Appeal of L.Z. from action of Joel I. Klein, Chancellor of the New York City Department of Education, regarding student discipline.

 

Decision No. 15,581

(May 8, 2007)

 

Lincoln Square Legal Services, Inc., attorneys for petitioner, Cheryl Bader, Esq., of counsel

 

Michael Cardozo, Esq., Corporation Counsel, attorney for respondent, Duncan Peterson, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision of Joel I. Klein, Chancellor of the New York City Department of Education (“respondent”), upholding a suspension determination.  The appeal must be dismissed.

On February 15, 2005, during a laboratory class at Seward Park High School (“the school”), an altercation occurred between petitioner and Y.L.  After a verbal exchange, Y.L. approached petitioner’s desk and attacked him, placing him in a chokehold.  Petitioner defended himself with a pair of scissors, which had been provided for use in class.  The fight apparently continued after class into the hall.  A teacher intervened and sent both students to the dean, who suspended them.

By letter dated February 16, 2005, the Regional Superintendent (“superintendent”) suspended petitioner for five days commencing February 17, 2005.  Petitioner was charged with behavior that constituted a danger to the health, safety, welfare and morals of himself and others at the school for fighting with another student (Y.L.); possessing a dangerous weapon, namely, a pair of scissors; and puncturing Y.L.’s skin with the scissors.  A hearing was scheduled for March 2, 2005 but was adjourned at the school’s request until March 11, 2005.  Although the record is unclear, petitioner apparently was permitted at some point to return to school prior to the hearing.

By decision dated April 5, 2005, the superintendent dismissed charges one and two but upheld charge three, finding that the weight of the credible evidence presented at the hearing established that petitioner had jabbed Y.L.’s leg with the scissors.  The superintendent ordered that petitioner be immediately reinstated to school, and that all notation of the suspension be expunged upon petitioner’s graduation or departure from the New York City public school system, provided that there are no additional incidents of misbehavior resulting in a sustained principal’s or superintendent’s suspension.

By letter dated April 28, 2005, petitioner appealed the April 5 decision to respondent, requesting that the decision be overturned and the suspension be expunged, or alternatively, that the matter be remanded for a new hearing on charge three.  By decision dated November 21, 2005, respondent denied petitioner’s appeal.  This appeal ensued.

Petitioner contends that the suspension determination is not supported by substantial evidence because he was charged with “puncturing” Y.L.’s skin with scissors, but found guilty of “jabbing” Y.L.  He contends further that the translation of the sole eyewitness testimony was so inaccurate and confusing that he was deprived of his due process right to confront witnesses.  He also asserts that respondent violated the Chancellor’s Regulations by failing to respond to his appeal within 15 days.  He requests that the suspension be overturned and expunged from his record.

Respondent asserts that petitioner was afforded sufficient due process, that the hearing was properly conducted, that the superintendent’s decision is supported by the record and that any violations of the Chancellor’s Regulations were deminimus.

     The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of a Student with a Disability, 39 Ed Dept Rep 427, Decision No. 14,278).  In the notice of hearing dated February 16, 2005, the superintendent advised petitioner of three charges against him stemming from the altercation on February 15 involving scissors and an injury to Y.L.  Therefore, on this record, I find that the notice provided sufficient specificity for petitioner to mount a defense to the charges and I find no due process violation.

The decision to suspend a student from school pursuant to Education Law §3214 must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Bd. of Educ. of City School Dist. of City of New York v. Mills, et al., 293 AD2d 37; Appeal of L.T., 44 Ed Dept Rep 89, Decision No. 15,107).

At the hearing, the lone student witness (L.O.) and the dean testified on behalf of the school.  L.O. testified in her native Chinese and a school employee translated into English.  In the course of L.O.’s testimony, petitioner’s interpreter became so concerned about the inaccuracies of the school employee’s translations that the hearing officer resorted to bringing in the dean to mediate between translators.  L.O. testified that she had been seated directly behind petitioner, had observed Y.L. approach petitioner and put his body over petitioner’s, but she admitted she could not see clearly except that petitioner could not move.  At first the school translator said that L.O. saw petitioner pick up scissors on the table and stick them in Y.L.’s leg.  L.O. later indicated that petitioner already had the scissors in his hand because he was cutting paper.  Petitioner’s interpreter disputed the translation of the word “stick,” saying the translation was “rub.”  The dean also stated the word used by L.O. translated “more like the rubbing part” than “jabbing in.”

Although the inaccurate translations distorted L.O.’s testimony, the dean testified that after both students were brought to the office and she inquired whether anyone was hurt, Y.L showed her marks on his leg and petitioner admitted to her that he “did use the scissor on [Y.L.].”  Where a student admits the charged conduct, the admission is sufficient proof of guilt (seee.g.Appeal of J.F. and J.F., 46 Ed Dept Rep 205, Dec No. 15,483; Appeal of C.D., 43 id. 425, Decision No. 15,041; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).  Accordingly, I am constrained to uphold the superintendent’s finding of guilt.  The record also indicates that petitioner was given full opportunity to question the witness and to avail himself of the assistance of his translator and the dean.  Hence, I find no impropriety in the conduct of the hearing.

     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 B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036; Appeal of K.M., 41 id. 318, Decision No. 14,699).  Although there was confusion over the translation of L.O.’s testimony, she nonetheless testified that she observed petitioner perform some action with the scissors against Y.L., and the hearing officer found her to be a credible witness.  Nothing in the record compels me to substitute my judgment for that of the hearing officer.

     Finally, Chancellor’s Regulation A-443 IV.B.4 provides for the issuance of respondent’s decision within 15 working days of the filing of the complete record of the appeal.  Petitioner appealed on April 28, 2005 but respondent did not issue a decision until November 21, 2005, almost seven months later.  Respondent asserts that his decision was issued 21 working days after the last of several settlement discussions and that the delay, therefore, is deminimus.  The record indicates, however, that settlement discussions did not begin until after an inquiry from petitioner’s counsel after the 15 day period had passed.  Nonetheless, any delay in the issuance of the Chancellor’s decision is not a basis on which to sustain the appeal.

I remind respondent that in accordance with the superintendent’s April 5, 2005 decision, he is to expunge all notation of the suspension upon petitioner’s graduation or departure from the New York City public school system, provided that no additional incidents of misbehavior occurred resulting in a sustained principal’s or superintendent’s suspension.

 

THE APPEAL IS DISMISSED.

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