Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of Joel Klein, as Chancellor of the New York City Department of Education, regarding student discipline.

Decision No. 16,079

(June 30, 2010)

Legal Services for New York City - Bronx, attorneys for petitioners, Nelson Mar, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

STEINER, Commissioner.--Petitioners challenge the decision of Joel Klein, Chancellor of the New York City Department of Education (“respondent”), to suspend their son.  The appeal must be sustained in part.

On April 1, 2008, petitioners’ son was involved in an incident wherein he allegedly pushed a school safety agent.  A notice dated April 4, 2008 informed petitioners that their son was suspended as of April 7, 2008 for behavior that was alleged to constitute a danger to the health, safety, welfare and morals of the student and others at the school.  The hearing was scheduled for April 11, 2008, but was adjourned at petitioners’ request until April 18, 2008.  A second day of hearing was held on April 28, 2008.

By decision dated May 16, 2008, petitioners were informed that the charge against their son had been sustained.  The decision further advised petitioners that their son was suspended through May 23, 2008.  Petitioners’ appeal to respondent was denied on December 10, 2008.  This appeal ensued.

Petitioners argue that their son’s due process rights were violated because the school failed to conduct an adequate investigation and did not follow the Chancellor’s regulations[1] regarding the same.  Petitioners further argue that respondent failed to provide written notice of the charged misconduct prior to suspending the student.  Petitioners also argue that the decision is not supported by substantial evidence and that their son’s conduct

amounted to self-defense.  Petitioners submit that the "competent and substantial evidence" standard is unconstitutional.  Finally, petitioners assert that respondent failed to send a copy of its decision to petitioners’ counsel which prevented petitioners from utilizing the full 30 days to appeal.  Petitioners ask that the suspension be reversed, that their son’s record be expunged and that the substantial and competent evidence standard be declared invalid.

Respondent claims that his decision is supported by competent and substantial evidence and that petitioners failed to establish that their son acted in self-defense.  Respondent asserts that the investigation was adequate and there were no violations of the Chancellor’s regulations or due process.  Respondent asserts that the claim regarding the alleged improper exclusion of the student prior to receiving the suspension notice is moot.  Finally, respondent argues that the standard of proof applied at the disciplinary hearing meets constitutional standards and that the inadvertent failure to send respondent’s decision to petitioners’ counsel is of no consequence.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  The suspension has been served and therefore the appeal is moot except to the extent petitioners seek expungement of the student’s records (Appeal of a Student Alleged to Have a Disability, 49 Ed Dept Rep ___, Decision No. 16,034; Appeal of M.P., 44 id. 132, Decision No. 15,123).

With respect to the exclusion of petitioners’ son for two days prior to the April 7, 2008 effective date for the suspension, respondent concedes that this was improper.  It appears that this exclusion was not made a part of the student’s record and respondent has ordered the school to comply with the Chancellor’s regulations in the future.  Accordingly, no additional meaningful relief can be provided.

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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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]).  The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made 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 imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550). 

The written notice of a short-term suspension 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 (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145). Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeals of E.R., 45 id. 487, Decision No. 15,389).

There is no showing here that the required written notice of the short-term suspension was provided to petitioners by respondent immediately and prior to the decision to suspend petitioners’ son.  Accordingly, the suspension imposed from April 7, 2008 to April 11, 2008 must be annulled and expunged from petitioners’ son’s record (Appeal of F.M., 48 Ed Dept Rep 244, Decision No. 15,849).

Respondent admits that a copy of his decision was not sent to petitioners’ counsel.  While petitioners state generally that they were prejudiced in their ability to file this appeal, they fail to clearly articulate in what way their appeal has been prejudiced.  Moreover, no relief specific to this failure was requested by petitioners. Accordingly, this claim must be dismissed for failure to state a claim upon which relief may be granted, as well as for mootness. 

With respect to petitioners’ argument regarding the standard of proof in a student disciplinary hearing, it is well settled that 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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Petitioners’ contention that this standard is unconstitutional is without merit (Bd. of Educ. of City School Dist. of City of New York v. Mills, et al.,  293 AD2d 37).

Petitioners contend that respondent violated their son’s due process by failing to conduct an adequate investigation prior to disciplining their son.  More specifically, petitioners contend that respondent’s investigator failed to comply with Chancellor’s regulation A-443 by failing to collect statements from additional witnesses to the alleged incident.  The pertinent Chancellor’s regulation requires that the principal or his/her designee question the victim and any other witnesses to the incident and obtain their signed written statements.  It is undisputed that the alleged incident occurred in the school cafeteria and that several hundred students were present in the cafeteria at the time and may have witnessed the incident.  Statements were received from both adult staff and students.  However, respondent apparently did not seek out statements from all potential student witnesses.  On appeal, respondent rejected petitioners’ argument that the investigation violated Chancellor’s regulation A-443, concluding that the investigation was sufficient to comply with the regulation and the failure to interview additional student witnesses was not a basis for overturning the suspension.  I defer to the Chancellor’s interpretation of his own regulation and find petitioners’ claim that respondent violated their son’s due process rights and relevant Chancellor’s regulations based on an inadequate investigation without merit.  Taking petitioners’ interpretation to its logical conclusion, respondent would have been required to interview every student in the cafeteria at the time of this incident.  Moreover, petitioners and their son had the opportunity to present his characterization of the incident and to subpoena and present witnesses at the disciplinary hearing to support their position.  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 (seeBd. of Educ. Monticello Cent. School Dist. v. Commissioner of Educ. et. al., 91 NY2d 133; Appeal of K.B., 41 Ed Dept Rep 431, Decision No. 14,737).    

As to the additional suspension, Education Law §3214[3][a] authorizes a board of education to suspend a “pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others”.  As stated above, 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).

After carefully reviewing the transcript, video surveillance and the record before me, I find there is sufficient evidence to sustain the charge that petitioners’ son pushed a school security agent based on the evidence presented at 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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438). 

Although petitioners argue that their son acted in self-defense, I find that petitioners failed to adequately establish this defense at the hearing.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioners relied on their son’s injuries, the testimony and statement of another student who was a friend of petitioners’ son and their interpretation of a statement of a school aide.  It is the petitioners’ burden to establish the defense, and after careful review of the record, I find that they failed to do so at the hearing. Petitioners assert that there were a number of other student witnesses to the incident, and in fact appeared to have seen statements regarding the same, but petitioners failed to call such other witnesses in support of their defense at the hearing.  Accordingly, I find no basis to overturn respondent’s finding of guilt. 

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of the student from April 7, 2008 to April 11, 2008 be annulled and expunged from his record.

END Of FILE.