A.B. Ex Rel. Bennett v. Slippery Rock Area School District

DISSENTING OPINION BY

Judge FRIEDMAN.

I respectfully dissent. The majority, reversing the Court of Common Pleas of Butler County, holds that the Slippery Rock Area School District (School District) proved by a preponderance of the circumstantial evidence that A.B., a sixth-grade student at Slippery Rock Area Middle School (Middle School), violated the school’s terroristic threats policy by placing a bomb threat note in the girls’ bathroom; thus, the School Board had good cause to expel A.B. (Majority op. at 677.) For the following reasons, I disagree.

A.B. is a very good student with no history of attendance problems or disciplinary problems.1 (R.R. at 19a.) On Thursday, January 12, 2006, A.B. signed out of class at 8:42 a.m. to go to the girls’ bathroom. While in the bathroom, A.B. found a scrap of paper on top of the toilet’s flushing mechanism, which read, “A bomb will go off in the school tomow [sic].” (R.R. at 115a.) As she left the bathroom, AB. met another student and told her about the note. The two students informed a teacher, who notified the principal, Joseph Raykie (Principal Raykie). Principal Raykie went into the bathroom, took the note to prevent it from falling into the toilet and called the Pennsylvania State Police. (R.R. at 33a.)

Two state troopers came to investigate the matter. Principal Raykie informed the troopers that a student had come into the principal’s office that morning to report overhearing a conversation on the bus about a bomb threat. (R.R. at 43a.) The troopers interviewed several other students and determined that two girls on the bus had been talking about bomb threats at the high school. (R.R. at 44a.)

When the troopers interviewed A.B., outside the presence of anyone else, the troopers initially asked A.B. “if she had anything to do with this.” (R.R. at 46a) (emphasis added). A.B. “denied any knowledge of if.” (R.R. at 47a) (emphasis added). The troopers then showed the note to A.B. and pointed out that the “A” in the handwriting of the note was similar to the “A” in a sample of A.B.’s handwriting that the troopers had obtained. (R.R. at 47a-48a, 71a.) A.B. then recognized the note as her own; she said that she had written the note two weeks earlier as a joke and gave it to a friend, but A.B. did not know who placed the note in the bathroom.2 (R.R. at 70a.)

*680During their interrogation of A.B., the troopers admittedly lied to her by telling her that they knew she did it and that, if she would confess, “things will go a whole lot easier.” (R.R. at 60a-61a.) After two hours of questioning, (R.R. at 59a), A.B. produced the following written statement.

I wrote a bom [sic] note that says a bom [sic] will go off tomorrow about two weeks ago. I gave it to a friend just as a joke though. Someone put it in the bathroom but it wasn’t me.[3] When I went to the bathroom I saw a note on the toilet that said that but I didn’t know it was mine. So I told the teacher. I didn’t know it was mine cause I didn’t recognize it.

(R.R. at 122a.) Principal Raykie immediately suspended A.B. from school for ten days for violating School District Policy 218.2, which prohibits any student from communicating a threat to commit violence with the intent to terrorize another, to cause the evacuation of a building or to cause serious public inconvenience. (R.R. at 119a.)

One week later, on Thursday, January 19, 2006, another bomb threat note was found in the girls’ bathroom, etched into a feminine napkin container. Like the previous note, this note indicated that a bomb would go off the next day. State troopers compared the handwriting to A.B.’s handwriting and concluded that the two were not comparable. (R.R. at 38a-40a.)

I. Inadequate Findings of Fact

The School Board is a local agency, and its decision to expel A.B. is an adjudication. Big Spring School District Board of Directors v. Hoffman by Hershey, 88 Pa.Cmwlth. 462, 489 A.2d 998 (1985). School board adjudications must include all of the findings necessary to resolve the issues raised by the evidence, and where essential findings are not made, the case must be remanded so that these findings may be supplied. Kudasik v. Board of Directors, Port Allegany School District, 45 Pa.Cmwlth. 254, 405 A.2d 1320 (1979).

Based on the evidence presented at A.B.’s expulsion hearing, the School Board made only the following findings of fact.

1. The above-named student is a 6th grade student enrolled in the [School District],
2. At the time of the hearing on January 23, 2006, sufficient credible evidence was presented by the Administration to establish by a preponderance of the evidence that the above-named student en*681gaged in the conduct set forth in Exhibit “A”,[4] which is incorporated herein by reference.
3. The Board specifically finds a preponderance of the evidence that the student wrote the note (Exhibit “D”) and placed the same in the bathroom.
4. The testimony presented on behalf of the above-named student was not sufficiently credible.
5. The aforementioned conduct is in violation of the Student Code of Conduct/Student Handbook, District Policy No. 218.2 (Exhibit “H”).
6. The above-named student’s conduct has disrupted the educational program of the [School District] as follows: Staff and students needed to be screened by a wand on January 13, 2006, and the Middle School had to be swept by the bomb squad on the evening of January 12, 2006.
7. The above-named student knew or should have known that her conduct was in violation of the Student Code of Conduct/Student Handbook and the aforementioned District policyfies).
8. The above-named student knew or should have known that she would be subject to disciplinary action, including possible expulsion if the above-named student engaged in conduct that was in violation of the Student Code of Conduct/Student Handbook and/or District policyfies).

(R.R. at 124a-25a) (emphasis added). I make the following observations about the deficiencies in these findings of fact and the majority’s reading of them.

First, although there is a specific finding that A.B. wrote the note and placed it in the bathroom, (Findings of Fact, No. 3), there is no finding that A.B., or anyone else, found the note and reported it to a teacher. If the note was never found, there was never a communication of the threat to anyone and no violation of the school policy.

Second, there is only one specific credibility determination, i.e., that the testimony presented on behalf of A.B. is not credible. (Findings of Fact, No. 4.) The only witness testifying on behalf of A.B. was her father, who offered no testimony about the note. This means that the School Board made no finding rejecting any part of A.B.’s written statement, including those parts where A.B. states that she gave the note to a friend as a joke and where A.B. denies that she placed the note in the girls’ bathroom.

Third, the majority states that the School Board found the state trooper’s testimony “more credible than that of A.B.” (Majority op. at 677.) However, this is impossible because A.B. did not testify. Moreover, as the above findings indicate, the School Board made no finding about the credibility of the state trooper’s testimony.

Fourth, the majority states that the School Board logically concluded that it was more likely than not that A.B. placed the note in the bathroom based on the following circumstantial evidence: (1) A.B. initially denied that she wrote the note; (2) A.B. then admitted that she wrote the note; (3) A.B. found the note; and (4) A.B. reported the note to a teacher. (Majority op. at 678.) However, there are no findings of fact that A.B. initially denied that she wrote the note,5 that A.B. found the *682note or that A.B. reported the note to a teacher.6

Fifth, the School Board found as a fact that the “aforementioned conduct” violates the school policy against terroristic threats. (Findings of Fact, No. 5.) The “aforementioned conduct” was: (1) writing the note; and (2) placing it in a bathroom. The school policy prohibits communicating a threat to commit violence with the intent to terrorize another, to cause the evacuation of a building or to cause serious public inconvenience. However, the School Board made no finding of fact regarding A.B.’s intent.

Because the School Board has failed to make necessary findings of fact, I submit that this case, at least, should be remanded for the making of such findings. However, as explained below, I conclude that the School District failed to present sufficient circumstantial evidence to prove that A.B. placed the note in the bathroom; thus, ultimately, I see no reason to remand.

II. Inadequate Circumstantial Evidence

In relying upon circumstantial evidence to reasonably infer a factual conclusion, the evidence must be adequate to establish the conclusion and must so preponderate in favor of that conclusion so as to outweigh any other evidence and inconsistent reasonable inferences.7 Monad v. State Horse Radng Commission, 717 A.2d 612 (Pa.Cmwlth.1998).

With respect to who placed the note in the bathroom, one could draw three reasonable inferences from the circumstantial evidence: (1) A.B., acting alone, placed the note in the bathroom; (2) one or more other students placed the note in the bathroom, and A.B., being involved with the bomb threat, knows the identity of the student or students; or (3) one or more other students placed the note in the bathroom, and A.B., having no involvement with the bomb threat, does not know the identity of the student or students.

Thus, if the majority is correct that the circumstantial evidence in this case is sufficient to prove that A.B., acting alone, placed the note in the bathroom, the evidence must “tip the scale” in favor of that conclusion so as to outweigh the possibility that other students were involved. In other words, the evidence must show that it is more likely than not that A.B., acting alone, placed the note in the bathroom. For the reasons that follow, I submit it is just as likely that one or more other students placed the note in the bathroom.

First, the majority concludes that it is more likely than not that A.B., acting alone, placed the note in the bathroom because: (1) A.B. initially denied that she wrote the note; (2) A.B. then admitted that she wrote the note; (3) A.B. found the note; and (4) A.B. reported the note to a teacher. However, the majority does not *683explain why this particular evidence makes it more likely than not that A.B. placed the note in the bathroom. Given such evidence, it is just as likely that A.B. was involved with one or more other students in planning a bomb threat and that one or more of the other students placed the note in the bathroom. It is just as likely that A.B., a very good student with no history of attendance or disciplinary problems, did not initially recognize the note that she had written two weeks earlier while joking with friends and that she reported the note out of true concern for the school’s safety. In my view, the majority simply has not identified sufficient competent evidence to “tip the scale” in favor of a conclusion that A.B., acting alone, placed the note in the bathroom.

Second, the state trooper who testified for the School District did not think that A.B. placed the note in the bathroom. He testified as follows:

Q. Did she ever acknowledge that [the note] was, in fact, her note?
A. Yes.
Q. But she never said that she put it in the bathroom?
A. No, she did not.
Q. You never did get her to admit to that?
A. No, she did not.
Q. But you think that she did?
A. I believe there is something more she knows that she’s not telling us. She knows what happened to the note after she wrote it.

(R.R. at 71a-72a) (emphasis added). The state trooper’s testimony suggests that he inferred from the evidence that: (1) one or more other students was involved in the bomb threat; (2) one or more other students placed the note in the bathroom; (3) A.B. knows the identity of the student or students; and (4) A.B. is protecting the other student or students.

Third, students had been making bomb threats at the high school. On the same day that A.B. reported finding the note in the bathroom, a student reported to Principal RayMe that he overheard Middle School students talking about bomb threats on the school bus. Then, significantly, one week after A.B. was suspended as a result of her note, someone else left a similar bomb threat note in the bathroom. The discovery of a second note establishes without a doubt that at least one other Middle School student would have been capable of placing A.B.’s note in the bathroom the previous week.

Finally, the School District did not present any expert testimony to explain what would compel a good student without any history of attendance or disciplinary problems to make a bomb threat. Absent such testimony, I consider a lesson about human nature from medieval literature. In Book II of Augustine’s Confessions, Augustine tells a story from his childhood about a pear tree heavily laden with fruit. The fruit was neither tempting for its color nor tempting for its flavor. Nevertheless, late one night, Augustine and his young companions went to the tree, shook it and ran away with great quantities of the fruit. The boys ate some of the pears but fed most of them to the swine. Reflecting on this episode later in life, Augustine states, “[B]y myself alone I would not have done it — I recall what my heart was — alone I could not have done it.” Confessions, Bk. II, ch. viii, ¶ 16. Reflecting on these words and the absence of any evidence to explain why A.B. would have acted alone to carry out a bomb threat, it appears to me more *684likely than not that one or more other students placed A.B.’s note in the bathroom.

Because I conclude that the circumstantial evidence in this case does not so preponderate as to outweigh inconsistent reasonable inferences, I would affirm.

. As shown in Part I below, the School Board’s findings of fact in this case are woefully inadequate. Like the majority, which set forth its statement of "facts” based on selected portions of the record, I also present a statement of "facts” based on selected portions of the record.

. One of .the state troopers testified that A.B. identified a couple of her friends who might have had the note, but, when questioned, *680those students denied any knowledge of the note. (R.R. at 70a.) I point out that the state trooper's testimony about the friends' out-of-court statements is hearsay. Thus, there is no competent evidence to support a finding that A.B.'s friends had no knowledge of the note. See Goodman v. Commonwealth of Pennsylvania, 98 Pa.Cmwlth. 371, 511 A.2d 274 (1986) (stating that although local agencies are not bound by the technical rules of evidence, findings based solely on hearsay cannot stand).

. The majority states, "The record indicates that the janitor had cleaned the bathroom the night before, and he did not see any note at that time." (Majorily op. at 675 n. 1.) Later, the majorily repeats this "fact,” stating, "Trooper Birckbichler testified that the bathroom where the note was found had been cleaned the night before, and the janitor did not report seeing the note that evening.” (Majority op. at 676.)

However, the trooper actually testified that Principal Raykie told him that a janitor cleaned the bathroom the previous evening and that the janitor did not find a note. (R.R. at 75a-76a.) Such testimony, which involves both Principal Raykie's statements to the state trooper and the janitor’s statements to Principal Raykie, is double hearsay. Thus, it is not competent evidence to support a finding that the note was placed in the bathroom on the morning of Januaiy 12, 2006. See Goodman. I question the majority’s use of such evidence in its statement of the "facts.”

. Exhibit "A” is the hearing notice sent to A.B.'s parents, which alleged that A.B. brought a bomb threat to the Middle School on or about January 12, 2006. (R.R. at 110a.)

. I note that the record would not support such a finding. The record indicates that, before the state trooper showed the note to A.B. in order to question her about the hand*682writing, the state trooper asked A.B. whether she had anything to do with "this.” (R.R. at 46a.) A.B. denied any knowledge of "it.” (R.R. at 47a.) The question was not specifically whether A.B. wrote the note, but whether A.B. was the perpetrator, or one of the perpetrators, of the bomb threat.

. As the majority indicates, circumstantial evidence is "evidence of one fact, or of a set of facts, from which the existence of the fact to be determined may reasonably be inferred.” (Majority op. at 677 n. 8) (emphasis added). In other words, circumstantial evidence is evidence that supports findings of fact from which the ultimate finding of fact may reasonably be inferred.