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

Decision No. 16,176

(December 9, 2010)

Legal Services NYC-Bronx, attorneys for petitioners, Oroma H. Mpi, Esq., of counsel

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

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

During the 2007-2008 school year, petitioners’ son was a 10th grade student at Bronx Leadership Academy.  On December 1, 2008, petitioners’ son was involved in an incident outside of the dean’s office, wherein he allegedly threatened and intimidated the dean while the dean was disciplining another student.  The principal intervened and petitioners’ son was removed from the school lobby.

By suspension notice dated December 9, 2008, the superintendent notified petitioners that their son was being charged with: (1) engaging in intimidating and bullying behavior towards the dean by bumping into him and saying “You’re messing with my friend” while the dean was disciplining another student, then raised his hands in a threatening manner; and (2) pushed past the dean, creating a substantial risk of injury.  A superintendent’s hearing was initially scheduled for December 16, 2008, was adjourned to December 23, 2008, and concluded on January 9, 2009. 

Following the hearing, the Chief Executive Officer of the Office of School and Youth Development (“Chief Executive Officer”) sustained the first charge and dismissed the second charge.  Petitioners’ son was suspended for 30 days, effective December 10, 2008 through January 30, 2009.  Petitioners’ son was referred for a manifestation determination, and the committee found that his behavior was not a manifestation of his disability.  Petitioners’ son was reinstated to school on February 3, 2009.  Petitioners appealed the suspension and the Chancellor denied the appeal on June 4, 2009.  This appeal ensued. 

By letter dated April 20, 2010, my Office of Counsel requested a copy of respondent’s video surveillance and the written statement from one of respondent’s witnesses.  By letter dated April 30, 2010, respondent’s counsel notified my Office of Counsel that the video surveillance was damaged and that none of the parties could produce a copy. 

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 regarding the same.  Petitioners further argue that the “competent and substantial evidence” standard is unconstitutional and that the penalty is harsh and excessive.  Petitioners seek annulment of the suspension, expungement of their son’s record and a declaration that the substantial and competent evidence standard is invalid.

Respondent claims that the disciplinary decision is supported by competent and substantial evidence, that the investigation was adequate and that there were no violations of the Chancellor’s regulations or due process. Finally, respondent argues that the standard of proof applied at the disciplinary hearing meets constitutional standards.

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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  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 with a Disability, __ Ed Dept Rep __, Decision No. 16,079; Appeal of a Student with a Disability, 49 id. 302, Decision No. 16,034; Appeal of V.L., 44 id. 160, Decision No. 15,132).

Turning to the merits, petitioners contend that respondent’s decision to suspend their son is unsupported by the record.  Specifically, the petition alleges that respondent’s “appeal decision fails to adequately respond to the issues raised by Petitioner regarding [the dean’s] inconsistent statements”.  Petitioners also allege that the dean’s “testimony was unsupported by the video surveillance footage” and that the hearing officer, nonetheless, deferred to the dean’s interpretation of the alleged incident.    

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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800).  A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of C.R., 48 Ed Dept Rep 195, Decision No. 15,834; Appeal of P.D., 46 id. 50, Decision No. 15,438).

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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895).

Here, I find that the video surveillance is key evidence that the Chief Executive Officer and the Chancellor relied on to credit respondent’s witnesses and to affirm the suspension.

For instance, the Chief Executive Officer relied on the video surveillance in his decision when he described the video as follows:

[Petitioners’ son], who denied threatening [the dean], is seen arguing with [the dean], and after turning the corner in front of [the dean], is shown in the second camera angle facing [the dean] in a heated discussion.  The Hearing Officer concluded that this demonstrated [petitioners’ son] turned around and approached [the dean], continuing to argue, instead of removing himself from the situation.  This behavior is consistent with [the dean’s] testimony that [petitioners’ son] was posturing and threatening him.  [Petitioners’ son’s] behavior as evidenced on the video surveillance, coupled with [the dean’s] testimony and corroborated by ... an impartial witness who testified that [petitioners’ son] made statements in a threatening manner, were enough to sustain the charge of intimidating and bullying behavior. 

Moreover, the Chancellor denied the appeal and found competent and substantial evidence that petitioner engaged in intimidating and bullying behavior toward the dean, noting that:

“the hearing officer found that the video depicted [petitioners’ son] standing outside the closed door of [the dean’s] office, peeking inside.  The hearing officer also found that the video showed the office door opening and [the other student] leaving the office.  As [the other student] left [the dean’s] office, [petitioners’ son] moved aside.  The hearing officer found that, based on the video, [the dean] followed [the other student] and bumped into [petitioners’ son].  The video also showed that a verbal exchange took place between [petitioners’ son] and Dean Wilson. 

Without a copy of the video surveillance in the record before me, I am unable to adequately determine whether there is clear and convincing evidence that the Chief Executive Officer’s and Chancellor’s credibility determinations were consistent with the facts (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895). Therefore, in light of respondent’s statutory obligation to maintain a complete record of the student’s disciplinary hearing (Education Law §3214[3][c][1]), I am constrained to sustain the appeal to the extent petitioners seeks expungement of his disciplinary record (Appeal of A.R., 43 Ed Dept Rep 284, Decision No. 14,996; Appeal of Corbett, 12 id. 184, Decision No. 8599).

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

THE APPEAL IS SUSTAINED.

IT is ORDERED that respondent’s 30-day suspension of petitioners’ son be expunged from his record.

END OF FILE.