Appeal of L.M., on behalf of her son C.M.; S.H., on behalf of her son K.H.; and J.S.C., on behalf of her son N.C.; from action of the Board of Education of the North Colonie Central School District regarding student discipline and grading.

Decision No. 17,561

(December 21, 2018)

Law Offices of Timothy J. O’Connor, attorneys for petitioners, Timothy J. O’Connor, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the North Colonie Central School District (“respondent” or “board”) to suspend their sons, C.M. and K.H.,[1] and impose academic penalties.  The appeal must be dismissed.  

During the 2015-2016 school year, C.M. and K.H. were juniors in respondent’s high school and enrolled in respondent’s college-level physics course offered through respondent’s “University in the High School Program” in conjunction with the University at Albany College of Arts and Sciences (“UHS Physics”). 

According to respondent, UHS Physics is a full-year course, with a mid-term in January.  However, the University at Albany divides the UHS Physics course into two separate, one-semester courses of instruction, “Physics 105” and “Physics 106” with accompanying laboratory components.  Therefore, the UHS Physics mid-term is also the Physics 105 final examination.  In the 2015-2016 school year, UHS Physics was overseen by respondent’s Science Supervisor, Keith Bogert, and taught by science teacher Weldon Culp.  According to respondent, Mr. Culp provided students with study and practice materials that he uploaded on to respondent’s “Moodle page”[2] for UHS Physics, including study and practice materials for the 2015-2016 mid-term examination.

According to Mr. Culp’s affidavit, during the 2014-2015 school year, he prepared a comprehensive UHS Physics mid-term examination (“2015 mid-term exam”), using a secure, subscription-based service called “Test Wizard,” through which he accessed a secure database of thousands of proprietary exam questions relating to physics.  Mr. Culp attests that he selected certain questions from Test Wizard and put them into a specific order for the 2015 mid-term exam, and personally prepared the instructions.  To ensure the security of the 2015 mid-term exam, Mr. Culp saved it and the accompanying answer key in his personal electronic directory in “.pdf” format on his password-protected, district-issued laptop computer.  The files were also saved on the district’s secure network server in Mr. Culp’s personal directory.  According to Mr. Culp, the 2015 mid-term exam was not uploaded to the Moodle page for the UHS Physics course or otherwise made available to his students as a study aid.

According to Mr. Culp, given the difficulty and effort required to create a valid, fair assessment for UHS Physics, he determined, with Mr. Bogert’s approval, that the 2015 mid-term exam would be used again as the UHS Physics mid-term examination for the 2015-2016 school year (“2016 mid-term exam”).  

On or about January 28, 2016, a student informed Mr. Bogert that students from Mr. Culp’s 2015-2016 UHS Physics course were reviewing and discussing the 2015 mid-term exam in the high school’s Media Center prior to the administration of the 2016 mid-term exam.  Specifically, the student informed Mr. Bogert that the student took photographs of the computer monitor at which certain UHS Physics students were sitting, which depicted four computer files relating to the 2015 mid-term exam, including the answer keys to both parts of the 2015 mid-term exam.  Mr. Bogert and the student then informed Taft Hall Principal Brian Spofford, who subsequently informed Building Principal Richard Murphy and Mr. Culp.  Following these discussions, a full investigation was commenced to determine whether any academic dishonesty or cheating occurred regarding UHS Physics.

On January 29, 2016, two students enrolled in UHS Physics informed a teacher that they had information regarding the 2016 mid-term exam, so Principal Spofford and Mr. Bogert met with them individually.  According to respondent, that information corroborated and expanded upon the information provided by the other student the day before. 

During the week of February 1, 2016, Principal Spofford and Mr. Bogert interviewed approximately 30 students, many of whom provided verbal and written statements regarding their knowledge of alleged cheating in UHS Physics during the course of the 2015-2016 school year.  Principal Spofford and Mr. Bogert also met with Principal Murphy several times to inform him of the status of their investigation.  Students interviewed during the investigation, including C.M. and K.H.,  were provided with a blank “Statement Form/DASA Form” and asked to provide a statement regarding the 2016 mid-term exam.

Upon the completion of the investigation, Principal Spofford and Mr. Bogert met with Principal Murphy and presented him with the evidence, including the written statements of C.M., K.H., and other students.  Principal Murphy then determined that the 2015 mid-term exam had been compromised.  Specifically, according to respondent, the investigation revealed that the 2015 mid-term exam and other secure, electronic course materials used in UHS Physics were disseminated due to the wrongful, unauthorized access of Mr. Culp’s electronic files by a former student in the district who had taken UHS Physics during the 2014-2015 school year.  Further, the investigation revealed that the former student had approached C.M. in the fall of 2015, and offered to sell him electronic files related to UHS Physics from the 2014-2015 school year.  According to respondent, C.M., together with N.C., then paid the former student $35 for a flash drive containing the materials, of which $20 was provided by C.M.[3]   The investigation revealed that C.M. made an electronic copy of the flash drive containing the materials.  N.C. then emailed copies of the 2015 mid-term exam and other assessment materials from UHS Physics that were located on the flash drive, to several students enrolled in UHS Physics for the 2015-2016 school year, including K.H. and C.M.

According to respondent, C.M. and K.H. independently corroborated these facts in their own statements to Mr. Bogert and Principal Spofford.  As a result, it was determined that C.M. participated in the purchase of the UHS Physics course materials, including secure assessments, from a former UHS Physics student; that he accessed and reviewed the 2015 mid-term exam prior to sitting for the 2016 mid-term exam; that he received UHS Physics course materials, including assessments, from the first half of the year; and that he distributed the 2015 mid-term exam to at least one other student enrolled in UHS Physics, among other things. 

With regard to K.H., it was determined that he accessed the 2015 mid-term exam prior to the administration of the 2016 mid-term exam; and that he received and used the UHS Physics course materials, including assessments, among other things.

Because C.M. and K.H. had varying penalties imposed, it is necessary to discuss the factual background and findings pertaining to each student individually.

1. K.H.

By letter dated February 12, 2016, Principal Murphy, jointly with Principal Spofford and Mr. Bogert, notified K.H. that he had determined that K.H. used the 2015 mid-term exam to his unfair academic advantage, and further, as follows:

1. Your UHS transcript through the State University of New York at Albany will be amended to read “F” for the PHY 105 and PHY 106 courses. 
2. If you are on file at the State University of New York at Albany, a VAIR (Violation of Academic Integrity Report) will be filed and placed in your record at the State University of New York at Albany.
3. You will not be permitted to enroll in the subsequent UHS Physics course through the State University of New York at Albany titled PHY 108 and PHY 109.
4. Your North Colonie Central School District transcript for the UHS Physics course (349) will be amended to read “WF” (Withdrawn Fail), and high school credit for that course will not be awarded to you.
5. You will stay in the same class for the remainder of the school year.  However, you will only be eligible to earn 1/2 credit for the year in physics, and your transcript for the second semester will reflect an honors level (331) course, not UHS.
6. The National Honor Society committee [at Shaker High School] will be notified of this infraction.

K.H., together with his parents and legal counsel, and “expert witness,” met with Principal Murphy and Principal Spofford on or about March 3, 2016, and subsequently appealed the determination to the superintendent and met with him.

By letter dated April 7, 2016, respondent’s superintendent issued a written determination, concluding as follows:

[B]ased on my review of this matter in connection with your appeal, it is my conclusion that [K.H.] engaged in academic misconduct/cheating with respect to both the midterm examination ... administered on January 28, 2016, as well as other assessments in the physics course during the first half of the school year.  Based on my review of this matter, I have determined that the academic consequences set forth in the District’s February 12, 2016 letter to [K.H.] shall remain in place, subject only to the following modifications:

• [K.H.]’s North Colonie Central School District transcript for the UHS Physics course (349) will not read “WF” (Withdrawn Fail).  Rather, the grade of 92% that was assigned to [K.H.] for the First Quarter will remain as currently reflected on his report card, the grade for the Second Quarter has been changed from “WF” to 50%, and a grade of 0% has been assigned to the midterm examination.  Based on these grades, [K.H.]’s grade for the first semester in Physics is 47.333%, which is reported on his report card as a 47%.  These grades have been entered on [K.H.]’s report card, which is available on the parent portal.  Of note, with respect to the reported grade of 50% for Second Quarter, it is my determination that [K.H.]’s actions warranted the grade of 0% for that quarter.  However, in accordance with the practice of Shaker High School, grades of students that fall below a 50% for either of the first two quarters are adjusted to a grade of 50% for that quarter.  Accordingly, this adjustment to 50% was made to [K.H.]’s grade for the Second Quarter.
• [K.H.]’s report card and transcript for the second semester of the 2015-2016 school year will reflect continued enrollment in the University in the High School Physics course.  The report card and transcript will not reflect enrollment in an honors level course (331) as indicated in the District’s earlier letter.  As a result, [K.H.] will be eligible to earn one (1) full credit for the year in Physics from Shaker High School if he meets the District’s requirements for passing the full year course.  This change has been made to [K.H.]’s records.

The letter further advised petitioner S.H. of her right to appeal to the board within 10 days.

Petitioner S.H. subsequently appealed to the board on behalf of K.H., and on May 26, 2016, met with the board together with K.H. and their legal counsel.  By letter dated June 10, 2016, the board president upheld the superintendent’s decision to impose the academic consequences set forth in the superintendent’s April 7, 2016 letter. 

2. C.M.

With regard to C.M., Principal Murphy determined that C.M. engaged in academic dishonesty/cheating based upon his use and dissemination of secure materials from the UHS Physics Course, including the 2015 mid-term exam and teacher answer keys, and that he gained an unfair advantage by doing so.  In addition, as a result of C.M.’s participation in the purchase of the 2014-2015 UHS Physics course materials, including the 2015 mid-term exam and answer sheets, Principal Murphy determined that a five-day suspension would be also appropriate for C.M.

By letter dated February 12, 2016, Principal Murphy notified C.M. as follows:

1. Your UHS transcript through the State University of New York at Albany will be amended to read “F” for courses PHY 105 and PHY 106. 
2. If you are on file at the State University of New York at Albany, a VAIR (Violation of Academic Integrity Report) will be filed and placed in your record at the State University of New York at Albany.
3. You will not be permitted to enroll in the subsequent UHS Physics courses through the State University of New York at Albany titled PHY 108 and PHY 109.
4. Your North Colonie Central School District transcript for the UHS Physics course (349) will be amended to read “WF” (Withdrawn Fail), and local high school credit for that course will not be awarded.
5. You will stay in the same class for the remainder of the school year.  However, you will only be allowed to earn 1/2 credit for the year in physics, and your transcript for the second semester will reflect enrollment in an honors level (331) course, not UHS.
6. The National Honor Society committee [at Shaker High School] will be notified of this offense.
7. Information regarding the imposition of a suspension from school, and your rights relating thereto, will be provided to you and your parents in a separate letter.

Petitioner L.M. subsequently appealed the principal’s determination to the superintendent, and on March  4, 2016, respondent’s superintendent met with petitioner L.M., C.M., and their counsel.   

By letter dated April 7, 2016, respondent’s superintendent issued a written determination on the appeal from the imposition of academic consequences, concluding as follows:

[B]ased on my review of this matter in connection with your appeal, it is my conclusion that [C.M.] engaged in academic misconduct/cheating with respect to both the midterm examination ... administered on January 28, 2016, as well as other assessments in the physics course during the first half of the school year.  It is also my conclusion that [C.M.] facilitated other students in engaging in academic misconduct/cheating. Based on my review of this matter, I have determined that the academic consequences set forth in the District’s February 12, 2016 letter to [C.M.] shall remain in place, subject only to the following modifications:

• [C.M.]’s North Colonie Central School District transcript for the UHS Physics course (349) will not read “WF” (Withdrawn Fail).  Rather, the grade of 96% that was assigned to [C.M.] for the First Quarter will remain as currently reflected on his report card, the grade for the Second Quarter has been changed from “WF” to 50%, and a grade of 0% has been assigned to the midterm examination.  Based on these grades, [C.M.]’s grade for the first semester in Physics is 48.667%, which is reported on his report card as a 49%.  These grades have been entered on [C.M.]’s report card, which is available on the parent portal.  Of note, with respect to the reported grade of 50% for Second Quarter, it is my determination that [C.M.]’s actions warranted the grade of 0% for that quarter.  However, in accordance with the practice of Shaker High School, grades of students that fall below a 50% for either of the first two quarters are adjusted to a grade of 50% for that quarter.  Accordingly, this adjustment to 50% was made to [C.M.]’s grade for the Second Quarter.
• [C.M.]’s report card and transcript for the second semester of the 2015-2016 school year will reflect continued enrollment in the University in the High School Physics course.  The report card and transcript will not reflect enrollment in an honors level course (331) as indicated in the District’s earlier letter.  As a result, [C.M.] will be eligible to earn one (1) full credit for the year in Physics from Shaker High School if he meets the District’s requirements for passing the full year course.  This change has been made to [C.M.]’s records.

The letter further advised petitioner and her husband of their right to appeal to the board of education within 10 days.

Petitioner and her husband appealed to the board, and in a letter dated June 10, 2016, the board president informed them that the board had decided not to vacate or modify the superintendent’s decision on the imposition of academic consequences.

In the interim, respondent also proceeded with a suspension of C.M. from school. In a written notice dated February 11, 2016 and signed on February 12, 2016, Principal Murphy notified C.M. and his parents of his decision to suspend C.M. from school for five days: February 22, 23, 24, 25 and 26, 2016.  The written notice informed petitioners of their right to an informal conference and on March 11, 2016, an informal conference was held and attended by petitioner L.M., C.M., and their attorney.  Principal Murphy, Principal Spofford, and Mr. Bogert also attended.  However, it appears from the record that in February 2016 petitioner had appealed both the imposition of the academic penalty and the suspension to the superintendent.  There is no evidence in the record that C.M. began to serve his suspension until after the informal conference was held.

By letter dated March 11, 2016, Principal Murphy notified C.M. and his parents of his decision to suspend C.M. from school for five days:  March 11, 14, 15, 16, and 17, 2016.  He further informed C.M.’s parents of their right to appeal to the superintendent within five days.  Principal Murphy attests in an affidavit that C.M. subsequently served his full five-day suspension. 

In a second letter dated April 7, 2016, respondent’s superintendent issued a written determination with respect to the appeal of the short-term suspension, concluding as follows:

[B]ased upon my review of this matter in connection with your appeal, it is my conclusion that [C.M.] engaged in academic misconduct/cheating with respect to both the midterm examination ... administered on January 28, 2016  as well as other assessments in the physics course during the first half of the school year.  It is also my conclusion that [C.M.] facilitated another student in engaging in academic misconduct/cheating.  Based on my review of this matter, it is my determination that [C.M.]’s five (5) day suspension from Shaker High School should not be overturned.

The letter further advised C.M. and his parents of their right to appeal to the board within 10 days from the date of the superintendent’s letter.

Petitioner L.M. and her husband subsequently appealed to the board, and on May 26, 2016, they and their attorney met with the board.  By letter dated June 10, 2016, the board president informed them that the board had decided not to vacate or modify the superintendent’s decision upholding the five-day suspension of C.M. pursuant to Education Law §3214.

This appeal ensued.  Petitioners’ request for interim relief was denied on August 26, 2016.

Petitioners assert that respondent failed to support its findings and evidence with competent and substantial evidence; that respondent’s investigation was flawed; and that respondent erred by allowing the 2015 mid-term exam to be used again for the 2016 mid-term exam and that the 2015 mid-term exam was entirely sourced from the Internet.  Petitioners request, among other things, that all academic penalties against C.M. and K.H. be vacated.   With respect to C.M., petitioners request that any reference to C.M.’s suspension be vacated and removed from C.M.’s records.

Respondent generally denies any wrongdoing and asserts that the appeal should be dismissed for failure to state a claim upon which relief may be granted.  Respondent asserts that petitioners have failed to demonstrate that the academic consequences imposed by the school district on C.M. and S.H. were arbitrary, capricious, or unreasonable.    Respondent further contends that its determination to suspend C.M. was based on competent and substantial evidence and should not be disturbed.  Respondent also objects to petitioners’ submission of a series of reply affidavits in lieu of a reply and the submission of an additional affidavit and exhibits with petitioners’ memorandum of law and argues that petitioner’s request for permission to submit another supplemental affidavit pursuant to §276.5(a) of the Commissioner’s regulations.  Respondent argues that the reply affidavits go far beyond responding to respondent’s affirmative defenses and improperly seek to buttress allegations in the petition and belatedly add new arguments and claims that should have been in the petition.  Respondent contends that the additional affidavit submitted with the memorandum of law should be rejected because prior permission of the Commissioner to serve and file it was not obtained, as required by 8 NYCRR §276.5(a) and it too improperly seeks to raise new arguments and claims that should have been raised in the petition.  Finally, respondent contends that petitioners should not be granted permission to serve and file the supplemental affidavit because it seeks to add assertions not previously raised in the petition, and attempts to raise new issues and introduce new exhibits that are not relevant to the disposition of this appeal.

I must first address the procedural issues.  Respondent asserts that petitioners have not submitted a verified reply to its answer but, instead, have improperly submitted  six reply affidavits sworn to on August 1, 2016 and a seventh affidavit sworn to on August 2, 2016, each of which were served within the time prescribed for service of a reply. Respondent asserts that the reply affidavits are an impermissible pleading under the Commissioner’s regulations.  Regulations of the Commissioner of Education allow a petitioner to submit a reply in response to new material and affirmative defenses contained in an answer (8 NYCRR §§275.3 and 275.14).  Although respondent is correct that a reply affidavit itself is not specifically contemplated as a reply under Commissioner’s regulations, I have accepted the reply affidavits for consideration in the appeal to the extent they respond to new material raised in the answer (see Appeal of Patel, 57 Ed Dept Rep, Decision No. 17,259).  However, respondent further contends that petitioners’ reply affidavits contain new material that was not raised in the original petition and may not be introduced in a reply or in reply affidavits that are in the nature of a reply.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply affidavits, 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.

With their memorandum of law, petitioners submitted another affidavit of petitioner L.M. sworn to on September 2, 2016, with a series of exhibits.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Petitioners did not seek and obtain permission of the Commissioner pursuant to 8 NYCRR §276.5(a) to serve and file this additional affidavit and I decline to accept such affidavit or the exhibits attached thereto for filing.[4]  Moreover, I have not considered those portions of the memorandum of law that make allegations relating to such affidavit and exhibits or that attempt to raise issues not raised in the petition or a reply.

Petitioners submitted yet another supplemental affidavit from petitioner L.M. sworn to on October 24, 2016 and in this instance sought permission of the Commissioner to serve and file it pursuant to §276.5(a).  However, §275.6(a) requires that an application to file an additional affidavit explain why the affidavit is necessary, and petitioners make no such showing.  Instead, they cite to another appeal decision, Matter of Zaccaro (51 Ed Dept Rep, Decision No. 16,336), and assert that an additional affidavit was accepted in similar circumstances, which is not the case.  In fact, in that appeal, the Commissioner denied the respondent’s request to submit additional documentation, but accepted an affirmation in response to a directive by my Office of Counsel.  In this case, the supplemental affidavit attempts to establish, based on respondent’s response to a Freedom of Information Law request, that respondent’s subscription for “Wizard TM” had expired, so that use of the 2015 mid-term exam in 2016 constituted a copyright violation.  That issue is beyond the scope of the petition in this appeal and thus is not necessary to a determination, and for that reason I decline to accept the supplemental affidavit for filing in this appeal.

Finally, petitioners submitted a reply memorandum of law and requested permission of the Commissioner pursuant to 8 NYCRR §276.5(a) to serve and file it. Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  A reply memorandum, however, may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).  Here, petitioners do not explain why they believe a reply memorandum is necessary to a determination of this appeal, nor have they explained what issues the reply memorandum would address.  They have also failed to provide a copy of their proposed reply memorandum.  Petitioners had an opportunity to, and did, submit a 31-page memorandum of law after the service of respondents’ answer; therefore, I decline to allow petitioners to submit a reply memorandum of law (see e.g. Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).

Turning to the merits, petitioners assert that C.M. and K.H. were deprived of due process with respect to the academic consequences imposed.  Petitioners and C.M. and K.H., however, are not entitled to a full evidentiary hearing under Education Law §3214 with respect to the academic consequences imposed, since this appeal in that regard involves grade reductions, not a disciplinary suspension (Appeal of a Student With a Disability, 48 Ed Dept Rep 94, Decision No. 15,802, aff’d sub nom. Fourman v. Mills, et al., Sup. Ct Albany Co., December 31, 2008; Appeal of Megan M., 38 id. 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293). 

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 petitioners 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 record indicates that petitioners and C.M. and K.H. were given multiple opportunities to meet with school officials, while represented by counsel, to discuss the incident and provide explanations.  The record indicates that, following the imposition of academic consequences by Principal Murphy, petitioners requested and were granted meetings with Principal Murphy and Mr. Bogert.  During the meetings, Principal Murphy and Principal Spofford explained the district’s findings to C.M. and K.H. and their parents.  In addition, petitioners had an opportunity to appeal Principal Murphy’s determination to respondent’s superintendent.  Petitioners had an additional opportunity to present an appeal to respondent board, and did meet with the board to present their arguments.  On this record, it appears that petitioners have had a full and fair opportunity to present C.M. and K.H.’s version of the incident. 

As to the imposition of academic penalties, decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (see Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, Decision No. 16,624; Appeal of B.M., 46 id. 550, Decision No. 15,592; Appeal of Shaver, 38 id. 570, Decision No. 14,096; Appeal of Krom, 37 id. 459, Decision No. 13,905).  Education Law §1709(3), in conjunction with Education Law §1804, gives boards of education of central school districts broad authority "to prescribe the course of study by which the pupils of the schools shall be graded and classified ....” I will not substitute my judgment for that of school officials on a student’s grade absent a clear showing that the determination was arbitrary, capricious, or unreasonable (Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, 16,624; Appeal of a Student With a Disability, 48 id. 94, Decision No. 15,802; aff’d sub nom. Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526; Appeal of T.M. and A.M., 45 id. 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Schmitt, 39 id. 617, Decision No. 14,329).  Where a student is found to have compromised the integrity of even one portion of an examination, a grade of zero, after a full investigation by the school district of the circumstances surrounding the grade, and after the student had an opportunity to present his or her version of the incident, is not arbitrary or capricious (see Appeal of D.F. and N.F., 53 Ed Dept Rep, Decision No. 16,624; Appeal of a Student With a Disability, 48 id. 94, Decision No. 15,802; aff’d sub nom. Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of K.K. and E.K., 47 id. 301, Decision No. 15,703; Appeal of Thomas and Judith K., 30 id. 245, Decision No. 12,450).

The record indicates that respondent conducted an initial investigation over the course of three weeks, which included interviews of nearly 30 students as well as written statements.  Following the investigation, respondent concluded that C.M. and K.H. each received and used the secure 2015 mid-term exam materials, as well as other assessment materials used in UHS Physics during the first half of the school year, prior to the administration of the 2016 mid-term exam.  As petitioners argue, using past test materials that are publicly available as study aids would not constitute cheating or academic misconduct. In this case, however, both C.M. and K.H. admit in their affidavits that on January 28, 2016 the 2015 mid-term examination was openly shared in an email file among multiple students in the school library.  They also admit that the 2015 mid-term examination was among the materials they used to study for the 2016 mid-term examination.

According to respondent, this determination was based primarily upon the corroborating testimony of other UHS Physics students interviewed during the investigation.  For example, based on several sources, respondent concluded that students in the UHS Physics course who had access to the 2015 mid-term exam were aware of its significance and that they should not have possession of it.  The investigation revealed that there was “significant discussion” in the library media center on the day of the exam that students who were reviewing the 2015 mid-term exam stated that they should keep that fact quiet; that a student who received the electronic files from N.C. told another student that he was going to get a score of 100% on the midterm exam because of those materials; that another student who had received the materials from N.C. stated that he and other students understood that they possessed something “they should not have had”; and that same student told another student the day prior to the examination that “I have some questions that ‘might appear’ on the midterm” and when that student responded that “I don’t want to cheat”, the student encouraged him to meet at school the next morning and he would not “regret it.”

The investigation revealed that the former student had sold the secure materials to N.C. in the 2015-2016 UHS Physics course, and that N.C. then emailed copies of the 2015 mid-term and other assessment materials from the UHS Physics course that were located on the flash drive, to several students enrolled in UHS Physics for the 2015-2016 school year, including C.M. and K.H.  C.M.’s statements to Principal Spofford and Mr. Bogert corroborated this evidence.  C.M. also confirmed that some of the assessment materials from the first half of the year that he received were identical to the assessments given in UHS Physics.  In his written statement, C.M. stated that he was told by a classmate that someone had last year’s mid-term exam and he asked if it could be sent to him as he intended to use it as practice for the mid-term.  He stated that he opened the 2015 mid-term exam on the morning of the 2016 mid-term, though he did not know that it was identical to the 2016 mid-term exam.  Principal Spofford’s and Mr. Bogert’s notes both indicate that C.M. told them that he had not shared the file containing the 2015 mid-term with anyone else, but then admitted that he had shared it with another student.

In his written statement, K.H. does not address whether he received and studied the 2015 mid-term exam but acknowledges that there had been rumors floating around about cheating on the UHS Physics mid-term.  Based on statements from K.H. and N.C., respondent determined that K.H. had accessed the 2015 mid-term exam prior to taking the 2016 mid-term, and this was corroborated by statements made by K.H. to Superintendent Corr at the appeal meeting and by K.H. himself in his affidavit submitted with the petition, even though the notes taken by Principal Spofford and Mr. Bogert indicate that K.H. initially denied receiving and reviewing the 2015 mid-term prior to taking the 2016 mid-term.  Both Principal Spofford and Mr. Bogert attest that K.H. had admitted to receiving other emails containing tests and quizzes from the UHS Physics course earlier in the year.  Their notes also indicate that K.H. told them that he was studying with other students in the library on the morning of the 2016 mid-term.  They also attest that K.H. told them he recognized that some of the questions on the 2016 mid-term were familiar and that he never alerted his teacher or anyone else in the district.

Additionally, a photograph of a computer screen taken in the library on the morning of the 2016 mid-term exam shows an email from N.C. with electronic files containing the 2015 mid-term as attachments, with the teacher’s copy prominently noted.   Principal Spofford and Mr. Bogert each attested that N.C. told them that C.M., a student who commented about having questions that “might appear” on the 2016 mid-term exam, and a student who made a reference about obtaining a score of 100% on the 2016 mid-term exam, all used these materials to study together on the morning of the 2016 mid-term exam. 

 Petitioners argue that C.M. and K.H. did not engage in academic dishonesty because they never had possession of a copy of the 2016 mid-term exam labelled as such, and did not know that the 2015 mid-term would be reused in its entirety as the 2016 mid-term exam. Such arguments are unavailing because knowing possession and use of a secure examination, with a teacher’s answer key, without permission of the teacher or another school official is itself a form of academic dishonesty.  Such conduct confers an unfair advantage upon those who possess such materials and subverts the academic process.[5]  As noted, the record indicates that students in the UHS Physics class were aware that they should not have had access to the 2015 physics mid-term.  Under the circumstances of this case, C.M. and K.H. knew or should have known that they should not have been reviewing copies of past assessments that were obtained surreptitiously from a former student and, in C.M.’s case, were obtained with money passing to the former student.  On this record, it is clear that other students in the class perceived this to be cheating and believed that having the prior year’s mid-term exam would enable the recipients to score very highly on the 2016 mid-term.  It strains credulity to believe that any student who sees an email sent by another student with electronic files containing a prior year’s mid-term exam with a teacher’s copy prominently displayed would not realize that he or she should not possess that examination unless it was obtained from his or her teacher. 

I also reject petitioners’ argument that the academic penalties should be set aside because respondent’s Student Handbook, in addressing cheating on examinations, does not address the possession and review of a secure prior year’s examination.  Petitioners point out that the portion of the Student Handbook on cheating deals exclusively with cheating while an examination is being administered and is completely silent about cheating by obtaining test questions and/or answers on an examination before the examination is administered.  While I agree that it would be better practice to address both circumstance in a written policy, petitioners have not established that respondent’s failure to define every possible form of cheating or academic dishonesty in a written policy violates due process or is otherwise unlawful.  I note in this regard that Education Law §225 sets forth various unlawful acts with respect to examinations held in accordance with the Education Law or the rules of the University of the State of New York. Education Law §225(4) explicitly makes possession of question papers to be used in an examination at any time prior to the date set for the examination unlawful unless duly authorized by the Commissioner or the Board of Regents, and Education Law §225(6) makes unlawful the use in an examination of questions so obtained prior to the examination.  The principle of Education Law §225, that possessing and/or using copies of a secure examination prior to the examination is a form of cheating or academic misconduct, is self-evident and must extend to local examinations such as the UHS Physics mid-term examinations.

Contrary to petitioners’ arguments, I do not find that the academic penalty imposed was excessive or unreasonable. Respondent’s superintendent made reasonable adjustments to the penalty, assigning both C.M. and K.H. a grade of “0” on the mid-term examination that would not appear on their transcript, but a grade of 50 percent for the second quarter, while allowing both C.M. and K.H. to complete the course and receive credit.  Based on the record before me, I cannot conclude that the decision to impose these academic consequences upon C.M. and K.H. was arbitrary, capricious, or unreasonable.

With respect to C.M.’s short-term suspension, petitioners contend that C.M. was denied due process because no hearing was held.  It is well-settled that any disciplinary procedures used in school must meet minimum standards of fairness and due process (see Goss v. Lopez, 419 U.S. 565; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of L.T., 50 id., Decision No. 16,242; Appeals of McMahon and Mosely, et al., 38 id. 22, Decision No. 13,976).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897).  However, there is no hearing right under Education Law §3214 for a student who is suspended for a period of less than five days, though due process requires that the student be provided notice of the charges against him or her, an explanation of the evidence against the student and an opportunity to present his or her side of the story (Goss v. Lopez, 419 U.S. 565, 581).

Accordingly, 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., 48 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 pupil's 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]).

With respect to C.M.,[6] petitioners do not challenge the sufficiency of the written notice dated February 11, 2016 and signed on February 12, 2016, and in any case such notice complies with the requirements of 8 NYCRR §100.2[l][4].  The record indicates that C.M. and his parents were provided an informal conference, as required by Education Law §3214[3][b][1], prior to the commencement of the suspension.  I find that C.M. and his parents were afforded ample opportunity to discuss the evidence against C.M. and to present his side of the story, both in the informal conference and the appeals process, which included meetings with the superintendent and the board.  Thus, I find that petitioners have failed to meet their burden of establishing that C.M. was not provided with due process in accordance with Education Law §3214.

Further, petitioners contend that respondent’s decision to suspend C.M. must be vacated and expunged from his record because it is not supported by competent and substantial evidence.  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). 

The facts relating to the conduct for which C.M. was suspended are set forth above in connection with the discussion of the academic penalties imposed upon him, and will not be repeated in their entirety here.  The record indicates that respondent concluded, based largely upon statements made to them by C.M. and by other students, that C.M. had participated in the purchase of UHS Physics course materials, including the secure 2015 UHS Physics mid-term exam, from a former student and that he accessed and reviewed the secure 2015 UHS Physics mid-term exam prior to taking the 2016 mid-term exam, that he distributed electronic files containing the 2015 UHS Physics mid-term exam, and that he never informed his teacher or any other school employee or officer after the 2016 mid-term exam that the 2016 mid-term exam was identical to the 2015 mid-term exam or that he possessed the 2015 mid-term exam.  While petitioners disagree with respondent’s conclusions, they have failed to meet their burden of establishing that respondent’s determination was not supported by competent and substantial evidence.  

This case turns largely on credibility — despite evidence from other students’ statements, C.M. denies participating in the purchase of the flash drive containing the 2015 UHS Physics mid-term exam and denies any knowledge that his possession of that secure examination was improper or constituted cheating or academic fraud.  With respect to findings of fact in matters involving the credibility of witnesses, it is well-settled that 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).  Where, as here, no hearing has been held, the same principle applies to credibility determinations by school officials in imposing short-term suspensions — they have questioned the students involved and are in the best position to assess their credibility.  Petitioners have not proven that respondent’s acceptance of the statements of other students over those of C.M. are inconsistent with the facts.  Viewing the totality of the evidence in the record, it is clear that C.M. was directly involved in surreptitiously obtaining an electronic copy of the secure 2015 UHS Physics mid-term exam from a former student, that he used it to study for the 2016 mid-term  exam when he knew or should have known under the circumstances that it was improper for him to possess it.  The fact that he did not know that the secure 2015 UHS Physics mid-term exam would be used in its entirety as the 2016 mid-term exam does not exculpate him from his behavior, which involves a form of academic fraud or cheating.

Although not entirely clear, petitioners appear to object to the hearsay nature of some of the evidence relied upon by respondents, arguing that C.M. is entitled to a presumption of innocence and that such principle has been violated because there is no direct evidence of C.M.’s guilt.  However, 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).  Respondent could properly rely upon hearsay evidence as well as circumstantial evidence, and I am not persuaded that respondent failed to afford C.M. the basic presumption of innocence of wrongdoing until his guilt was established. The prior Commissioner’s decisions cited by petitioners for this proposition, Matter of DeVore, 11 Ed Dept Rep 296, Decision No. 8,469; and Matter of Cuffee, 7 id. 60, Decision No. 7,816 are distinguishable.  Matter of Cuffee (7 Ed Dept Rep 60, Decision No. 7,816) involved an expulsion of a student without formal notice and without an opportunity for a hearing.  Matter of DeVore (11 Ed Dept Rep 296, Decision No. 8,469) involved a long-term suspension based solely on the superintendent’s knowledge of the student’s arrest for possession of drugs and his refusal to answer the superintendent’s questions, and no evidence was introduced by the district at the hearing.  Here, in contrast, though no hearing was required, respondent relied upon multiple sources of evidence relating to C.M.’s guilt, including admissions by C.M., and afforded C.M. ample opportunity to rebut its finding of guilt.  The school officials made reasonable inferences about C.M.’s guilt consistent with the evidence they had before them, which they were entitled to do (see Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133, 141).

Finally, 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 find that the penalty of a five-day suspension for C.M.’s actions in engaging in academic fraud/cheating is not so excessive as to warrant substitution of my judgment for that of respondent.

I have considered petitioners’ remaining contentions and find that they have no merit.

THE APPEAL IS DISMISSED.

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