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An appellate panel in Albany, N.Y. on Thursday upheld as constitutionally sound the standard of proof routinely used in school suspension hearings, “substantial and competent evidence.” The Appellate Division, 3rd Department, found that the approach balances the individual rights of students subjected to the hearings and the societal interest in promoting an orderly educational environment. In a case involving the New York City Board of Education, the panel rejected an argument that the relatively low standard of evidence infringes on due process rights. The panel also said in a footnote that “we are not convinced that an individual student’s interests are more important than those of the government in providing an education to all of its children.” Board of Education v. Mills, 90751, arises out of a disciplinary matter in New York City. Last year, Supreme Court Justice Thomas W. Keegan of Albany converted a motion brought by a student and his mother into a declaratory judgment action and declared constitutional the use of the substantial and competent evidence standard. This appeal ensued, with the sole issue of whether the standard of proof in a student suspension hearing is contrary to the promise of due process. On appeal, the student and mother, identified as L.C. (1) and L.C. (2), maintained that since “substantial evidence” is relied upon in appellate review of administrative decisions, the standard at the hearing should be at least as high as “preponderance of the evidence.” Seth Grossman of Bronx Legal Services, appearing for the appellants, argued that the lower standard creates an impermissible risk that the student’s rights would be overridden by government interests. The court disagreed with both the conclusion and the premise that the individual interests of the student are superior to those of the government. Writing for the court, Justice Carl J. Mugglin said that while other courts have not previously addressed the due process claim raised here, they have consistently upheld the competent and substantial evidence standard in student suspension matters. He also said that the Court of Appeals has required a more stringent preponderance standard only in matters involving substantially more liberty and property interests than are at stake in a suspension hearing. The Court of Appeals, in 300 Gramatan Avenue Associates v. State Division of Human Rights, 45 NY2d 176 (1978), defined substantial evidence as “less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt.” It described substantial evidence as proof “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.” Justice Mugglin said that “faithful adherence to this standard of proof assures protection of a student’s constitutionally protected interests in a suspension hearing.” He was joined by Justices Karen K. Peters, Anthony J. Carpinello, Robert S. Rose and John A. Lahtinen. Assistant Corporation Counsel Ellen Ravitch defended the Board of Education.

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