Appeal of M.M. and L.M., on behalf of their son J.M., from action of the Board of Education of the Lakeland Central School District regarding student discipline.

Decision No. 17,534

(November 19, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Garrett L. Silveira and Jennifer A. Gemmell, Esqs., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Lakeland Central School District (“respondent”) to impose discipline upon their son (“J.M.” or “the student”).  The appeal must be dismissed.

On or about June 8, 2018, a monitor at respondent’s high school smelled marijuana on students P.M., A.S., and J.M. as they entered the school at approximately 12:30 p.m.  The students were then escorted to the assistant principal’s office.  Each student was interviewed separately by the assistant principal.

Student P.M. told the assistant principal that each of the three students had smoked marijuana in the woods located near the high school.  The principal also interviewed P.M., who again confirmed that all three students had smoked marijuana.

Student A.S. initially told the assistant principal that the three students had merely gone into the woods together.  However, after additional questioning, A.S. admitted that “marijuana was involved” and asserted that only P.M. had smoked marijuana.

Student J.M. initially told the assistant principal that the students went into the woods and that he intended to use a “port-o-potty” located therein.  J.M. then indicated that he decided not to use the port-o-potty because it “smelled bad” and, instead, elected to use the bathroom at his house.  J.M. then indicated that he encountered P.M. and A.S. on his way back to school and they all walked back into the high school together.  After additional questioning, J.M. admitted that “marijuana was involved” but asserted that only P.M. had smoked marijuana.  J.M. also admitted to the assistant principal that there was no port-o-potty in the area described in his initial statement.

In a letter dated June 8, 2018, the high school principal (“principal”) informed petitioners that he was considering suspending J.M. for five days, from September 4 through September 12, 2018.

On June 11, 2018, an informal conference was held with petitioners and the high school principal.  In a letter dated June 11, 2018, the principal imposed a five-day out-of-school suspension from September 4 through September 12, 2018 because the student “was under the influence of marijuana” on June 8, 2018.  Petitioners appealed this determination to respondent.

In a letter dated August 17, 2018, respondent transmitted a written decision dated August 16, 2018 which denied petitioners’ appeal.  This appeal ensued. Petitioners’ request for interim relief was denied on September 4, 2018.

Petitioners contend that respondent failed to produce competent and substantial evidence that the student engaged in the charged conduct.  Specifically, petitioners argue that a diagnostic test performed by the high school nurse was “inconclusive” and that respondent failed to conduct any “definitive, scientifically established tests” to determine whether the student was under the influence of marijuana.  Petitioners also argue that the fact that the student had “dry mouth” was not probative of whether he smoked marijuana because this condition could have been attributable to his “severe allergies and asthma.”  Petitioners also argue that statements given by P.M. were not reliable because he was under the influence of marijuana when he provided such statements.  Finally, petitioners argue that the student’s suspension was excessive.  Petitioners seek expungement of the suspension from the student’s record.

Respondent argues that it produced competent and substantial evidence in support of the student’s guilt. Respondent also argues that the penalty imposed was reasonable and, thus, not excessive.

The appeal must be dismissed.  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 L.J., 50 id., Decision No. 16,195; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694; Appeal of D.M. and C.M., 45 id. 335, Decision No. 15,339; Appeal of D.F., 39 id. 795, Decision No. 14,383).

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, respondent primarily relied upon hearsay evidence and its assessment of the credibility of the three students involved.  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.E., 57 Ed Dept Rep, Decision No. 17,267).  The principal explains in an affidavit that he credited the statements made by P.M., and not those made by students A.S. or J.M.  I will not substitute my judgment for that of local school officials on an issue of witness credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (see Appeal of T.S., 57 Ed Dept Rep, Decision No. 17,233; Appeal of N.C., 56 id. Decision No. 17,001; Appeals of C.C. and R.C., 47 id. 289, Decision No. 15,700; Appeal of Lee D., 38 id. 262, Decision No. 14,029).  The principal credited the testimony of P.M. for two reasons.  First, unlike A.S. or J.M., P.M. provided the same explanation on three separate occasions.  Second, P.M.’s admissions were against his interest.  There is no evidence in the record which contradicts the statements given by P.M., let alone clear and convincing evidence.

By contrast, the principal avers that he did not credit the statements made by A.S. and J.M. because, after being informed by the assistant principal that they “could face discipline for being under the influence of marijuana,” both students changed their stories. Significantly, A.S. and J.M. originally neglected to mention marijuana but later stated, in fact, that “marijuana was involved” and that P.M. had smoked marijuana.  Based on the above evidence, I will not second-guess the credibility determination made by the principal.

Petitioners nevertheless argue that P.M.’s statements cannot be credited because he was allegedly under the influence of marijuana when he made them.  I find this argument unpersuasive for two reasons.  First, petitioners have not established on this record that P.M. did not or was unable to tell the truth under the circumstances.  Second, even assuming that petitioners had made this showing, P.M. offered an identical account of the trip to the woods at the informal conference on June 11, 2018, three days after the June 8, 2018 incident, and there is no evidence in the record that P.M. was under the influence of marijuana at that time.  Thus, I find petitioners’ arguments in this respect unpersuasive.

Petitioners also argue that respondent did not utilize any “definitive scientifically established tests” to determine whether J.M. was under the influence of marijuana.  Under the circumstances of this case, I do not find that any such tests were necessary given P.M.’s repeated statements that he, A.S., and J.M. smoked marijuana and respondent’s credibility determinations relating thereto.

Petitioners further argue that an assessment by a school nurse was “inconclusive” as to whether the student was under the influence of marijuana.  Respondent admits in its answer that the school nurse performed a “diagnostic test” which was inconclusive as to whether the student was under the influence of marijuana.  Neither party has submitted any evidence regarding this diagnostic test.  Regardless, an inconclusive test is just that, and does not establish whether the student was or was not under the influence of marijuana.  As the principal argues, this “inconclusive” determination does not lessen or negate the competent and substantial evidence summarized above which supports respondent’s determination.

Finally, petitioners argue that the penalty in this case 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).  I find that respondent was well within its discretion to impose a five-day suspension on the facts of this case (see e.g. Appeal of T.A., 50 Ed Dept Rep, Decision No. 16,148 [reversing one-year suspension and finding seven months of suspension for use of marijuana a sufficient penalty]; Appeal of Y.M., 43 id. 193, Decision No. 14,968 [reversing permanent suspension for being under the influence of marijuana but noting that such conduct warranted “a significant period of suspension” and ordering reinstatement of student to school after eight months of suspension]; Appeal of Vebel, 38 id. 375, Decision No. 14,058 [35 day suspension for possession and use of marijuana on school grounds was not excessive]).  Moreover, respondent indicates that its code of conduct explicitly indicates that a suspension of more than five days may be imposed for such conduct.[1]  While petitioners point to the student’s lack of prior discipline as a mitigating factor, even a student who has a previously unblemished record is not necessarily entitled to receive a lesser penalty than would otherwise be imposed for a particular offense (Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Matter of Lutes, 25 id. 396, Decision No. 11,624).

For all of the above reasons, respondent’s determination is upheld and the appeal is dismissed.

THE APPEAL IS DISMISSED.

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