Appeal of a STUDENT WITH A DISABILITY, by his grandparent, from action of the Board of Education of the Hicksville Union Free School District regarding student discipline.

Decision No. 17,110

(June 21, 2017)

Law Offices of Suzanne Myron, attorneys for petitioner, Ian C. Heller, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Barbara P. Aloe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Hicksville Union Free School District to impose discipline on her grandson (“petitioner’s grandson” or “the student”).[1]  The appeal must be sustained in part.

This is one of three appeals challenging student suspensions which arose from the same incident (see Appeal of John Doe, 56 Ed Dept Rep, Decision No. 17,109 and Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 17,111).  At the time of the events relevant to this appeal, petitioner’s grandson was a senior attending respondent's high school.  The incident began when the student and the two students who are the subjects of the two related appeals, including John Doe, became involved in a verbal dispute with three other students in a hallway at the base of a staircase.  Petitioner asserts that one of the students had been teasing John Doe about the recent death of a friend who was a gang member.  Petitioner alleges that one of the students kicked John Doe.  Thereafter, the students began shoving each other and a staff member attempted to intervene.  A few minutes later, the discussion devolved into a fistfight in the art hallway which eventually involved all six students.  Video security camera footage captured by the district and submitted with this appeal portrays a portion of the fistfight.  In the footage, petitioner’s grandson, John Doe, and the student who filed a related appeal pursued and attacked the three other students.

The assistant principal contacted the student’s home, and petitioner and the student met with the assistant principal on the same day as the fight.  The assistant principal informed petitioner and the student that he would impose a suspension which would commence the following day.  Petitioner took the student home for the remainder of the school day. 

The next day, the principal sent a letter the student's home address which imposed a five-day suspension for the fight.  On the following day, the superintendent wrote to the student’s home and indicated that a superintendent’s hearing would be held in connection with the student’s participation in the fight.  The superintendent’s letter alleged that the student committed the following six charges of misconduct:

1.Engaged in a physical altercation with another student or students;

2.Engaged in conduct that disrupted the educational process;

3.Endangered the health and safety of others;

4.Engaged in insubordinate conduct and/or failed to follow reasonable directives of district staff;

5.Engaged in concerted activity and/or concerted violent activity; and

6.Engaged in concerted and/or gang activity.

A superintendent's hearing was held.  The superintendent, the student, petitioner, and an assistant principal attended.  At the superintendent’s hearing, the student admitted his guilt as to specifications one through five, and denied his guilt as to specification six.  The superintendent found the student guilty of all six specifications of misconduct.  Thereafter, the district’s committee on special education conducted a manifestation determination review and determined that the student’s conduct was not a manifestation of his disability.  Following this determination, the superintendent imposed a one-year suspension.  Petitioner’s appeal to respondent was denied.  This appeal ensued.

Petitioner argues that the district committed three procedural errors during the disciplinary process that violated her grandson’s right to due process and that the penalty imposed was excessive.  The three procedural errors alleged by petitioner are that the district improperly suspended her grandson prior to affording her an opportunity for an informal conference, that the district did not schedule the superintendent’s hearing within the five-day suspension period, and that the board took an inordinate amount of time to resolve her appeal.

Petitioner also argues that the district produced insufficient evidence of guilt as to charge six, which alleged that the student engaged in concerted and/or gang activity.  Petitioner further contends that charge six was racially motivated and violated the student’s civil rights.  As for the penalty, petitioner argues that it was excessive and that other participants in the fight received a lesser degree of punishment than the student.  Finally, petitioner avers that the student did not receive alternative instruction in a timely manner.  For remedies, petitioner seeks reduction of the student’s suspension and expungement of the suspension from the student’s record.

Respondent denies petitioner’s allegations and argues that it satisfied its legal obligations in imposing discipline on the student.  Specifically, respondent argues that the student admitted his guilt as to charges one through five and that the record supports a finding of guilt on charge six.  Respondent further contends that a one-year suspension was an appropriate level of discipline under the circumstances.  Respondent additionally argues that petitioner’s civil rights claims are outside of the Commissioner’s jurisdiction, and that some of petitioner’s claims arise under the Individuals with Disabilities Education Act (“IDEA”) which, similarly, is outside of the Commissioner’s jurisdiction.  Specifically, respondent argues that the student is beyond compulsory school age and any right he had to instruction during his suspension is governed by the IDEA.  In any case, respondent argues that it provided alternative instruction in a timely manner.

First, 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).  To the extent that petitioner seeks reduction of the student’s suspension, the student has served his suspension and that portion of this appeal is moot.  Petitioner’s claims relating to the timely provision of alternate instruction to the student must also be dismissed as moot because the student has completed his suspension (Appeal of C.B. and B.R., 50 Ed Dept Rep, Decision No. 16,192; Appeal of C.M., 50 id., Decision No. 16,142).  However, petitioner also seeks expungement of the suspension from the student’s record, and this claim remains live (Appeal of D.O., 53 Ed Dept Rep, Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Petitioner’s argument that the district failed to initiate alternative instruction in a timely manner must be dismissed for failure to state a claim upon which relief may be granted.  The record shows that the student was over compulsory school age at the time of the suspension.  Education Law §3214(3)(e) requires that alternative instruction be provided to suspended students of compulsory school age.  Therefore, respondent was not obligated to provide alternative instruction to the student under these circumstances (see Appeal of J.S., 50 Ed Dept Rep, Decision No. 16,091) and petitioner has not alleged or proven that respondent’s actions in providing alternative instruction were in violation of any district policy.  The record reflects that the district provided the student with alternative instruction pursuant to its obligations under the IDEA and Article 89 of the Education Law.  Claims brought to enforce rights under the IDEA and Article 89 of the Education Law must be addressed through the due process provisions of the IDEA and Education Law §4404; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 56 Ed Dept Rep, Decision No. 16,956; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).

Additionally, I am without jurisdiction to entertain petitioner’s claims that the district violated the student’s civil rights.  An appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under federal civil rights laws such as the Civil Rights Act of 1964 (Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991; Appeal of Finkel, 41 id. 74, Decision No. 14,619).

Turning to the merits of petitioner’s claims, petitioner argues that the district failed to provide her with written notice of the student’s five-day suspension prior to initiation of the suspension.  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823).  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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).

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 (see e.g. Appeal of a Student with a Disability, 47 Ed Dept Rep 19, Decision No. 15,608).

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 J.Z., 47 Ed Dept Rep 243, Decision No. 15,681; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, the record reflects that petitioner voluntarily took the student home from school on the day of the fight “for safety reasons and ... to obtain medical care.”  The record further indicates that the assistant principal met with petitioner and the student on the day of the incident and informed them that a “[p]rincipal’s [s]uspension would commence the next day.”  The record indicates that respondent sent the notice to the student’s parents/guardians at his address of record via certified mail the day after the fight – the same day that the student’s suspension commenced.  However, previous Commissioner’s decisions have found that certified mail “is no more expeditious than regular mail” and, thus, is functionally identical to regular mail for purposes of analyzing the timeliness of a five-day notice (see Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046; Appeal of a Student with a Disability, 40 id. 47, Decision No. 14,418).  Indeed, in this case, the notice was received at the student’s address on the afternoon of the second day of the student’s suspension.

As noted above, written notice and the opportunity for an informal conference must take place prior to the suspension, 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 which would allow the notice and opportunity for an informal conference to take place as soon as practicable after the suspension began.  In this case, the written notice of the five-day suspension does not explicitly indicate, as it should have, that the student’s presence in the school would pose a continuing danger or an ongoing threat of disruption (see e.g. Appeal of L.Z. and M.S., 56 Ed Dept Rep, Decision No. 17,034; Appeal of L.L., 51 id., Decision No. 16,334).  While the assistant principal asserts on appeal that the student “posed an ongoing and significant threat of disruption,” the principal’s written notice did not so state (Appeal of T.T. and K.T., 52 Ed Dept Rep, Decision No. 16,386; Appeal of G.B. and B.B., 52 id., Decision. No. 16,383).

In this case, respondent argues that the student’s “conduct established that his presence on school grounds posed a continuing danger and/or threat [o]f disruption to the academic process.”  In this regard, I note that in its memorandum of law, respondent cites Appeal of L.I., 50 Ed Dept Rep, Decision No. 16,195, for the proposition that “the decision to immediately suspend a student involved in a violent incident [is not] arbitrary and capricious.”  While both cases clearly involved violent conduct, Appeal of L.I. is factually distinguishable from the instant appeal.  In Appeal of L.I., the principal suspended the student immediately on the day of the physical altercation at issue and provided his mother with a hand-delivered suspension notice on that day informing her that her son would be suspended for three days for “inappropriate physical behavior” and advising her of her right to an informal conference.  Petitioner argued that the record did not support a conclusion that the student’s presence posed a threat, but the Commissioner upheld the immediate short-term suspension and found that petitioner was afforded the opportunity for an informal conference in a timely manner under the circumstances.

n the instant appeal, however, petitioner’s grandson was not suspended immediately, the written notice was mailed on the day the short-term suspension commenced, and respondent’s contention herein that the student presented an ongoing threat of disruption warranting an immediate short-term suspension is undercut by the fact that the student’s suspension did not commence until the day after the fight (see e.g. Appeal of J.S. and J.S., 56 Ed Dept Rep, Decision No. 17,032; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036).  Even if respondent had determined that the student posed a continuing risk, it would have been required to provide parental notification as soon after the suspension as was reasonably practicable.  As described above, this requirement was not met in the present case (Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046). 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 the student’s records (see Appeal of E.Z., 56 Ed Dept Rep, Decision No. 17,034; Appeal of T.T. and K.T., 52 id., Decision No. 16,386).

Next, petitioner complains that the superintendent’s hearing was not scheduled within the five-day suspension period.  This contention, however, is not supported by the evidence in the record.  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 (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897).  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242 Appeal of Spensieri, 40 id. 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110).  Where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated and the student may remain out of school beyond five days (see Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).

The superintendent’s hearing was initially scheduled for the last day of the student’s five-day suspension but was adjourned twice at petitioner’s request.  Correspondence from the superintendent explicitly noted that petitioner agreed to continuation of the student’s suspension until the hearing convened, and petitioner does not contend otherwise on appeal.  Therefore, I find that expungement is unwarranted here since any delay in convening the superintendent’s hearing was attributable to petitioner’s requests for adjournments (see Appeal of L.T., 50 Ed Dept Rep, Decision No. 16,242).

Petitioner also argues that respondent took an unreasonably long time to resolve her appeal.  The record reflects that petitioner appealed to respondent on the last day of February, and that respondent considered the appeal at its regularly scheduled meeting in April and dismissed the appeal in a letter dated two days after the April meeting.  There is no indication in the record that respondent has a rule or policy dictating when a decision resolving an appeal to the board must be rendered.  Under these circumstances, I do not find that respondent’s timeline in resolving petitioner’s appeal was unreasonable (see Appeal of L.I., 50 Ed Dept Rep, Decision No. 16,195).

Petitioner further contends that there was insufficient evidence to find the student guilty of charge six, which charged him with “engag[ing] in concerted and/or gang activity.”  I agree with petitioner that the record does not support a finding that the student actually engaged in gang activity.  The evidence of gang activity adduced at the hearing consisted of testimony by the assistant principal that John Doe explained to him after the incident that: (1) a friend of his, who was a member of a gang, recently died; (2) the classmate who taunted him displayed a blue bandana; and (3) the blue bandana was affiliated with the classmate’s gang, which John Doe viewed as disrespectful to his friend’s memory.  From this, John Doe inferred that the classmate’s display of the blue bandana was a mocking gesture.  At the hearing, the superintendent sustained charge six against the student who is the subject of this appeal “[b]ased on the testimony that [she] heard today from witnesses and based upon the evidence that was presented.”

However, I do not find that this evidence supports a finding that the student engaged in gang activity.  At the outset, the parties agree that the record does not establish that the student is a member of a gang.  The superintendent avers that “there never was a charge or finding that Petitioner Student was a member of an organized gang,” and the student, at the hearing and in this appeal, has denied any such affiliation.  The record merely demonstrates that a friend of John Doe’s who was in a gang had died, the classmate displayed a bandana associated with a competing gang, and a fight ensued.   Mere knowledge of gangs and gang symbols, or association with individuals who belong to a gang, does not automatically transform acts into “gang activity” (see Appeal of L.L., 48 Ed Dept Rep 197, Decision No. 15,835, Supreme Court, Albany County; Transferred to Appellate Division, Third Department; August 18, 2009; Decision and order granting application to withdraw; September 2, 2010).

However, charge six, by its terms, is not limited to gang activity, since it alleged that the student engaged in “concerted and/or gang activity” (emphasis added).  The student admitted that he was guilty of charge five, which charged him with “engag[ing] in concerted activity” and/or concerted violent activity.  Therefore, I have no basis for concluding that the student was not guilty of charge six according to the plain language of the charge.

While petitioner makes conclusory allegations that the imposition of charge six was racially motivated in that it involved racial stereotyping, I find no evidence in the record to support such claim.  As described above, charge six was based on the testimony of the assistant principal that John Doe told him that the incident was precipitated by another student using a gang symbol and teasing him about the death of a friend who was a gang member.  Therefore, respondent had a reasonable and non-discriminatory basis to suspect that the actions of John Doe – and, by extension, the student who is the subject of this appeal – might be gang-related. 

Petitioner further contends that the penalty imposed was excessive.  In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).

Here, the student admitted his guilt to all but one of the charges at the hearing and on appeal.  Thus, the student admitted that, among other charges, he fought with another student and endangered the health and safety of others.  While the student argues that the fight was initiated by the other students and that he participated only to “help” another student, that does not justify or excuse his actions in physically assaulting the other students (see Appeal of D.S. and N.F., 56 Ed Dept Rep, Decision No. 17,026).  In fact, the security camera footage shows the student and his companions aggressively pursuing and beating the other students after the fistfight started.  The fighting was so severe that, according to the record, the school was placed in lockdown after the fight.  Physical violence in public schools should not be tolerated, and the superintendent was well within her discretion to impose a one-year suspension given the student’s conduct (cf. Appeal of T.M., 41 Ed Dept Rep 443, Decision No. 14,740).  Therefore, I do not find the penalty imposed to be excessive.

While petitioner argues that other participants in the fight received lesser penalties, the fact that other students involved in the incident may have received different or lesser penalties, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed on the student provided that, as here, the record establishes that he engaged in the misconduct and the penalty imposed is otherwise appropriate (Appeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046).

I have considered petitioner’s remaining arguments and find them to be without merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s short-term suspension of the student for five days between December 21, 2010 and January 4, 2011 be annulled and expunged from his record.

END OF FILE