Appeal of K.W., on behalf of her child, from action of the Board of Education of the Clyde-Savannah Central School District regarding student discipline.

Decision No. 18, 520

(November 12, 2024)

Ferrara Fiorenza PC, attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel

ROSA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Clyde-Savannah Central School District (“respondent”) imposing discipline on her child (the “student”).  The appeal must be dismissed.

The student attended tenth grade in respondent’s high school at the time of the events giving rise to this appeal.  On October 31, 2023, the district learned of a potential hazing incident involving members of the high school football team that occurred on school grounds.  On November 1, 2023, following an investigation, the student received an out-of-school suspension for his involvement in the incident. 

In a notice of charges dated November 2, 2023, respondent informed the student that it would convene a long-term suspension hearing on November 6, 2023.  Respondent alleged that the student, in violation of the district’s code of conduct, endangered the safety, health or welfare of other students by taking a video of a hazing incident “in the Clyde-Savannah Football Field House” and uploading it to a social media platform. 

At the hearing, the student admitted the charge against him.  The middle school principal also explained the circumstances giving rise to the appeal, testifying that a student came to him on October 31, 2024 and reported

that he was held down by two different students, and during this process, they would not let him go.  His legs were then lifted into the air, and another student struck him several times in the rear end with a broom handle with his clothes on and proceeded to do so again with his clothes then off.

Following the long-term suspension hearing, a hearing officer recommended that the student be found guilty of the charge and suspended for the remainder of the 2023-24 school year.  In a decision dated November 7, 2023, the superintendent adopted the hearing officer’s findings and the recommended penalty.  Petitioner appealed this determination to respondent, which denied her appeal on January 10, 2024.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 1, 2024.

Petitioner argues that respondent improperly suspended the student without providing the opportunity for an informal conference.  Petitioner further argues that the district did not establish the student’s guilt through competent and substantial evidence.  Finally, petitioner argues that the long-term suspension was excessive.  For relief, she requests expungement of the student’s suspension from his record.

Respondent asserts that it complied with Education Law § 3214 throughout the disciplinary process and, therefore, afforded the student adequate due process.  Respondent further maintains that petitioner has not shown that the student’s suspension was arbitrary and capricious or that the suspension was disproportionately severe.

I must first address a procedural matter.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Petitioner submitted an additional pleading and exhibit in connection with her response to respondent’s stay opposition.  I decline to accept this pleading, which sets forth contentions that should have been included in the petition or a reply.  However, I have accepted, in my discretion, the additional exhibit given its general relevance to the events giving rise to this appeal (see Appeal of Decker, 62 Ed Dept Rep, Decision No. 18,207; Appeal of G.K., 60 id., Decision No. 17,908).

Turning to the merits, petitioner first argues that respondent failed to provide adequate due process before suspending the student for five days.  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]).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 establishes that respondent verbally advised petitioner on November 1, 2023 that the student was suspended for five days.  Although petitioner contends that she was not afforded an informal conference with respondent prior to this time, respondent reasonably determined that the student’s presence in school presented a continuing danger or ongoing threat of disruption (see Appeal of J.P., 63 Ed Dept Rep, Decision No. 18,404).  As such, respondent was only required to provide notice of petitioner’s rights as soon as “reasonably practicable” (Education Law § 3214 [3] [b] [1]).  I find that respondent satisfied this requirement by providing written notice to petitioner on the following day, November 2.  Upon receipt, it was incumbent upon petitioner to request an informal conference (Education Law § 3214 [3] [b] [l] [informal conference need only be held “on request”]).  Accordingly, petitioner has failed to meet her burden of establishing that respondent failed to comply with the procedural requirements set forth in Education Law § 3214.

Next, petitioner argues that respondent did not establish the student’s guilt through 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 (Matter of Board of Educ. of Monticello Cent. School Dist. v Commissioner of Educ., 91 NY2d 133, 140-141 [1997]; Matter of Board of Educ. of City School Dist. of City of N.Y. v Mills, 293 AD2d 37, 39 [3d Dept 2002]; Appeal of M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).  The Court of Appeals has described the substantial evidence standard as “proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably probatively and logically” (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 181 [1978]; see Appeal of J.J., 46 Ed Dept Rep 270, Decision No. 15,505; Appeal of Wallen, 33 id. 313, Decision No. 13,060).

Following clarification, the student pled guilty to the charges as alleged.[1]  Where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of N.S., 57 Ed Dept Rep, Decision No. 17,268; Appeal of S.U., 57 id., Decision No. 17,159; Appeal of M.K., 48 id. 462, Decision No. 15,916).  The testimony of the middle school principal to which petitioner objects was thus superfluous to prove the student’s guilt.[2]

Finally, petitioner has not shown that the student’s suspension was disproportionately severe.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).  The test to be applied in reviewing a penalty is whether it is so shocking to the conscience as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of K.P., 61 Ed Dept Rep, Decision No. 18,055; Appeal of C.N. and C.N., 60 id., Decision No. 17,954).  This analysis generally considers the nature of a student’s offense, their age and developmental level, prior disciplinary history (if any), the extent to which suspension is necessary to ensure the safety of the school community, the extent to which the district has attempted to help the student learn to assume and accept responsibility for their behavior, and other equitable factors (see e.g. Appeal of B.A., 62 Ed Dept Rep, Decision No. 18,209; Appeal of K.P., 61 id., Decision No. 18,055; Appeal of N.V.D., 60 id., Decision No. 17,985).

Here, the student’s conduct—filming a hazing incident and sharing the video via social media—inherently threatened the safety and well-being of the student portrayed therein (Appeal of D.B., 63 Ed Dept Rep, Decision No. 18,383).  In pleading guilty to the charges, the high school principal clarified that the charge of “endangering the safety, morals, health or welfare of others” encompassed two violations of respondent’s code of conduct that prohibited:  (1) the disruption of the orderly conduct of school programs or activities; and (2) the intimidation, harassment, discrimination, or sexual intimidation of others through social media.[3]  The record indicates that the student’s conduct resulted in a substantial degree of disruption to the athletic department and the school community.  The incident was covered extensively by local news outlets, discussed repeatedly at board meetings, and resulted in criminal charges against other students involved in the incident.  While I agree with petitioner that a student cannot be suspended for a negative community reaction alone,[4] respondent was entitled to consider this evidence as the actual, foreseeable consequences of the student’s misconduct (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,834). 

I also reject petitioner’s argument that the student’s distribution of the video to the “football team” via Snapchat’s “Chat” option minimizes his culpability in this matter.  “Absent contrary evidence in the record, it is generally foreseeable that messages sent via a social media application will reach the attention of school authorities” (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,834).  The record contains no such evidence. 

Finally, petitioner correctly notes that the student had no prior disciplinary history and argues that the long-term suspension will have a negative effect on his future behavior and/or educational outcomes.  However, these factors must be balanced against the fact that, despite the student’s age (tenth grade) and developmental level, he failed to fully accept responsibility or appreciate the severity of his actions.  Although the student admitted to the charges during the hearing, he did not demonstrate any understanding of the harm he caused, instead quibbling over minor details of the incident such as how and to what extent the victim’s pants became removed.  Accordingly, petitioner has not met her burden of demonstrating that the long-term suspension is so shocking to the conscience that it must be expunged from his record.[5]

To the extent they are not addressed herein, petitioner’s remaining arguments are unpreserved or without merit.

THE APPEAL IS DISMISSED.

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