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Decision No. 13,857

Appeal of LAMAR REEVES, SR., on behalf of LAMAR REEVES, JR. from action of the Board of Education of the City School District of the City of Buffalo regarding student suspension.

Decision No. 13,857

(January 20, 1998)

Barbara M. Sims, Esq., counsel for petitioner

Hon. Michael B. Risman, Acting Corporation Counsel, attorney for respondent, Rosemary Gavigan Bis, Esq., of counsel

MILLS, Commissioner.--Petitioner Lamar Reeves, Sr. appeals the determination of the Board of Education of the City School District of the City of Buffalo ("respondent") to suspend his son, Lamar Reeves, Jr., and transfer him to another school. The appeal must be sustained in part.

On December 4, 1996, at approximately 8:15 a.m., Lamar Reeves, Jr. was involved in an altercation that started in the street in front of McKinley High School, and ended on the edge of the lawn outside the school. The victim, M.J., alleged that Lamar assaulted him. According to petitioner, at least two other students were involved in the incident. The police were called and Lamar was arrested at his home. Lamar was arraigned and released on his own recognizance after signing an order of protection to stay away from M.J. Lamar and his father then went to the principal's office where Lamar signed a statement regarding the incident. On December 6, 1996, Lamar was suspended from school. The charge read: "That on or about 12/4/96, Lamar Reeves, a student at McKinley High School, allegedly admitted to having assaulted a student, M.J., which resulted in his being arrested." The letter informed petitioner that a suspension hearing was scheduled for December 12, 1996.

A formal suspension hearing was held on December 12, 1996 before a hearing officer. M.J., Lamar, petitioner and the Assistant Principal Theresa Pope testified at the hearing. The superintendent issued a decision on December 16, 1997, upholding the charge against Lamar. The superintendent's letter stated in part that "[t]he disposition is that Lamar Reeves will not return to McKinley High School. He will be assigned to Emerson Vocational High School." On December 20, 1996 petitioner requested that respondent stay the superintendent's determination. Respondent scheduled a hearing for March 12, 1997, at which time petitioner and Lamar were afforded an opportunity to address the board. Respondent board upheld the superintendent's decision on March 13, 1997. This appeal was commenced on March 27, 1997. I granted petitioner’s motion for interim relief on April 14, 1997.

Petitioner contends that the suspension process was procedurally and substantively defective, that Lamar was selectively disciplined and that his constitutional rights under the fifth and fourteenth amendments were violated. Petitioner alleges that Lamar signed the statement at the urging of the principal, who failed to warn him of the consequences of discussing the incident with her or signing a written statement. In addition, petitioner asserts that his counsel telephoned the principal's office prior to the December 12 superintendent’s hearing to request the names of others involved in the incident and obtain copies of their statements. Petitioner argues that those statements contained exculpatory information to the effect that Lamar was neither the aggressor nor the sole participant in the altercation. Petitioner’s counsel did not receive those statements until December 18, after the hearing, even though counsel made a second request on December 13 in order to admit the statements into the record. Petitioner alleges that he was denied access to that exculpatory information and the superintendent's decision was therefore made without benefit of the full record of witnesses' statements, since the letter transmitting the statements to counsel stated that the superintendent would make his decision solely on the information revealed in the proceeding before the hearing officer.

Petitioner also asserts that respondent’s decision was arbitrary and capricious because it was made in part on statements by the superintendent and principal that were outside of the record. Petitioner claims that the superintendent and principal were present and the principal was allowed to add to the record during the March 12, 1997 hearing before respondent. Petitioner asserts that the principal testified that the matter could have been resolved by the parents but that M.J.’s mother refused to consent to Lamar’s returning to McKinley High School. Petitioner also contends that ex parte communications took place among respondent, the principal, the superintendent and their counsel. Finally, petitioner contends that the penalty is excessive.

Respondent asserts that petitioner was afforded due process at every stage of the suspension and appeal hearings: petitioner was represented by counsel throughout the process, had the right to call witnesses on his behalf and was able to confront and cross-examine respondent’s witnesses. Respondent contends that there were no ex parte communications at the March 12 board meeting; that the superintendent’s decision to suspend Lamar and respondent's affirmance of that decision were supported by a rational basis; and that Lamar’s transfer to Emerson High School was a proper penalty for his misconduct. Respondent asserts that although it was not required to, it afforded petitioner and Lamar the opportunity to address the board at the March 12 hearing, and that it considered as part of the record the allegedly exculpatory statements that had not been included before the hearing officer and superintendent. Respondent denies that any ex parte communications occurred and contends that when the board began its discussion on the merits of the appeal, the room was cleared of all persons except board members and the board’s counsel.

Respondent further asserts that the determination is supported by the testimony of the witnesses, including Lamar, and the findings of the hearing officer. Finally, respondent argues that the transfer was reasonable in light of the order of protection because it was not feasible for Lamar to continue to attend McKinley High School in the same program and to share the same classroom as M.J. Under the circumstances, respondent argues that the penalty was appropriate.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Catherine B., 37 Ed Dept Rep 34; Appeal of A.B., 36 id. 155; Appeal of Derosa, 36 id. 336; Appeal of Homick, 34 id. 150). Although Lamar and M.J. dispute who was the aggressor, review of the hearing officer’s report and the hearing transcript reveals that Lamar admitted hitting M.J. when he was down in the mud and striking him with his fists. Thus, there is competent evidence that Lamar participated in the charged conduct.

Furthermore, the hearing officer weighed the credibility and demeanor of the witnesses, including Lamar and M.J. With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of the hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of Hamet, 36 Ed Dept Rep 174; Appeal of McCreery 34 id. 426). Review of the hearing transcript reveals that the hearing officer’s findings appear reasonable and constitute sufficient and competent evidence that Lamar participated in the charged conduct. I find no reason to substitute my judgment for that of the hearing officer as to the credibility of the witnesses. Consequently, there is no basis to overrule respondent board’s decision upholding the determination of guilt.

Petitioner contends that his son was deprived of his due process rights because he was denied timely access to the statements of other witnesses and the opportunity to question those witnesses. Education Law "3214(3)(c) provides in pertinent part that:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.

Although petitioner’s counsel did not receive copies of the alternate witness statements she requested until after the hearing, review of the hearing transcript reveals that she did not object to that fact at the commencement of the hearing nor did she request an adjournment to obtain the statements. In other words, no due process claim was presented at the time of the hearing that could have been addressed.

Moreover, the record shows that petitioner’s counsel had ample opportunity to present evidence on Lamar’s behalf, including the chance to question Lamar directly and to cross-examine the victim of the alleged assault, M.J., as well as Assistant Principal Pope, who testified against Lamar (see, e.g., Appeal of Johnson, 34 Ed Dept Rep 62). Counsel also solicited from M.J. the names of his two cousins who were present at the incident, another witness and three other people who were with Lamar at the time. However, there is nothing in the transcript indicating that petitioner’s counsel attempted to have these witnesses appear, once their names were known, or that she requested an adjournment to procure their statements. Moreover, her own client presumably could have provided the names of at least some of the witnesses who might have offered exculpatory testimony. Accordingly, on the facts presented here, there is no persuasive evidence that petitioner was deprived of his right to question the witnesses against him.

Petitioner also requests that the penalty be set aside as excessive. In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved (Appeal of Hamet, supra). A penalty must be reasonable in light of the harm incurred and the degree of danger presented. With regard to the penalty, the superintendent’s December 16, 1997 decision stated that "[t]he disposition is Lamar Reeves will not return to McKinley High School. He will be assigned to Emerson Vocational High School." This "reassignment" clearly constitutes a transfer. However, a transfer is not an authorized penalty in student discipline cases under Education Law "3214 (Appeal of a Student with a Disability, 36 Ed Dept Rep 273; Appeal of a Student with a Disability, 34 id. 556). As the Commissioner determined in Appeal of a Student with a Disability, 34 Ed Dept Rep 556 at 561:

Education Law "3214(3)(c) authorizes suspension as a penalty for student misconduct, not the transfer of a student to another school. Education Law "3214(5) authorizes a principal to make a recommendation to transfer a student, who has not been determined to have a handicapping condition, when such a transfer will benefit the student… The transfer was not voluntary, and, therefore, was governed by the statutory requirements of Education Law "3214(5). Education Law "3214(5)(b) requires that prior to an involuntary transfer, the person in parental relation to the student shall be provided with written notice of the proposed transfer as well as an opportunity for an informal conference with the principal recommending the transfer. The parent has a right to be accompanied by counsel or any other individual of his or her choice at this conference. If, at the conclusion of such an informal conference the principal continues to recommend the student's transfer under Education Law "3214(5)(d), the person in parental relation also has the right to request a hearing before the superintendent or a designated hearing officer consistent with the due process requirements of "3214(3)(c). The purpose of this hearing is not to establish a student's guilt of any specific conduct, but to determine whether the proposed transfer would be beneficial to the student.

There is nothing in the record indicating that petitioner was aware of respondent's contemplated transfer of Lamar or that he was afforded the opportunity required by "3214(5) to contest this transfer. A hearing to determine whether a student should be transferred is not the same as a hearing for disciplinary reasons. As indicated above, the focus and purpose of the two hearings are very different. Therefore, respondent's use of the disciplinary hearing to effect an involuntary transfer was improper and the transfer must be invalidated.

Respondent argued in its opposition to petitioner’s request for a stay that the transfer was reasonable in light of the pending criminal action and the order of protection issued directing Lamar to stay away from M.J. However, those issues were never offered as a basis for the transfer at the time of the hearing, and, even if they had been, a separate hearing for transfer purposes would have been required by statute.

In this case, since Lamar had already returned to McKinley pursuant to my interim order of April 14, 1997 (and eventually graduated), the transfer was effectively nullified. Nonetheless, the transfer was improper and must be removed from Lamar’s record. Since I am invalidating the transfer, I decline to address petitioners remaining arguments. However, I must note one additional issue. Respondent board asserts that it considered the other witnesses’ statements in its review of the record. Education Law "3214(3)(c) provides that "an appeal will lie from the decision of the superintendent to the board of education who shall make its decision solely upon the record before it." Accordingly, respondent board should have considered only the record that the superintendent considered in rendering his decision. I admonish respondent to adhere to the statutory requirements in future suspension proceedings.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent expunge Lamar’s record of his transfer.

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