Appeal of V.C., on behalf of her son A.S., from action of Joel I. Klein, Chancellor of the New York City Department of Education, regarding student discipline.

 

Decision No. 15,419

 

(June 30, 2006)

 

Queens Legal Services Corporation, attorneys for petitioner, Ghita Schwarz, Esq., of counsel

 

Michael Cardozo, Esq., Corporation Counsel, attorney for respondent, Theresa Crotty, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision of Joel I. Klein, Chancellor of the New York City Department of Education ("respondent"), to uphold the suspension of petitioner's son, A.S.  The appeal must be sustained in part.

On March 23, 2004, A.S., then a seven-year-old second grade student, was involved in an altercation with another student.  The school principal and a teacher stopped the fight and the principal attempted to restrain A.S., who then started kicking and hitting the principal.  The assistant principal came upon the scene, assisted the principal and removed A.S. to the cafeteria, leaving him at a table while he attended to other students.  Hearing a commotion, the assistant principal turned to see another student lying on the floor crying with a bruise on his head, apparently caused by A.S.  According to a decision of the Regional Superintendent (discussed below), A.S. was suspended as of March 24, 2004.

Petitioner met with the school principal on March 25, 2004.  By letter dated March 26, 2004, petitioner was notified that A.S. had been suspended for five days effective March 29, 2004 and that a superintendent's hearing would be held on April 2, 2004.  That letter also assigned A.S. to an alternative education site at another elementary school.  A.S. was charged with engaging in a fight, striking and kicking the principal and striking a student in the cafeteria.

Petitioner appeared at the superintendent's hearing without counsel, although she brought a relative to act as an interpreter.  By decision dated May 5, 2004, the Regional Superintendent found that A.S. was guilty of fighting and of striking and kicking the principal, but that there was insufficient evidence to establish that A.S. had struck a student in the cafeteria.  The Regional Superintendent suspended A.S. for 90 days, April 12, 2004 through November 10, 2004, and stated that the suspension would be expunged from his records upon graduation if he had no further suspensions.  The Regional Superintendent also found that A.S. had been immediately and erroneously excluded from school and he admonished school officials to permit students to attend classes prior to suspension in accordance with the Chancellor's Regulations.

On May 6, 2004, petitioner requested interim relief from respondent.  On or about May 12, 2004, petitioner's counsel was notified that A.S. could return to school.  By letter dated May 19, 2004, petitioner was notified that her request for immediate reinstatement had been granted and that A.S.'s "continued suspension" had been modified to consist of 18 days beginning April 19, 2004 and ending May 12, 2004.  That letter informed petitioner that the interim relief would have no bearing on respondent's final decision.  The Regional Superintendent, by letter dated May 26, 2004, issued an "Amended Letter" that reflected the modified suspension.

On June 26, 2004, petitioner filed an appeal with respondent contending that the Regional Superintendent failed to render a decision within five school days of the hearing, that the notices of decision and disposition were defective, that alternative instruction was not provided and that the suspension was excessive.  In the ensuing months, petitioner's counsel contacted respondent's office requesting a decision.  On October 15, 2004, petitioner instituted legal proceedings in New York State Supreme Court to compel respondent to issue a decision.  That action was discontinued by stipulation when respondent issued a decision on October 27, 2004.

Respondent's decision noted that the suspension was modified in response to the procedural violation of excluding A.S. from school effective March 24, 2004 and that the "continued suspension" commenced on April 2, 2004, not April 19, 2004.  Respondent also held that it had been petitioner's responsibility to request transportation to the alternative site and that there was nothing in the record to indicate that she had done so.  Respondent found that the procedural violations did not warrant overturning the Regional Superintendent's decision and that the penalty was not excessive.  This appeal ensued.

Petitioner contends that respondent violated the Education Law and Chancellor's Regulations by failing to provide written notice of the suspension and by failing to timely render the suspension determinations.  Petitioner also alleges that respondent failed to provide adequate alternative education during the suspension by failing to provide transportation.  Petitioner further argues that the punishment was excessive and that respondent failed to adequately consider the student's age, mitigating circumstances and lack of prior disciplinary history.  Petitioner also contests the dates of suspension used in the superintendent's decision.  Petitioner requests that the suspension be expunged from A.S.'s records and that he be provided with compensatory education.  Petitioner also requests an order directing the New York City Department of Education to issue dispositions and decisions in accordance with New York State law and the Chancellor's Regulations.

Respondent contends that the procedures followed to suspend A.S. were in compliance with the Education Law, that any procedural deficiencies were deminimis and that the suspension was modified to compensate for the deficiencies.  Respondent asserts that the decision to suspend A.S. was based on competent and substantial evidence and that the penalty was appropriate based on his conduct.  Respondent argues that A.S. is not entitled to compensatory education and that petitioner has failed to cite any legal authority for that relief.

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 R.F., 43 Ed Dept Rep 206, Decision No. 14,972). 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 this case, A.S. was immediately excluded from school before written notice was provided and before petitioner was given an opportunity to meet with the principal.  Respondent admits that this exclusion was in error and the Regional Superintendent's decision admonished school officials for this lapse.  I agree.  Thus, to the extent any reference to this short-term suspension appears in A.S.'s records, it must be expunged (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036).

Respondent does not dispute that timelines for issuance of the Regional Superintendent's and Chancellor's decisions were not followed.  The Regional Superintendent's decision should have been issued within five school days of the hearing and was not issued for several weeks (Chancellor's Regulation A-443 III B.3.[u]).  The student was out of school during that time and the situation was exacerbated by respondent's failure to provide transportation to the alternative education site.  When the decision was finally issued, the starting date of the 90-day suspension was misstated.  Respondent contends that the student was not prejudiced by the delay because the student's suspension was shortened in recognition of this error and he was returned to school within days of petitioner's request for interim relief.  This, however, does not mitigate the fact that the student was kept out of school before there was a determination of guilt. 

Education Law �3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil's behalf.  The law in this regard is clear.  A suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination of guilt has been made (see Education Law �3214[3][c][1]; Ross v Disare, 500 F Supp  928; MacDonald v Tompkins, 67 Misc 2d 338; Appeal of Manson, 11 Ed Dept Rep 48, Decision No. 8,329).  In this case, A.S. was excluded from school for over a month before a determination was rendered.  The Regional Superintendent's decision to shorten the suspension does not compensate for this violation.  Accordingly, the "continued suspension" must be expunged from the student's record.

Additionally, respondent's decision should have been issued within 15 working days of the filing of the complete record of the appeal (Chancellor's Regulation A-443 IV B.4).  It was rendered approximately four months from the date of appeal.  Petitioner had to repeatedly contact respondent's office and instituted legal proceedings before the decision was issued.  Respondent is advised to adhere to his regulatory timeframes in the future.

As to the provision of alternative education during the suspension, respondent assigned the student to a school two miles away.  The New York City Department of Education provides transportation to second grade students who reside more then one-half mile from the school of attendance.  The Chancellor's Regulation states, "If necessary, appropriate transportation arrangements must be made for the [suspended] student" (Chancellor's Regulation A-443 III B.1.[c]).  Respondent interpreted this provision to require a request from petitioner and held that there was no violation of the regulation. 

Petitioner asserts that she spoke with school officials about her inability to transport the student herself because of health and financial constraints.  She also alleges that the Administration for Child Services ("ACS") investigated her for child neglect because A.S. was not in school during his suspension and that ACS workers scheduled a meeting with her and a school official to resolve the issue but that the school official did not appear for that meeting.  It thus appears that petitioner sought transportation to the alternative site. 

Respondent, by not heeding petitioner's request for transportation, violated his own regulation, effectively depriving A.S. of alternative education.  Respondent should, in the future, ensure that the New York City Department of Education provides transportation in accordance with the Chancellor's regulation.

Petitioner also requests compensatory education services for her son.  Generally, such services are available only to students classified as having a disability.  There is no indication that A.S. is so classified.  Furthermore, respondent states, and petitioner does not dispute, that A.S. successfully completed second grade.  I, therefore, decline to grant this particular request for relief.

In light of this disposition, I need not address the parties remaining contentions.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent's suspension of petitioner's son, A.S., resulting from the March 23, 2004 incident, be annulled and expunged from his record.

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