Appeal of T.R. and M.D., on behalf of their son T.R., Jr., from action of the Board of Education of the City School District of the City of New York regarding student discipline.

 

 

(March 16, 2004)

 Michael A. Cardozo, Corporation Counsel of the City of New York, attorney for respondent, Abigail Goldenberg, Esq., of counsel

  MILLS, Commissioner.--Petitioners appeal a decision by the Board of Education of the City School District of the City of New York ("respondent") to suspend their son, T.R., Jr. ("T.R."), from Environmental Studies High School ("the school").  The appeal must be sustained in part.

On October 4, 2002, T.R. attempted to exit the school cafeteria"s back door during the last ten minutes of the lunch period in violation of school policy. A school aide, who was stationed at the door, informed T.R. that he was not permitted to leave.  The aide alleges that T.R. pushed him out of the way in order to exit.  T.R. alleges that he ducked under the aide"s arm and avoided physical contact.

On that same day, school authorities called T.R."s mother ("M.D.") concerning the incident.  The record does not reflect the substance of the conversation. 

On October 8, 2002, T.R. was suspended from school.  On October 11, 2002, M.D. came to the school to investigate the incident. At that time, she received a "suspension package" from school authorities.  The record does not reflect the suspension package"s contents.

A superintendent"s hearing was initially scheduled for October 15, 2002, the fifth school day of T.R."s suspension, but was rescheduled to October 30, 2002, at the school"s request. T.R. was permitted to return to school on October 15 pending the superintendent"s decision.

At the hearing, which was held before a hearing officer assigned by the superintendent, the school presented two witnesses.  The aide testified that T.R. pushed him as he exited the cafeteria"s back door, that the push resulted in a bruise to his arm, and that there were no witnesses to the incident.  A school dean testified that she briefly discussed the incident with the aide, that the aide"s written statement reflected what he said in their conversation, and that another school employee took written statements from T.R. and another student, G.I.  She further testified that she was otherwise not familiar with the investigation of the incident.

M.D., who represented T.R. at the hearing, also presented two witnesses.  G.I. testified that T.R. and he decided to leave the cafeteria, that the aide blocked them from exiting the cafeteria"s back door, and that T.R. exited the cafeteria by ducking under the aide"s arm. A school safety agent testified that on the day of the incident she heard over the school radio that T.R. had been involved in an incident, that T.R. subsequently appeared at her work station, and that she then contacted another school employee who accompanied T.R. to the principal"s office.  She did not recall the timeframe in which these events occurred.

T.R. did not testify at the hearing, but his written statement is part of the record.  He states that he decided to leave the cafeteria to go to the bathroom, that the aide blocked his egress, and that he ducked under the aide"s arm to exit the cafeteria.

By letter dated November 13, 2002, the superintendent found T.R. guilty of pushing the aide and ordered T.R. suspended for an additional 30 days.  The superintendent further directed that the record of the suspension be expunged upon T.R."s graduation, or departure from the New York City public school system, provided there are no additional incidents of misbehavior resulting in a suspension. 

The superintendent also observed that Chancellor"s regulation A-443 provides that a witness with personal knowledge of the suspension procedures that were followed should appear at the hearing, but that the school dean who appeared at the hearing did not have such knowledge.  Accordingly, the superintendent instructed school officials to ensure that school employees with such knowledge appear at future superintendent"s suspension hearings.

     Petitioners appealed the superintendent"s decision to the Chancellor on November 26, 2003. By decision dated February 25, 2003, the Chancellor upheld the suspension. The Chancellor observed that the school may have violated Chancellor"s regulation A-443 by failing to have a witness with personal knowledge of the suspension procedures present at the superintendent"s hearing, but that such a procedural violation did not warrant overturning the suspension.  The Chancellor directed school officials to comply with Chancellor"s regulation A-443 in the future.

     Petitioners assert that T.R. was suspended without sufficient due process, that the superintendent"s determination that T.R. pushed the aide is not supported by the record, that respondent violated the Chancellor"s regulations, and that the hearing was improper in several respects. Petitioners request that the suspension be expunged from T.R."s records.  They also seek monetary damages.

     Respondent asserts that T.R. was afforded sufficient due process, that the superintendent"s determination is supported by the record, that any violations of the Chancellor"s regulations were deminimus, and that the hearing was otherwise conducted properly. 

I must first address a procedural issue.  In several places, petitioners" appeal papers refer to certain school employees as "respondents."   An individual must be clearly named as a respondent in the petition"s caption and served with a copy of the notice of petition and petition to inform the person that he or she should respond to the petition and enter a defense (Application of Simmons, 43 Ed Dept Rep __, Decision No. 14,899).  Although petitioners served the notice of petition and the petition on respondent"s employees, petitioners did not clearly name these employees as respondents in the caption of the petition. Accordingly, to the extent petitioners assert any claims against respondent"s employees individually, those claims must be dismissed (Application of Simmons, supra).

Education Law "3214(3)(b)(1) authorizes a board of education or trustees, superintendent of schools, district superintendent or a school principal to suspend a student for a period of five school days or less.  That section provides that in the case of such a suspension the student and his parents shall, on request, be given an opportunity for an informal conference with the principal at which they may present the student"s version of the event and ask questions of the complaining witnesses.  It further provides that the notice and opportunity for an informal conference shall take place prior to suspension of the student unless the student"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 student"s notice and opportunity for an informal conference shall take place as soon after the suspension as is reasonably practicable. 

Requirements related to a suspension of five days or less are also set forth in "100.2(l)(4) of the Commissioner"s regulations:

Parental notice concerning student suspensions.  When suspension of a student from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law is proposed, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student may be suspended from school.  Written notice shall be provided by personal delivery, express mail delivery, or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension at the last known address or addresses of the parents or persons in parental relation.  Where possible, notification shall also be provided by telephone if the school has been provided with a telephone number(s) for the purpose of contacting parents or persons in parental relation.  Such notice shall provide a description of the incident(s) for which suspension is proposed and shall inform the parents or persons in parental relation of their right to request an immediate informal conference with the principal in accordance with the provisions of Education Law, section 3214(3)(b).  Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil.  Such notice and opportunity for an informal conference shall take place prior to the suspension of the student unless the student"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 shall take place as soon after the suspension as is reasonably practicable. (Emphasis added).

The purpose of "100.2(l)(4) is to make the parents of a student suspended for five days or less 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 has authority to terminate or reduce the suspension (Appeal of P.F. and M.F., 42 Ed Dept Rep __, Decision No. 14,890).

     Respondent failed to comply with Education Law "3214(3)(b)(1) and "100.2(l)(4) of the Commissioner"s regulations in more than one respect. The school did not provide petitioners with written notice of the initial suspension prior to the suspension, did not inform petitioners of their right to request an immediate informal conference with the principal, and did not afford petitioners the opportunity to meet with the principal and question complaining witnesses prior to the suspension.  Although the statute and regulations provide that prior notice and the opportunity for an informal conference is not required when a student"s presence in school poses a continuing danger, there is no evidence that respondent believed that T.R. presented any such risk.  In fact, the school permitted T.R. to attend school for the remainder of the day of the incident and an additional school day before he was suspended.  Even if respondent had determined that T.R. posed a continuing risk, it would have been required to provide parental notification as soon after the suspension as was reasonably practicable.  This requirement was not met in the present case. Respondent"s failure to comply with Education Law "3214(3)(b)(1) and "100.2(l)(4) of the Commissioner"s regulations requires that the five-day suspension be annulled and expunged from T.R."s records (see, Appeal of V.R. and C.R., 43 Ed Dept Rep __, Decision No. 14,934; Appeal of A.L., Jr., 42 id. __, Decision No. 14,883).

It also appears that there were substantial violations of the Chancellor"s regulations in connection with the initial five-day suspension.  Due to the disposition of the five-day suspension, I need not reach the issue of whether these violations provide an independent basis for annulling and expunging that suspension from T.R."s records. 

     The annulment of an initial suspension of five days or less does not affect a superintendent"s determination, following a hearing brought pursuant to Education Law "3214(3)(c), that a student engaged in the charged misconduct (see, Appeal of P.R. and C.R., 41 Ed Dept Rep 48, Decision No. 14,611). Petitioners contend, however, that the 30-day suspension resulting from the superintendent"s hearing should nevertheless be expunged because T.R. did not receive sufficient due process in connection with the hearing and the hearing was conducted in violation of the Chancellor"s regulations.

Education Law "3214(3)(c)(1) provides that a student may not be suspended in excess of five school days unless the student and parent are given an opportunity for a fair hearing, upon reasonable notice, at which the student shall have the following rights: to be represented by counsel, to question witnesses against the student, and to present witnesses and other evidence on the student"s behalf.  The record shows that respondent provided reasonable notice of the superintendent"s hearing to petitioners, notified petitioners of T.R."s right to be represented by counsel, and afforded petitioners the opportunity to question witnesses against T.R. and present witnesses and other evidence on T.R."s behalf.  Thus, the hearing met the due process requirements of the Education Law.

With respect to the alleged violations of the Chancellor"s regulations, deminimus violations of the Chancellor"s regulations are not a basis to overturn a suspension (Appeal of Meredith, 33 Ed Dept Rep 530, Decision No. 13,138).  My review of the record indicates that while certain procedural violations of the Chancellor"s regulations relating to the superintendent"s hearing occurred, those violations were deminimus and petitioners have failed to show that T.R. was prejudiced by these violations.  I do caution respondent, however, to ensure that all future disciplinary actions are imposed in compliance with the Chancellor"s regulations.

Petitioners also claim that the superintendent"s decision is not supported by the record and the hearing officer made improper credibility determinations. The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Central School District v. Commissioner of Educ., 91 NY2d 133, 140-41; Bd. of Educ. of City School Dist. of City of New York v. Mills, 293 AD2d 37; Appeal of B.C. and A.C., 42 Ed Dept Rep __, Decision No. 14,891).  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of K.M., 41 Ed Dept Rep 318, Decision No. 14,699).  At the hearing, the aide testified that T.R. pushed him, and G.I. testified that T.R. avoided any physical contact.  The hearing officer found the aide"s testimony more credible than that of G.I. The hearing officer"s determination of credibility is consistent with the facts and there is competent and substantial evidence that T.R. pushed the aide.

Petitioners" claim for financial compensation must be dismissed because the Commissioner has no authority to award monetary damages or reimbursements in a "310 appeal  (Appeal of L.D. and M.D., 43 Ed Dept Rep __, Decision No. 14,947).

I have examined petitioners" remaining contentions and find them without merit. 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent"s suspension of T.R. from October 8-15, 2002 be annulled and expunged from his record.

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