I respectfully dissent and vote to confirm the determination of respondent Commissioner of Education. As the majority implicitly recognizes, it is the Commissioner’s determination that is under review, not that of the Hearing Officer (see, Matter of Strongin v Nyquist, 44 NY2d 943, 945, cert denied 440 US 901), and the former may only be annulled if it is found to be arbitrary and capricious, or without a rational basis (see, Matter of Conley v Ambach, 61 NY2d 685, 687-688; Matter of Board of Educ. v Ambach, 96 AD2d 637, 638, lv denied 61 NY2d 603). Accordingly, the determination must be confirmed unless the hearing evidence is so devastating that no rational person could conclude that the party charged was other than guilty. Inasmuch as the evidence the majority relies upon to establish that Josh Herzog actually distributed any papers on school grounds (as the Hearing Officer found) is subject to differing interpretations, the proof of his guilt is, in my judgment, far from compelling. Concededly, the hearing testimony might admit of an inference that distribution occurred on school grounds, but that is not dispositive; what is dispositive is that the evidence can also, quite reasonably, be considered as not supporting that aspect of the Hearing Officer’s decision. There being a reasonable view of the evidence underlying the Commissioner’s determination, it cannot be said to be irrational, and therefore must be sustained.
Nor was the Commissioner’s finding vis-a-vis the due process issue arbitrary and capricious. The charges preferred against Josh alleged only that he had prepared and/or distributed the offensive newspaper, acts that he did not deny having performed; as a consequence, his defense was necessarily premised on the contention that those actions were protected by the 1st Amendment. Had he been informed that the Hearing Officer would consider an unalleged additional fact—namely, that the distribution had taken place on school grounds—which arguably changed the applicable legal standard (see, Hazelwood School Dist. v Kuhlmeier, 484 US 260, 266), his defense would likely have been markedly different, focused perhaps on proof negating that fact rather than on the aforementioned constitutional argument. Inasmuch as the charges did not apprise Josh that it was conduct on school grounds, as opposed to that occurring elsewhere, that was at issue, it was not irrational for the Commissioner to conclude that he was not given fair notice of the activities for which he was to be disciplined.
Adjudged that the determination is annulled, on the law, without costs, petition granted and decision of the Superintendent of the Monticello Central School District reinstated.