MILLS, Commissioner.--Petitioners, a student at a Bronx high school ("petitioner student") and his mother, appeal the October 7, 1998 written decision and October 21, 1998 formal resolution of the Board of Education of the City School District of the City of New York ("respondent"), which affirmed the decision of the Superintendent of Bronx High Schools ("superintendent"), to transfer petitioner student from the Health Opportunities High School ("HOPS") to another high school. The appeal must be sustained in part.

Petitioner student attended HOPS in January 1998. On January 15, 1998, he became involved in a fight with another student ("LC"), during which petitioner picked up a leg from a broken chair and chased LC down the hall. As a result of this incident, his mother was advised by letter dated January 22, 1998, that petitioner student was suspended from HOPS effective January 23, 1998 and was reassigned to the Bronx Outreach Alternative Instruction Center.

The superintendent issued a notice on January 23, 1998, charging petitioner student with vandalizing school property and striking the other student with a chair leg, and advising petitioners that a suspension hearing would be held on January 29, 1998. Paragraph 7 of this notice listed the possible dispositions that the superintendent might order as a result of the hearing if the charges were upheld. The listed dispositions specifically included "transfer to another school" and "transfer to a part time or non-diploma site," as well as various periods of continued or extended suspension. Paragraph 4 of the notice also noted that, if the charges were upheld, the student's records may be reviewed and used in considering the "child's school placement."

The hearing commenced on January 29, 1998. The hearing officer explained that the superintendent would issue one of three possible dispositions: 1) reinstate the student to HOPS, 2) transfer him to another high school, or 3) one option of a "four prong type of suspension," i.e., continued or extended suspension. The hearing was then adjourned at the student's request, and reconvened on February 6, 1998. The hearing officer heard testimony from three witnesses, including the student, and received six statements into evidence. The hearing officer advised the parties that he would receive anecdotal and prior disciplinary records, without discussion of their contents, for use later in the disposition phase to assist the superintendent in making an appropriate decision for placement, which might be reinstatement or transfer to another school. The hearing then concluded.

The Bronx High School Superintendent delegates to his Executive Assistant for Pupil Personnel Services ("executive assistant") the responsibility and authority to review findings of fact with hearing officers and to make dispositional decisions on behalf of the superintendent in suspension cases. In a telephone conference on or about February 26, 1998, the hearing officer advised the executive assistant in detail of his findings of fact resulting from the hearing, and his conclusion that there was substantial and competent evidence that petitioner student had vandalized school property. The superintendent accepted these findings. The executive assistant then reviewed the student's academic progress and anecdotal record to determine an appropriate disposition. The executive assistant determined, and the superintendent directed, that the appropriate disposition was to transfer the student out of HOPS.

By mailgram dated March 2, 1998, petitioners were advised that petitioner student would be transferred to Christopher Columbus High School ("Christopher Columbus") effective February 9, 1998 (these are the dates referenced in the record; neither party provided a copy of the mailgram). The mailgram was followed by a copy of the superintendent’s written decision dated April 1, 1998. The superintendent dismissed the charge of striking student LC with a chair leg, but sustained the charge of vandalizing school property and ordered petitioner student's transfer to Christopher Columbus. On June 26, 1998, petitioners appealed the decision to the Chancellor of the Board of Education, who denied the appeal and sustained the superintendent's determination by order dated July 31, 1998. Petitioners appealed the determination to respondent on August 21, 1998. Respondent dismissed the appeal by written decision dated October 7, 1998, which was formally ratified by respondent at its meeting on October 21, 1998. This appeal ensued. A request for interim relief was denied on December 21, 1998.

Petitioners raise a number of substantive challenges to respondent's decision. First, petitioners contend that the "competent and substantial evidence" standard employed by the school district at the disciplinary hearing is unconstitutional, and that due process requires the district to prove misconduct by no less than a preponderance of the evidence. Second, petitioners contend that transfer of a student as a result of a superintendent's disciplinary hearing violates Education Law "3214. Third, petitioners allege that the transfer discriminated against petitioner student because of alleged disabilities, which included hyperactivity and Attention Deficit Disorder ("ADD"), in violation of "504 of the Rehabilitation Act and the Individuals with Disabilities Education Act. Petitioners further allege that the decision was irrational and arbitrary, because the evidence clearly showed that petitioner student acted in self-defense, the investigation of the incident was biased because district officials failed to interview witnesses who were friends of petitioner student, the hearing officer allowed illegal evidence of petitioner student’s prior acts into the record during the fact-finding phase of the hearing, and the hearing officer interfered with petitioners' access to subpoenaed witnesses. Petitioners additionally contend that the superintendent violated Education Law "3214(3) by issuing a mailgram on March 2, 1998 transferring the student from HOPS prior to issuing a decision on the disciplinary hearing. An issue not raised before the Chancellor but raised in the appeal to respondent alleges that it was reversible error for the superintendent to have notified petitioners of the disposition by mailgram before the hearing officer had issued his report to the superintendent. Petitioners request that the suspension and transfer be vacated, and that petitioner be reinstated to HOPS.

Respondent asserts that the evidence fully supports the superintendent's decision, and that the appropriate legal standard of "competent and substantial evidence" was applied in the disposition of the charges. Respondent denies any discrimination on the basis of disability, contending that the student had not been classified as disabled nor had any notice been provided to respondent that the student was disabled. Respondent denies the remaining challenges to the conduct of the hearing and issuance of the disposition, and raises a procedural objection that the appeal is untimely because it was commenced 43 days after respondent's October 7, 1998 decision. Respondent also alleges that the student never actually attended Christopher Columbus, but was intermittently hospitalized during March and April 1998 and enrolled at University Heights High School in September 1998.

I will initially address the timeliness objection. Respondent issued a written decision denying petitioners' appeal on October 7, 1998. Respondent then "formally ratified" that decision at its October 21, 1998 meeting. This appeal was served on respondent on November 19, 1998, 43 days after the written decision but only 29 days after respondent's formal ratification. Respondent does not explain whether its written decision issued on October 7, 1998 had full force and effect before its formal ratification of that decision on October 21, 1998. An appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR "275.16). The date from which the 30-day limitation runs is the date of respondent's final determination (Appeal of a Student Suspected of Having a Disability, 38 Ed Dept Rep 52, Decision No. 13,980; Appeal of Matero, 36 id. 242, Decision No. 13,713). Upon the record before me, it is unclear whether the October 7 or the October 21, 1998 action actually constituted respondent's "final" decision, and I therefore decline to dismiss the appeal as untimely.

I sustain the appeal insofar as petitioner student was transferred from HOPS to Christopher Columbus as a result of the superintendent's suspension hearing on February 6, 1998. Such a transfer imposes a disciplinary penalty that is not authorized by Education Law "3214 and is therefore invalid (Appeal of Reeves, 37 Ed Dept Rep 271, Decision No. 13,857; Appeal of a Student with a Disability, 36 id. 273, Decision No. 13,723; Appeal of a Student with a Disability, 34 id. 556, Decision No. 13,408). As the Commissioner determined in Appeal of a Student with a Disability, 34 id. at 561:

In Appeal of Reeves, supra, I overturned a disciplinary determination that upheld misconduct charges against a student and imposed a transfer from one high school to another as the penalty for the misconduct. I noted that there was nothing in the record indicating that petitioner was aware of respondent's contemplated transfer of the student, or that he was afforded the opportunity required by "3214(5) to contest this transfer. I further noted that a hearing to determine whether a student should be transferred is not the same as a hearing for disciplinary reasons, and that the focus and purpose of the two hearings are very different. Therefore, I determined that respondent's use of the disciplinary hearing to effect an involuntary transfer was improper.

Respondent in the instant appeal concedes that "3214 includes separate provisions spelling out the notice and hearing procedures that a school district must follow to suspend a student or to transfer a student. However, respondent distinguishes its procedures from those invalidated in Appeal of Reeves, and contends that its procedures comply fully with "3214(3) regarding suspension and also with "3214(5) regarding transfer. Respondent relies upon Appeal of Campbell, 27 Ed Dept Rep 288, Decision No. 11,949, in support of its contention that an involuntary transfer can be effected in a suspension hearing if the procedural prerequisites are provided to the student and parents, unlike the situation in Appeal of Reeves, supra. Notwithstanding respondent's assertions, I do not find that the suspension hearing procedures employed by respondent provide the requisite notice and consideration of involuntary transfer that is required by "3214(5).

The first step in initiating an involuntary transfer is a written recommendation from the school principal (Education Law "3214[5][a]). Section 3214(5)(b) permits a principal to initiate a non-requested transfer where it is believed that the student would benefit from the transfer, or when the student would receive an adequate and appropriate education in another school program or facility. There is nothing in respondent's suspension hearing procedures that provides for any type of transfer recommendation from a student's principal prior to imposition of involuntary transfer as a penalty following a superintendent's suspension hearing, nor does respondent identify any procedure that allegedly affords substantial compliance with the requirement for a written recommendation from the principal.

Second, the principal may not initiate such a recommendation for involuntary transfer unless the parents and student are given written notification of the consideration of a transfer recommendation, and an opportunity for an informal conference with the principal at which counsel may be present ("3214[5][b]). Only after this conference, and if the principal concludes that the student would indeed benefit from the transfer or would receive an adequate and appropriate education elsewhere, may the principal issue a recommendation of transfer to the superintendent ("3214[5][c]). The written recommendation must include a description of the behavior and/or academic problems indicative of the need for transfer, a description of alternatives explored and prior actions taken to resolve the problems (id.), and a copy of the written recommendation must be provided to the parents.

Respondent's suspension hearing procedures provide none of these mandated safeguards. Respondent contends that its procedures provide notice to parents and students that transfer may be considered in the context of a suspension hearing, referencing its Discipline Code listing vandalism of school property as a "level 2-5 infraction" for which the maximum penalty is a "[s]uperintendent's suspension which may result in transfer to another school or continued suspension for a fixed period of 6 to 30 school days." Respondent also notes that the notice sent to petitioners on January 23, 1998 included a notice that transfer was a possible penalty that could be imposed if the charges were sustained. Additionally, during the January 29, 1998 conference among the hearing officer and the parties, the hearing officer explained that transfer to another school was one of the possible dispositional decisions that the superintendent was authorized to make following the suspension hearing. Respondent contends that these steps complied with the written notice requirement of "3214(5), and that, unlike Reeves, petitioners were on notice that an involuntary transfer was a possible result of the hearing.

Respondent further contends that the suspension hearing satisfies the requirement in "3214(5) for a conference between the principal and parents for the purpose of determining whether a transfer would benefit the student or whether the student would receive an appropriate and adequate education in another school program ("3214[5][b] and [c]). Respondent argues that its suspension hearings, conducted in compliance with the Chancellor's regulations, address the appropriate placement for the suspended student during the second phase of the disciplinary hearing, the dispositional phase, and thereby provide a forum for consideration of whether the student would benefit from a transfer. If charges are sustained in the fact-finding phase of the suspension hearing, the superintendent considers the student's age, prior record and evidence introduced during the dispositional phase of the hearing in making a decision as to where the student should be placed. Respondent claims that the suspension hearings therefore serve the same purpose as the conference required under "3214(5) and thus satisfy the conference requirement.

I disagree. Respondent purports to satisfy the conference requirement by having first discussion of a possible transfer with the student and parents at the disciplinary fact-finding phase of the very hearing that will ultimately result in a determination whether such a transfer will take place. This process does not comply with "3214(5). Prior to the informal conference with the principal, the parents are entitled to specific written notice that a transfer is being recommended. At the informal conference, the parents and student are then able to address directly the issues of whether the transfer would benefit the student or whether the student could receive an adequate and appropriate education in another school program or facility.

Generalized notice in a Discipline Code or suspension notice that a transfer "may" result from a superintendent's suspension hearing, among a list of other possible dispositions, does not satisfy this requirement for specific prior written notice. Additionally, at the time of the fact-finding phase of the suspension hearing, there has not yet been a decision as to whether or not the student is guilty of the charged misconduct, much less whether a transfer is actually being considered as a disposition or to which school the student may be transferred.

Respondent's procedures clearly separate the "fact-finding phase" of a suspension hearing (consisting of a hearing before a hearing officer, at which time testimony and other evidence is introduced as to whether the student actually committed the charged misconduct) from the "dispositional phase" (consisting of a review by the superintendent of the student's school records and determination of an appropriate disposition). Respondent's procedures do not allow evidence that may be relevant to the ultimate disposition, such as a student’s prior disciplinary history or other factors, but which do not relate to the facts underlying the charged misconduct to be discussed before the hearing officer during the fact-finding phase. Because the parents and student do not know whether a transfer will result from the hearing or what the recommended transfer placement will be, they cannot know whether they must bring in witnesses or present evidence to address the statutory criteria for such a transfer. It also appears quite possible that such evidence may not relate directly to the charged misconduct, and may place parents and students in the awkward position of having to present evidence to the fact-finding hearing officer which is relevant to the potential involuntary transfer but prejudicial to the hearing officer's determination of the immediate charges pending against the student.

Respondent's procedures further do not satisfy the requirement for a due process hearing on the transfer once the superintendent has decided to pursue a transfer recommendation. Section 3214(5) provides that, after the written notice to the parents and the informal conference with the principal, the principal may issue a recommendation of transfer to the superintendent. Upon receiving this recommendation from the principal, and making an independent determination to consider the recommendation, the superintendent must advise the student and his parents of the proposed transfer and their right to a fair hearing which is to be conducted in the same manner as a suspension hearings ("3214[5][d]).

Respondent's suspension procedures do not provide any opportunity for a fair hearing after the parents and the student are advised of the superintendent's decision to pursue the student's transfer. The record indicates that the "dispositional phase" of the instant suspension hearing consisted of the executive assistant's review of the student's records to determine an appropriate disposition, with no further input by the parties before the final disposition was issued. There is no provision for a hearing to consider a recommended transfer, no opportunity for the parents to address whether the specific proposed transfer would benefit the student or whether the student could receive an adequate and appropriate education in the proposed transfer program or facility, no opportunity for the parents and student to present witnesses or evidence regarding the specific recommended transfer, and no provision for a decision by the superintendent that considers any evidence presented by the parents and student regarding the transfer. These steps are the very essence of the fair hearing right provided by "3214(5)(d) after receipt of notice of a recommended involuntary transfer, and respondent's procedures do not provide these mandated safeguards.

In summary, in contrast to respondent's suspension procedures, an involuntary transfer under Education Law "3214(5) contemplates a transfer recommendation prepared by a principal, written notice to the parents of the recommended transfer and the grounds for the recommendation, independent consideration by the superintendent as to whether to proceed on the principal's recommendation, and an opportunity for a fair hearing if the superintendent decides to consider a transfer recommendation. Mere inclusion of transfer as a generic possible disposition in a suspension hearing and a purported opportunity to object to possible consideration of transfer for the first and only time at the fact-finding phase of the suspension hearing, before any finding of guilty on the underlying misconduct charges and before a transfer decision has even been made, do not satisfy the requirements of "3214(5) for involuntary transfers. To the extent that the decision in Appeal of Campbell, supra, is inconsistent with this determination, Appeal of Campbell is overruled.

Respondent also asserts that, in including transfer as a possible disposition in a suspension hearing, it is following a 1982 stipulation of settlement in a class action entitled Boe v. Board of Education of the City of New York, 80 Civ. 2829 (S.D.N.Y. 1982). This action appears to have been a class action lawsuit instituted by high school students in New York City, claiming that the superintendents' procedures for suspending high school students violated the Education Law and the Fourteenth Amendment to the United States Constitution. Neither the State Education Department nor any of its employees appear to have been parties to this action or the stipulation of settlement.

The stipulation dated November 1982 ("Boe stipulation") states at paragraph 2(b) that school changes based on a history of disruptive behavior, as recorded in a student's anecdotal record, are involuntary transfers which must be accomplished in accordance with the provisions of Education Law "3214(5) and regulations to be promulgated by the Chancellor upon approval of the stipulation. Paragraph 14(b) of the Boe stipulation states that the hearing officer must explain on the record at the hearing that possible dispositions include being returned to the student's school, either immediately or after a longer period of suspension, or being transferred. Paragraph 23 provides that, if the superintendent upholds the suspension, he may a) return the student to the school from which he was suspended, b) transfer the student to another school, or c) invoke any other lawful disposition.

I am not acquainted with the negotiations among the parties and the court underlying the Boe stipulation, nor do I know how this specific stipulation has been addressed and implemented over the intervening 18 years. I am thus not in a position to construe the meaning of the stipulation's terms. However, it does not appear from the face of the stipulation that the court reviewed for legal sufficiency the actual regulations promulgated or procedures established by respondent in response to the Boe stipulation, and the court specifically mandated in paragraph 2(b) of the stipulation that any procedures for involuntary transfer of disruptive students must comply with "3214(5). It is my determination that respondent’s current procedures which permit the involuntary transfer of a student as a permissible disposition of a student disciplinary hearing violates "3214(5).

Petitioners further claim that the district’s use of the "competent and substantial evidence" standard of proof in the suspension hearing violated the student's constitutional right to due process, and that any standard of proof less than a preponderance of the evidence violates New York State law, the Due Process Clause of the Fourteenth Amendment and the Boe stipulation. In support of this contention, petitioners cite Smyth v. Lubbers, 398 F.Supp. 777 (E.D. Mich. 1977). In Smyth, a federal district court ruled that, in a case where adult students at a college were charged in school disciplinary actions with committing acts that were also crimes, due process required at least a preponderance of evidence as the standard of proof rather than substantial evidence.

The Smyth decision is not binding on New York courts or the New York State Education Department, and I am aware of other federal district court opinions which have ruled to the contrary and accepted the substantial evidence standard of proof in student disciplinary proceedings (see, e.g., Gorman v. University of Rhode Island, 646 F.Supp. 799 [D.R.I. 1986], rev'd in part on other grounds, 837 F.2d 7 [1st Cir. 1988]; Morale v. Grigel, 422 F.Supp. 988, 1002 [D.N.H. 1976]; Givens v. Poe, 346 F.Supp. 202 [W.D.N.C. 1972] [involving public school students]; Black Students of North Fort Myers Jr.-Sr. High School v. Williams, 335 F.Supp. 820 [M.D.Fla. 1972] [involving public school students]). A 1987 article in the Journal of College and University Law, entitled "Due Process Rights in Student Disciplinary Matters," stated that the "substantial evidence standard remains the norm," although it noted the anomalous decision in Smyth v. Lubber, and a decision entitled McDonald v. Board of Trustees of Univ. of Ill., 375 F.Supp. 1253 (S.D.Miss. 1974) which espoused a lesser, "some evidence" standard (14 J.C. & U.L. 359, 379-80). A much more recent article in the Spring 1995 volume of the same journal, entitled "Protecting the Student: A Critique of the Procedural Protection Afforded to American and English Students in University Disciplinary Hearings," similarly stated that university officials "generally have the burden of proving by 'substantial evidence' that a student has violated a code of conduct," although it too noted the contrary decisions in Smyth and McDonald (21 J.C. & U.L. 785, 798).

I do not find that there is any controlling case law in New York that casts doubt on the propriety of using a substantial evidence standard of proof in a student disciplinary proceeding. Petitioners rely upon a number of New York cases, but none of these decisions provide a clear finding that use of the competent and substantial evidence standard of proof in a student disciplinary proceeding violates any statutory or constitutional rights. Petitioners' reference to Martin v. Ambach, 111 AD2d 1009 (3d Dept 1985), is unavailing. Although in Martin the Appellate Division disapproved the use of a substantial evidence standard of proof in a teacher disciplinary proceeding rather than a preponderance of the evidence standard, this holding was based solely on the fact that the traditional standard was preponderance and departure from that standard in this particular proceeding without any explanation for the different treatment was arbitrary and capricious. The court specifically stated that it was not addressing whether a standard of proof of less than a preponderance of the evidence in administrative disciplinary proceedings involving licensed or tenured professionals was constitutionally permissible (id. at 1010).

In contrast to Martin, the State Education Department and the courts in New York have consistently accepted and applied the "competent and substantial evidence" standard of proof in student disciplinary proceedings. It has long been recognized in decisions by the Commissioner pursuant to "310 of the Education Law that charges in a student disciplinary action must be established by competent and substantial evidence (e.g., Appeal of Esther F., 39 Ed Dept Rep 357, Decision No. 14,258; Appeal of Bullock, 13 id. 240, Decision No. 8808; Appeal of Rodriguez, 8 id. 214, Decision No. 8015). The New York Court of Appeals and the Third Department applied the competent and substantial evidence standard in Bd. of Educ. of the Monticello Central School District v. Commissioner of Education, 235 AD2d 734 (3d Dept), aff'd, 91 NY2d 133, 140-41 (1997). There is thus no departure from the traditional standard of proof in the instant disciplinary proceeding.

Petitioners' citations to other New York decisions are similarly unpersuasive. The decisions in Matter of Lee TT. v. Dowling, 87 NY2d 699 (1996), and Matter of Gerald G. v. N.Y. Department of Social Services, 248 AD2d 918 (3d Dept 1998), are based on a line of federal and state cases specifically weighing the due process requirements and constitutionally mandated standards of proof for hearings involving expungement of reports of child abuse and mistreatment. Because due process is flexible and calls for procedural protections as the particular situation demands (Mathews v. Eldridge, 424 U.S. 319 [1976]; Morrissey v. Brewer, 408 U.S. 471 [1972]), decisions as to the constitutional minima in such expungement hearings do not necessarily provide guidance as to the due process requirements for student disciplinary proceedings.

Petitioners' reference to Spaid v. Liverpool Cent. School District, 169 Misc. 2d 41 (Sup Ct Onondaga Co 1996), is also distinguishable. Spaid is essentially the court's interpretation of what the words "substantial evidence" meant as used in "803 of the Retirement and Social Security Law pertaining to retroactive membership in a public retirement system. I also note that a subsequent decision by the Appellate Division, Third Department, involving "803 and referencing Spaid only as another case involving the same school district and similar issues, applied the "substantial evidence" standard without discussion as to the nature of this standard or due process requirements (Matter of Antwerp v. Board of Education, 247 AD2d 676 [3d Dept 1998]).

An appeal to the Commissioner pursuant to Education Law "310 is not the proper forum for litigating novel issues of constitutional law, particularly when they have not previously been subject to judicial review (Appeal of Carlson, et al., 37 Ed Dept Rep 351, Decision No. 13,877; Appeal of O'Shea, 32 id. 514, Decision No. 12,904; Appeal of DeGroff, 31 id. 332, Decision No. 12,657). I find that the issue of the statutory or constitutional sufficiency of the competent and substantial evidence standard as applied in student disciplinary hearings has not been addressed to New York state or federal courts, and that there is no controlling case law on point that questions the propriety of the use of this standard in student disciplinary proceedings, although there are a few conflicting decisions from other jurisdictions. As the Court of Appeals noted in Matter of Lee TT., supra, the "degree of proof appropriate to the circumstances is the kind of question that has been traditionally resolved by the courts" (87 NY2d at 712, citing Santosky v. Kramer, 455 U.S. 745[1982]). Accordingly, I must dismiss this claim and leave the issue to judicial determination.

In view of the above disposition, and the annulling of the superintendent's hearing, I need not address the remaining issues raised by petitioners.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's decision of October 7, 1998, as formally ratified on October 21, 1998, transferring petitioner student from HOPS to Christopher Columbus High School, be annulled and expunged from his record, together with all records of the suspension hearing held on February 6, 1998.

IT IS FURTHER ORDERED that respondent cease immediately its practice of issuing transfer orders as penalties in suspension hearings held pursuant to Education Law "3214.

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