of time ... a student went down [;] you could see he was in discomfort....”  

With respect to the identification of the two girls in the video, the administrative assistant testified:

So, I backed up in time on the video to try to determine by clothing and so forth, who the girls were.  I didn’t know them um, I asked a variety of different people that were in that office, that work in our building if they recognized them and they identified the students.  I recognized them, but I did not know them by name. 

This testimony does not identify the student as one of the girls in the video.  Nor does the administrative assistant’s testimony explain how the two girls were identified or by whom. 

On cross examination, petitioners’ counsel asked the administrative assistant: “you indicated that other people identified who the students were.  Do you remember who they were?”  The administrative assistant gave two names – both of respondent’s assistant principals, assistant principal S.O. and assistant principal M.D. - and stated “[y]ou were the two individuals that recognized them better than I did.  I was just in the building.”  Respondent could have, but did not, question the administrative assistant about his conversation with the individuals who identified the students.  Moreover, respondent called assistant principal M.D. as a witness but did not question him about the video, or about the identity of the students on the video.  Assistant principal S.O., as indicated above, did not testify at the hearing.  Alternatively, respondent could have called the teacher mentioned in the affidavit from the administrative assistant, who identified the students in the video as a witness, but did not.   

The second witness called by respondent was the high school principal.  She was asked only one question on direct examination: “explain the information that was shared at [the December 16, 2015] meeting ....”  She testified that she, assistant principal S.O., the student, and petitioner J.E. met and that “[t]he information that was shared was that we were told that [the student] had gone to the police with her mother and admitted to discharging the uh, noxious substance.”  The principal’s use of the passive phrase “the information that was shared ...” does not reveal the identity of the person who allegedly made this statement.  Respondent did not ask any further questions on direct examination.  Without any other corroborating evidence, this statement cannot be attributed to the student or petitioner J.E.  Therefore, this evidence does not demonstrate that the student admitted her guilt as to the charged conduct. 

Respondent’s third witness was a lieutenant from the Suffolk County Arson Squad.  He testified that a detective sergeant on duty contacted him after the December 15, 2016 incident and stated “[h]ey, you’ve got two young girls here that say that they might be involved in this incident.”  “So, they said thye [sic] we were involved, this is basically what happened and we have this item; which they gave to the detective.”  The lieutenant did not identify the “two young girls” and specifically, did not indicate whether the student was one of the girls. 

Taken together, the testimony of these three witnesses did not establish, by competent and substantial evidence, that the student was one of the students who engaged in the charged conduct.  Respondent’s position would require me to make inferences and assumptions which are not supported by the evidence in the record.

Therefore, for all of the reasons stated above, I find that respondent has not proven by competent and substantial evidence that the student participated in the charged conduct.  Specifically, respondent has failed to introduce any evidence indicating that the student featured on the video surveillance recording is, in fact, the student who is the subject of this appeal (see Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258; Appeal of Gorzka, 35 id. 20, Decision No. 13,449).  Both the short-term and long-term suspensions were predicated upon a single charge which, as explained above, was not supported by the evidence in the record.  Therefore, under these circumstances, both the student’s short-term and long-term suspensions must be expunged (see Appeal of L.L., 48 Ed Dept Rep 197, Decision No. 15,835 [Supreme Court, Albany County; Transferred to Appellate Division, Third Department; August 18, 2009; Decision and order granting application to withdraw; September 2, 2010]).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent annul and expunge the student’s suspension from December 16, 2015 through December 16, 2016 from her record.

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