Appeal of T.A., on behalf of her son S.N., from action of the Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 17,566

(January 11, 2019)

Main Street Legal Services, Inc., The City University of New York School of Law, attorneys for petitioner, Karen Yazmajian, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Copatrick Thomas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Chancellor of the New York City Department of Education (“respondent”) to suspend her son.  The appeal must be dismissed.

During the 2017-2018 school year, the student attended ninth grade in a high school located within the City School District of the City of New York.  On December 11, 2017, the student attempted to leave the high school building at approximately 12:40 p.m.  At the high school lobby, the student encountered Dennis Ehrlich, a high school dean (“Dean Ehrlich”).  Dean Ehrlich asked the student if he was “done for the day.”  The student responded that he had to go.  Dean Ehrlich then asked the student if he had a program card which, according to the record, would allow him to exit the building.  The student responded that he did not have his program card.  Dean Ehrlich than asked the student if he could get the card; the student responded that he had “to go get his brother.”  Dean Ehrlich directed the student to go to the guidance office, where staff could confirm that petitioner wished for the student to leave school.  The student repeatedly stated that he had to leave and then pushed his way past Dean Ehrlich.  Dean Ehrlich fell to the floor, sustaining minor injuries.

On December 11, 2017, the New York City Department of Education (“DOE”) sent petitioner a notice of superintendent’s suspension which indicated that a long-term suspension hearing would be convened on December 18, 2017.  The notice charged the student with constituting a danger to the health, safety, welfare and morals of other students when he:

[U]sed his body to ran [sic] into Dean Ehrlich, knocking him to the ground, causing Dean Ehrlich to strike his head on the floor and to sustain a small cut and swelling to his wrist.

The notice also stated that the student had been suspended pending a long-term suspension hearing because he “pose[d] a continuing danger to persons or property or an ongoing threat of disruption to the academic process.”

The long-term suspension hearing, which was rescheduled at petitioner’s request, was held on January 10, 2018.  The Chief Executive Officer in respondent’s Office of School and Youth Development (“CEO”) served as the hearing officer at the long-term suspension hearing.

In a written decision dated January 12, 2018, the CEO found the student guilty of the charged conduct and imposed a suspension of 41 school days.  The CEO’s decision also stated that the student was eligible for “possible early reinstatement on January 31, 2018” and stated that petitioner had been informed of this “via mail on January 10, 2018.”

On March 1, 2018, petitioner appealed the CEO’s decision to respondent.  In a written decision dated April 20, 2018, respondent upheld the CEO’s determinations with respect to guilt and penalty.  This appeal ensued.

Petitioner contends that the student was justified in committing the conduct which he engaged in on December 11, 2017 based on a defense of necessity.[1]  Specifically, petitioner argues that the student needed to leave school to pick up his younger brother, who otherwise would have no one to pick him up at the bus stop.  Therefore, petitioner argues that respondent erred by refusing to dismiss the charges against the student based upon the doctrine of necessity which, petitioner argues, offers a complete defense to the charged conduct.

Respondent contends that his determination was rational and not arbitrary or capricious.  With respect to petitioner’s claimed defense of necessity, respondent argues that he considered and rejected this argument, as did the CEO.  Respondent further argues that the appeal must be dismissed, in part, as moot because the student has already served the suspension at issue.

First, I must address a procedural matter.  Petitioner submitted a reply in this matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Further, respondent is correct that the appeal must be dismissed, in part, as moot because the student has served the suspension at issue in this appeal.  Nevertheless, petitioner seeks expungement of the suspension from the student’s record.  Therefore, to the extent petitioner seeks expungement, this claim remains live (Appeal of C.B.R., 57 Ed Dept Rep, Decision No. 17,211; Appeal of D.O., 53 id., Decision No. 16,543; Appeal of L.L., 51 id., Decision No. 16,334).

Turning to the merits, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

In the petition, petitioner acknowledges that the student “pushed past the dean” and that the “dean fell to the ground as my son tried to move through the doorway.”  However, she argues that the student’s suspension should be overturned based on the defense of justification, which she claims was not considered below.

Petitioner’s claim that the CEO and respondent did not consider her claim of justification is not supported by the evidence in the record.  The CEO specifically noted that “[i]t was argued that the ... suspension should be dismissed based on a defense of necessity ....”  Assessing this claim, the CEO found that the student’s failure to adhere to school rules “was inexcusable and created a dangerous situation where school personnel was placed at risk needlessly.”  Similarly, respondent affirmed the CEO’s findings in this respect, stating that “[t]here is nothing in the record before me to indicate that the CEO’s determination with respect to this issue is improper or that [the student’s] use of force was justified.”  Respondent specifically reasoned that:

The record establishes that [the student] and his mother knew that he had to leave school early that day and neither notified school officials of this fact or of their specific concern[s] regarding [the younger brother].  Moreover, while [the student] may have panicked under the circumstances, his use of physical force to push past the dean and knock him to the ground was entirely improper, and nothing in the record indicates that he articulated any reason for leaving other than that he had to pick up his brother.

Thus, the record indicates that both the CEO and respondent considered petitioner’s claim.  The fact that the CEO and respondent disagreed with petitioner does not mean that they failed to consider her argument.

Petitioner additionally argues that the student’s conduct was justified based upon the doctrine of necessity.  In support of her argument, petitioner cites case law applying the defense of justification set forth in Penal Law §§35.00 et seq.  As the Court of Appeals has recognized, although student disciplinary hearings are serious and adversarial in nature, students are not entitled to the procedural protections of a criminal trial (Board of Education of Monticello Central School District v. Commissioner of Education, 91 NY2d 133).  Prior decisions of the Commissioner have held that physical violence by a student is not acceptable and have generally declined to accept a student’s justification for fighting or other violent acts except in cases of self-defense (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323 [student’s fighting not excused where she sought to defend her brother]; Appeal of a Parent of a Student with a Disability, 53 id., Decision No. 16,574 [conduct provoked by victim]; Appeal of R.Y., 49 id. 336, Decision No. 16,046 [student alleged to be the victim of bullying and harassment]; Appeal of Steven and Mary Ann M., 39 id. 785, Decision No. 14,380 [alleged threats by victim]; but see e.g. Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,335 [student’s actions justified as self-defense under the circumstances]). 

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).  Here, as noted above, the record indicates – and petitioner acknowledges on appeal - that the student “pushed past the dean” and that the “dean fell to the ground as [the student] tried to move through the doorway.”  Petitioner does not claim, and the record does not show, that the student acted in self-defense; i.e., that he engaged in conduct which was necessary to protect himself from attack (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,335).  Therefore, a claim of self-defense does not apply under the circumstances and I find no basis on this record to overturn the suspension. 

Turning to the issue of penalty, 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 a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,311; Appeal of B.M., 48 id. 441, Decision No. 15,909). 

Here, I do not find that the student’s actions were justified under the circumstances.  First, the record reflects that the student had notice before school started on December 11, 2017, that petitioner wanted him to leave school early and meet his younger brother at the bus stop.  According to the record, petitioner informed the student on the morning of December 11, 2017 before he left the house for school that he would need to pick up his brother that afternoon at approximately 2:20 p.m.  Thus, I affirm respondent’s finding in this respect.

Second, the record reflects that the student would not have risked failing to pick his brother up by complying with Dean Ehrlich’s reasonable directives.  The encounter with Dean Ehrlich took place at approximately 12:50 p.m.  Petitioner testified that the student’s commute to his younger brother’s bus stop could take “[a]nywhere from 45 minutes to an hour,” and that the younger brother would need to be picked up at 2:20 p.m.  Thus, even assuming the longest commute time estimated by petitioner, the student had 30 extra minutes before he had to leave the school.  Therefore, the student’s failure to pursue an appropriate, alternative course of action by complying with Dean Ehrlich’s reasonable directives and reporting to the guidance office was not justified under the circumstances.

Petitioner makes much of the fact that the student’s younger brother has a disability and that, if no one was able to pick him up at the bus stop, he would have been brought to a police precinct.  But, as respondent found, there is no evidence that the student or his parent informed Dean Ehrlich or any other school employee of these circumstances; the record merely reflects that the student told Dean Ehrlich he “had to go” and that he “had to go get his brother.”  A school administrator cannot reasonably be expected to allow a student to leave school early based solely upon the student’s insistence that he or she needs to leave in derogation of district policy.  Moreover, the record reflects that the student’s younger brother was three years old at the time of the incident, and that Dean Ehrlich did not have any knowledge of the younger brother’s circumstances.

Finally, I do not find a suspension of 41 days to be excessive under the circumstances.  The record indicates that the student pushed a staff member out of his way, causing the staff member to fall to the ground and sustain physical injuries.  Physical violence in public schools should not be tolerated, and respondent was well within its discretion to impose a suspension of 41 days for such conduct (Appeal of Doe, 57 Ed Dept Rep, Decision No. 17,323; Appeal of C.B.R., 57 id., Decision No. 17,211).[2]

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

THE APPEAL IS DISMISSED.

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