Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Coxsackie-Athens Central School District regarding student discipline.

Decision No. 17,652

(June 12, 2019)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Coxsackie-Athens Central School District to impose discipline on his son (“the student”).  The appeal must be sustained in part.

On Tuesday, October 30, 2018, another student in respondent’s high school emailed three video clips to the high school principal prior to the beginning of the school day.  This email stated: “hello, I recently saw this on snapchat and figured that it should be reported to the school for safety.”  The video clips portrayed the student making statements about placing a bomb in the high school.  According to the record, the video clips were excerpts from a larger conversation between the student and several classmates which occurred via a social media application, Snapchat, on the evening of October 29, 2018.  It appears from the video clips that an individual recorded the social media conversation on a cellphone, played the video clips on a cellphone, and used another device (likely another cellphone) to record the sound and audio of the student speaking on the cellphone.  In two of the recordings, the individual who recorded the videos stops the video of the student, presses a button on the phone, and the video resumes playing.  The record further reveals that the student who sent the clips to the principal was not a party to the underlying Snapchat conversation.

In the video clips, the student is portrayed making the following statements:

Clip 1. “F*** that, I’m bombing the school.”

Clip 2. “When ... I was gonna place it where ... they [the user closes the video clip and opens another clip] ... That’s what I’m talking about right now.  I’m’a place a bomb, where no one’s gonna be ....”

Clip 3. “It’s me who planted it, and I’m just gonna be the one who walks out of the school, who’s like [the user closes the video clip and opens another clip] ... when the bomb goes off.  So then, they won’t know it was me.”

The record reflects that the conversation from which these clips were derived no longer exists on Snapchat, due to the nature of postings on the social media program, and there is no indication in the record that any copy of the entire conversation exists.

Upon receipt, the principal informed the superintendent of the video clips.  Additionally, after contacting the student’s mother and learning that the student was at home, the principal told the student’s mother that she “needed her to keep [the student] home.”

The assistant high school principal subsequently contacted the police.  A police officer arrived at the school and determined that bomb-sniffing dogs should examine the school.  The school issued a “hold in place” order during second period while the dogs examined the schools.  During the hold in place order, students received instruction as scheduled but students and staff were prohibited from leaving their rooms.  The “hold in place” order lasted approximately 30-35 minutes.  When the police investigation revealed no evidence of a bomb, the school day resumed as normal.  The high school principal indicated that she and other administrators spent approximately half the day on October 30, 2018 dealing with the bomb threat.

The record contains a written notice dated October 30, 2018 from the high school principal indicating that the student was suspended for five days based upon making a “Bomb Threat.”  This written notice further explained that “[t]he administration received video of [the student] making claims about placing a bomb in the school.”  There is no evidence in the record concerning the circumstances under which this written notice was provided to the student’s parents.

In a letter dated October 31, 2018, the superintendent indicated that respondent would commence a long-term suspension hearing based upon the student’s conduct.  The hearing, presided over by a hearing officer, convened on November 5, 2018.  In a written report dated November 7, 2018, the hearing officer recommended that the student be found guilty of the charged conduct and suspended for the remainder of the 2018-2019 school year.[1]  The superintendent adopted the hearing officer’s recommendations concerning guilt and penalty in a letter dated November 8, 2018.  Petitioner appealed this determination to respondent.  In a letter dated January 18, 2019, respondent’s district clerk indicated that respondent dismissed petitioner’s appeal and upheld the determination of the superintendent.  This appeal ensued.

Petitioner explicitly challenges the student’s long-term suspension and, in so doing, alleges that respondent violated Education Law §3214 and the student’s due process rights when it imposed the short-term suspension.  With respect to the short-term suspension, petitioner argues that he was not afforded an opportunity for an informal conference with the principal prior to imposition of the student’s suspension.  With respect to the long-term suspension, petitioner contends that the district failed to produce competent and substantial evidence of the student’s guilt.  Petitioner further contends that the hearing officer unreasonably declined to issue subpoenas for the attendance of certain student witnesses at the hearing.  Although petitioner does not deny that the video clips portray the student, he contends that the testimony of the student witnesses would have placed the student’s comments in context.  Petitioner seeks expungement of the short and long-term suspensions from the student’s record.

Respondent contends that the appeal must be dismissed as moot because the student graduated in January 2019.  Respondent further contends that its determination is supported by competent and substantial evidence and that petitioner’s objections are without merit.

Initially, the appeal must be dismissed, in part, 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, No. 15,940; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The record indicates that the student graduated from respondent’s district in January 2019.  Thus, to the extent that his suspension has been served – and, further, is no longer required to be served due to his graduation – any claim regarding the appropriateness of the penalty is moot (see e.g. Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of Kainz, 38 id. 339, Decision No. 14,049).  However, petitioner also seeks expungement of the suspension from the student’s record, and this claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

With respect to the student’s short-term suspension, petitioner alleges that he did not receive an “opportunity to question complaining witnesses ....”  Petitioner further asserts that such an opportunity “was not offered by the Principal before the short-term suspension was imposed ....”  Although respondent denies this allegation in its answer, it merely states that “the Principal suspended [the student] on October 30, 2018 pending a Superintendent’s hearing ....”  The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id., Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

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, the written notice dated October 30, 2018 did not, as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), apprise petitioner of his right to an informal conference with the principal or his right to question complaining witnesses (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,503; Appeal of S.K., 56 id., Decision No. 17,031).  Indeed, there is no evidence in the record indicating that petitioner was afforded the opportunity to request, or received, an informal conference with the principal or an opportunity to question complaining witnesses prior to imposition of the student’s suspension as required by Education Law §3214(3)(b)(1).  Although the record reflects that the principal informed the student’s mother of the student’s suspension by telephone, there is no evidence that she apprised either of the student’s parents of their right to an informal conference with the principal at which they could question complaining witnesses.  Moreover, even assuming that the principal had so informed petitioner or the student’s mother, as indicated above, oral communication with a parent regarding a suspension is not a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).  Therefore, the short-term suspension notice is defective on its face and the short-term suspension must be expunged from the student’s record (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,553; Appeal of a Student with a Disability, 58 id., Decision No. 17,503).[2]

With respect to the long-term suspension, petitioner first argues that the conduct in which the student engaged did not violate respondent’s code of conduct.  To the extent petitioner argues that the notice of charges did not identify the specific portion of respondent’s code of conduct which the student violated, there is no requirement that a disciplinary notice cite a specific provision of respondent’s code (Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384; Appeal of L.L., 45 id. 217, Decision No. 15,306).  The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist., 91 NY2d 133).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist., 91 NY2d 133; Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).  

Here, the October 31, 2018 notice of charges indicates that the charge against the student was as follows:

On October 30, 2018, the administration received a video of [the student] making claims about placing a bomb in the school.

I find that this language provided sufficient information for petitioner and the student to prepare an effective defense.  Indeed, the audio recording of the long-term suspension hearing reveals that petitioner understood that the charges against the student were based on comments he made in a video posting concerning a bomb in respondent’s high school.  Thus, to the extent petitioner challenges the notice of charges as insufficient to apprise him of the conduct with which the student was charged, this argument is without merit.

The record further supports a finding that the student’s conduct violated respondent’s code of conduct.  As stated above, there is no requirement that a disciplinary notice cite a specific provision of respondent’s code (Appeal of S.Z. and K.Z., 52 Ed Dept Rep, Decision No. 16,384; Appeal of L.L., 45 id. 217, Decision No. 15,306).  The record reflects that respondent’s code of conduct, on pages 23 and 24 at paragraph “D,” states that students may be subject to disciplinary action when they “[e]ngage in conduct that is violent.”  The code of conduct cites as an example of violent conduct: “[t]hreatening to use any weapon as noted in the definition of weapon in Section II.”  “Weapon,” in turn, is defined in Section II of the code of conduct to include, among other things, an “explosive or incendiary bomb.”  Thus, respondent’s code of conduct explicitly prohibits threatening to use a bomb.

In addition, the code of conduct, on pages 24 and 25 at paragraph “E”, prohibits behavior which “endangers the safety, morals, health or welfare of others,” and on page 23 at paragraph “C” prohibits “conduct that is disruptive.”  Both of these definitions encompass the student’s conduct here.  Thus, I find that the student’s conduct – recording and transmitting a video containing a threat of placing a bomb in respondent’s high school – clearly violated the prohibitions contained in respondent’s code of conduct and petitioner’s son had sufficient notice that his conduct was prohibited despite respondent’s failure to identify the specific provisions of the code that he violated (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,610).

To the extent petitioner complains that the student could not be punished for his conduct because it occurred off-campus, prior Commissioner’s decisions have upheld the suspension of students for off-campus conduct (Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).  Case law has also recognized that students may be disciplined for conduct that occurred outside of the school that may endanger the health or safety or pupils within the educational system or adversely affect the educative process (Matter of Coghlan v. Bd. of Educ. of Liverpool Cent. School Dist., 262 AD2d 949, citing Pollnow v. Glennon, 594 FSupp 220 aff’d 757 F2d 496; Appeals of A.F. and T.P., 56 Ed Dept Rep, Decision No. 16,997; Appeal of W.T., 46 id. 363, Decision No. 15,534).

Here, in the video clips, the student made specific threats regarding a bomb with respect to respondent’s high school.  The record reflects that the student participated in a group conversation in a chatroom containing 16 other high school students.  Under these circumstances, the student’s reference to the “school” can only be understood as a reference to respondent’s high school, and petitioner does not argue otherwise on appeal.  Thus, on this record, I find that it was reasonably foreseeable that the message, which contained a threat to place a bomb in respondent’s high school, would be shared with other students at the school, in turn creating a risk of substantial disruption of the operation of the school (see Appeal of M.B. and A.W., 57 Ed Dept Rep, Decision No. 17,378 [holding that it was reasonably foreseeable that a text message sent to three students, which contained a threat to kill, would be shared with other students at the school]).  Although respondent was not required to prove that actual disruption occurred (see Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581), the record nevertheless shows that disruption occurred in the form of a State Police K-9 unit searching the district’s schools, the resulting “hold in place order,” and the diversion of school administrators from their normal duties to address the receipt of the bomb threat.

Petitioner next argues that the district failed to prove the charges against the student 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).

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).

At the hearing, the district introduced the testimony of the principal, who indicated that she was familiar with the student and that the individual portrayed in the video clips was the student.  The district also introduced the video clips into evidence at the hearing.  Although the student pled “not guilty” at the hearing, petitioner admitted in cross-examination at the hearing that the student in the video clips is his son.  In any case, petitioner does not contend on appeal that the student is not the individual portrayed in the video clips.  Therefore, I find that the district proved, by competent and substantial evidence, that the student engaged in the conduct which formed the basis for the disciplinary charge against him.  Although the student also asserted that his conduct was intended as a joke and that he did not know any other students were frightened by his statements, whether the student intended the conduct as a joke or never intended to carry out the threat is irrelevant to a finding of guilt on the charge against him (Saad-El-Din v. Steiner, 101 AD3d 73; Cuff v. Valley Cent. Sch. Dist., 677 F3d 109 [whether a student intended a threat as a joke or never intended to carry it out is irrelevant to a determination of whether a resulting suspension violated his constitutional right to free speech]; see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of R.T. and S.T., 53 id., Decision No. 16,581;).

To the extent petitioner claims that respondent impermissibly relied in part on hearsay statements by other students who participated in the video chat rather than direct testimony from these students, this claim is without merit.  As noted above, hearsay alone may constitute competent and substantial evidence in a student discipline proceeding (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133).

Petitioner further argues that the video recordings transmitted to the principal, which were introduced into evidence at the hearing, were unreliable and did not constitute competent and substantial evidence of the student’s guilt.  This claim, however, lacks merit because, as explained above, petitioner admitted that the student is portrayed in the video clips and made the statements contained therein.  Whether or not the student who recorded the video clips selectively saved only the portions of the chat containing the bomb threats is irrelevant to a finding of the student’s guilt of making the bomb threats, which petitioner has conceded.  Regardless of the motivation of the student who forwarded the video clips to the school district or the student’s motivation in making the threatening statements, it is undisputed that the student made threats to place a bomb in the high school during a video chat with other students from the school.  Thus, I find that the district established the student’s guilt based upon the evidence demonstrating that he made the threatening statements in the video clips irrespective of the content of the remainder of the video chat.

However, even assuming, arguendo, that the district’s case rested upon the video recordings alone, I would find petitioner’s objections to be without merit.  Initially, petitioner suggests that the video clips were unreliable because they were “not in the original format” and constituted “brief excerpts from the original clips.”  Petitioner further states that evidence such as this “is susceptible to manipulation or alteration.”  Crucially, however, petitioner does not contend, and has not proven, that the video clips at issue were, in fact, manipulated or altered.  Petitioner merely appears to argue that the clips were taken from a longer video recording and that, when placed in context, the entire recording would reveal that the student was joking and responding intemperately to perceived injustices concerning other student suspensions issued by respondent.  However, as indicated above, whether the student intended the conduct as a joke or never intended to carry out the threat is irrelevant to a finding of guilt on the charges against him; specifically, “making claims about placing a bomb in the school” (Saad-El-Din v. Steiner, 101 AD3d 73; Cuff v. Valley Cent. Sch. Dist., 677 F3d 109; see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,515; Appeal of R.T. and S.T., 53 id., Decision No. 16,581).

Finally, petitioner argues that the hearing officer erred by failing to issue subpoenas for student witnesses who, petitioner argues, possessed relevant information concerning the student’s guilt.  Education Law §3214(c)(1) provides that:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his or her behalf.

The superintendent may personally preside over the long-term suspension hearing or may designate a hearing officer to do so (Education Law §3214[c][1]).  Education Law §3214(c)(1) further provides that, at a long-term suspension hearing, “[t]he hearing officer shall be authorized to administer oaths and to issue subpoenas in conjunction with the proceeding before him or her.”

The facts of the instant appeal are materially indistinguishable from Appeal of R.T. and S.T. (53 Ed Dept Rep, Decision No. 16,581).  In that appeal, the parents requested that the hearing officer compel a student witness to offer testimony at the hearing, representing that they obtained parental consent for such testimony.  The principal of the student witness’s school refused to excuse him from school to provide testimony.  The hearing officer “defer[red] to the district” and refused to the call the student witness.  While the Commissioner held that the hearing officer erred in precluding the student witness’s testimony without sufficient justification, the Commissioner also found that such error was harmless because the student witness’s testimony would have been irrelevant to the issue of the student’s guilt in light of the student’s admission of guilt and the weight of the evidence in support of the facts underlying the charge against him (Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581).

As in Appeal of R.T. and S.T. (53 Ed Dept Rep, Decision No. 16,581), I conclude that the hearing officer erred by failing to adjourn the hearing and issue subpoenas for the student witnesses’ attendance at the hearing.  In denying petitioner’s request, the hearing officer indicated that it would be “inappropriate” to “open up” the hearing by issuing subpoenas.  The hearing officer further stated that, to the extent petitioner’s request could be interpreted as a request to adjourn the hearing to issue subpoenas for the student witnesses’ attendance, such request was denied.  The hearing officer explained that there was a “tight timeframe” governing the long-term suspension hearing and that it “need[ed] to be completed quickly.”  I do not find this reasoning persuasive.  The hearing officer appeared to assume that a long-term suspension must be completed before the expiration of the short-term suspension.  Education Law §3214(3)(c) mandates that a short-term suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination adverse to the interests of that student has been made (Ross v. Disare, 500 FSupp 928; MacDonald v. Tompkins, 67 Misc2d 338; Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419).  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110).  However, the hearing officer was not compelled to complete the hearing by the end of the student’s fifth day of suspension and any concern respondent might have about returning the student to school before a final determination is made would be irrelevant because petitioner requested the adjournment, and where a hearing is timely scheduled, but adjourned at the parent’s request, the student may remain out of school beyond five days (see Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).  Thus, I find no merit in the hearing officer’s suggestion that he was constrained by any timeline in connection with the long-term suspension hearing under the circumstances presented in this case.

However, as in Appeal of R.T. and S.T. (53 Ed Dept Rep, Decision No. 16,581), I am constrained to conclude that the hearing officer’s error was harmless under the circumstances.  At the long-term suspension hearing, petitioner indicated that he “planned on calling” four student witnesses, including the student who emailed the video clips to the principal.  On appeal, petitioner explains that he anticipates that these witnesses would have testified, among other things, that “the video was dramatically shortened to exclude exculpatory sections” and that “the ‘bomb’ statement was taken out of context and was not a threat.”  This proposed testimony, however, is not relevant to the issue of the student’s guilt.  The student’s intent in making the statements with which he was charged or other mitigating circumstances could only be relevant to the issue of the excessiveness of the penalty. However, petitioner does not challenge the excessiveness of the student’s penalty in this appeal and, as I indicated above, any claim relating to the excessiveness of the penalty has been rendered moot by the student’s graduation prior to serving the full suspension.  Therefore, under the circumstances, the hearing officer’s error was harmless and I decline to expunge the student’s suspension based upon such harmless error (see Appeal of R.T. and S.T., 53 Ed Dept Rep, Decision No. 16,581).

Finally, petitioner argues that he was denied the right to “confront and question” complaining witnesses at the hearing.  I note in this regard that petitioner appears to conflate his right to cross-examine witnesses at a long-term suspension hearing with his right to question complaining witnesses at an informal conference with the principal in connection with a short-term suspension.  Pursuant to Education Law §3214(3)(c)(1), before a student is suspended for more than five days (i.e., a long-term suspension), he or she has a right to a fair hearing that includes the right to question witnesses against the student.  The right to question “complaining witnesses,” by contrast, pertains to informal conferences which may be held in connection with short-term suspensions.  Here, petitioner was allowed to question each witness produced by the district at the long-term suspension hearing and, thus, received all of the process which he was due pursuant to Education Law §3214(3)(c)(1) (see Appeal of J.D. and J.D.,
58 Ed Dept Rep, Decision No. 17,551).[3]

Therefore, I find that respondent’s determination that the student is guilty of the charged misconduct, which involves threatening statements about placing a bomb in the school, is supported by competent and substantial evidence in the record and is not arbitrary or capricious or in violation of law.  I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s short-term suspension of the student between October 30, 2018 and November 6, 2018 be annulled and expunged from his record.

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