Appeal of K.B., on behalf of her son S.B., from action of the Board of Education of the City School District of the City of New York regarding student suspension and transfer.

 

Decision No. 14,737

(June 18, 2002)

 

Michael Cardozo, Esq., Corporation Counsel of the City of New York, attorney for respondent, James C. Marchant, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York ("respondent") upholding a superintendent"s suspension and transfer of her son S.B. The appeal must be sustained.

In October 1999, S.B. was a sophomore at respondent"s Talent Unlimited High School in Manhattan. On October 15, 1999, his language arts teacher, Ms. Pelosi, sent him to the Dean"s office after he arrived late for her second period class. Ms. Pelosi later reported to Dean Lichtman that S.B. returned to her classroom at the beginning of third period, called her a vulgar name and told her, in coarse language, not to interfere with him. At Dean Lichtman"s direction, Ms. Pelosi prepared a statement describing her encounter with S.B.

Dean Lichtman apparently spoke with petitioner by telephone and indicated that her son might be suspended. Several days later she called the school and was told by Dean Prager not to send S.B. to school. In the meantime, Dean Lichtman sent paperwork to the superintendent seeking authorization to suspend S.B. Petitioner alleges that she sent S.B. back to school on October 25 because she had heard nothing further from the school about a suspension.

Dean Lichtman approached S.B. on October 25 and asked him to write down what had happened in his encounter with Ms. Pelosi. The Dean did not tell S.B. that Ms. Pelosi had accused him of making threats before S.B. wrote a statement, in which he acknowledged he was angry at Ms. Pelosi and quoted the foul language he had used. Dean Lichtman made two additions to the statement, which he marked with his initials, and wrote S.B."s name and the date at the top of the page. After he wrote the statement S.B. denied making threats.

S.B. was suspended pursuant to notice on October 26, 1999 for allegedly threatening Ms. Pelosi. Petitioner chose to have the student"s father instruct him at home while he was suspended, rather than sending him to an assigned outreach center. She alleges that school staff did not supply his assignments despite her requests.

A superintendent"s hearing was originally scheduled for November 1, 1999 but was adjourned on two occasions at petitioner"s request. Thereafter, S.B. withdrew from the New York City school system and attended school in California for a time. Petitioner advised respondent that no hearing was necessary, as S.B. no longer attended city schools.

Eventually, petitioner and S.B. returned to New York and a superintendent"s hearing was scheduled for September 21, 2000. At the hearing, Dean Lichtman requested S.B."s transfer from Talent Unlimited High School. Petitioner indicated that if S.B. were transferred she would prefer for him to attend another performing arts high school like the Professional Performing Arts School ("PPAS"). S.B. and Ms. Pelosi both testified at the hearing and S.B."s written statement was admitted into evidence. S.B. acknowledged using the language in his statement but denied making threats. Respondent arranged for S.B. to audition at PPAS on October 25, 2000, but he was not accepted. On or about October 31, 2000, petitioner was notified that S.B. was transferred to Jacqueline Kennedy Onassis High School.

The superintendent did not issue a full hearing decision until January 10, 2001. The superintendent concluded that the hearing evidence established that S.B. had threatened Ms. Pelosi. He noted that credible evidence also showed that school personnel told petitioner that S.B. should not attend school after the incident occurred. The superintendent directed school officials not to employ this practice in the future. The superintendent confirmed S.B."s transfer and noted that all references to the suspension would be expunged from his record upon graduation or departure from respondent"s school system if he received no further suspensions. The superintendent also stated that Talented Unlimited was to permit S.B. to take any examinations administered during his suspension.

Petitioner appealed the superintendent"s determination to the Chancellor, who upheld it in a decision dated February 26, 2001. The Chancellor concluded that the record demonstrated that S.B. made threats and posed a danger to the school community. He also acknowledged that the school and the superintendent committed various procedural errors, but found that these did not deny the student due process or provide a basis for overturning the suspension and transfer.

Petitioner appealed the Chancellor"s decision to respondent. In a decision dated June 20, 2001, respondent denied the appeal. Respondent concluded that the truth of the charge was contained in S.B."s statement, which it described as "verbal abuse laden with menace." Respondent went on to state:

"it makes little difference that the acknowledged procedural irregularities in this case occurred. None of those irregularities demonstrates any prejudice to Appellant or affected the appropriateness of the determination of the charge and resulting disposition. The starting and ending point for analysis is that Appellant, by his own admission, uttered words to a teacher that were naturally to be construed, and almost surely were meant, to be threats. On that basis, Appellant was properly suspended and transferred.

This appeal ensued.

Petitioner contends that respondent erred when it found S.B."s statements to be threatening. She also argues that she and S.B. were denied due process by numerous procedural errors including: the school"s instruction to keep S.B. home before he was suspended, Dean Lichtman"s failure to inform S.B. of the charges against him before taking his statement, the district"s provision to her of a version of the Chancellor"s regulations that was not yet in effect when the incident occurred, the school"s failure to provide her with relevant documents from S.B."s record before the hearing and the superintendent"s delay in issuing a written decision. She asks me to reverse the decision to suspend and transfer S.B., expunge the suspension and transfer from his records, provide him "educational assistance" to enable him to be placed in his proper grade, direct Talent Unlimited High School to permit him to take missed final examinations and to correct allegedly erroneous records in his file.

Respondent asserts that its actions were lawful and that its decision was supported by the evidence and thus was not arbitrary or capricious. Respondent also contends that the alleged procedural errors did not prejudice S.B. or deprive him of due process.

The superintendent found that school staff directed petitioner to keep S.B. home for several days before they provided her with formal notice of his suspension. This course of action did not comply with the law and regulations governing suspensions of five days or less. Prior to November 1, 2000, Education Law "3214(3)(b) provided that, in the case of a suspension by a principal not to exceed five days, the student and his parents "shall, on request, be given an opportunity for an informal conference with the principal at which the person in parental relation shall be authorized to ask questions of the complaining witnesses." Notice of the right to request an informal conference is required under 8 NYCRR "100.2(l)(4), which prior to November 14, 2000 read as follows:

(4) Parental notice of student suspensions. Where a student is suspended from attendance for a period of five days or less pursuant to section 3214(3) of the Education Law, school district officials shall immediately notify the parents or the persons in parental relation in writing that the student has been suspended from school. Written notice 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 suspension" (Emphasis added).

In this case, school officials failed to comply with the law and regulation. Instead, they directed petitioner to keep her son home from school without providing the required notice or opportunity for a conference with the school principal. Indeed, school staff also failed to follow the Chancellor"s regulations regarding principal"s suspensions, which require procedural steps that paralleled then existing state law and regulation. Accordingly, any references to a suspension during October 18-22, 1999 must be expunged from S.B."s records (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep ___, Decision No. 14,552; Appeal of E.R., 40 id. ___, Decision No. 14,565).

 

Petitioner alleges that respondent also made various procedural errors in the course of S.B."s later "suspension" and transfer by the superintendent. She contends that Dean Lichtman"s pre-suspension investigation did not comply with Chancellor"s Regulation A-441. That regulation requires the principal or a designee to obtain written statements from the victim and any witnesses, question the accused student and inform him of the misconduct of which he is accused, provide him with an opportunity to present his side of the story if feasible and give him an opportunity to prepare a signed written statement. Petitioner asserts that the Dean did not tell S.B. he was accused of making threats until after S.B. gave a written statement and that this deprived S.B. of the opportunity to address the charge in his statement. However, it has previously been recognized that, in the context of school administrative proceedings, charges need only be sufficiently specific to advise the student of the activities or incidents that gave rise to the proceedings (See, Bd. of Educ., Monticello Central School v. Commissioner of Education, 91 NY2d 133; Appeal of M.G., 41 Ed Dept Rep ___, Decision No. 14,614). Students are not entitled to the procedural protections of a criminal trial and the specificity required for criminal indictments is not warranted in school administrative proceedings. As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ., Monticello Central School District, supra).

Petitioner correctly notes that the superintendent did not comply with the timelines established in Chancellor"s Regulation A-441 for notifying petitioner of the hearing disposition. The regulation requires written notification of the disposition within two days of the hearing and a decision letter explaining the rationale for the determination within five days of the hearing. Here, petitioner was informed of the disposition by mailgram some 40 days after the hearing date, on or about October 31, 2000. Petitioner asserts that S.B. returned to school in November. The superintendent"s decision letter was not issued until January 10, 2001. Respondent asserts that the delay in issuing the disposition was caused by its efforts to accommodate S.B."s desire to audition at PPAS. However, respondent offers no explanation for the delay from October 31, 2000 to January 10, 2001. Instead, respondent simply contends that S.B. was not prejudiced by this delay. I disagree. As the Chancellor noted in his decision, certainty and stability that would support a child"s educational progress are undermined by this kind of procedural delay. I admonish respondent to ensure that regulatory timelines are met in the future (seeAppeal of Cuardrado, 40 Ed Dept Rep ___, Decision No. 14,529).

In its decision, respondent stated that petitioner had not challenged its authority to transfer her son as a result of a disciplinary proceeding. I have previously held that such a transfer imposes a disciplinary penalty that is not authorized by Education Law "3214 and is therefore invalid (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 212, Decision No. 14,464, judgment granted dismissing petition to review, January 18, 2001, Sup. Ct., Albany Co., (Keegan J.), n.o.r; aff"d ___ AD2d ___, 741 NYS2d 589 (3d Dept 2002)). The hearing procedures employed here do not comply with the requirements of "3214(5) regarding involuntary transfers. Accordingly, there is no basis for upholding the transfer of S.B. (Appeal of a Student Suspected of Having a Disability, supra).

In light of this determination, I need not address the parties" remaining contentions. While I must sustain this appeal on procedural grounds, I note that S.B. admitted speaking to his teacher in language that demonstrated both hostility and disrespect. Such language and behavior is grossly inappropriate and has no place in our schools.

 

THE APPEAL IS SUSTAINED.

 

IT IS ORDERED that respondent"s decision of June 20, 2001, which sustained S.B."s suspension and transfer from Talent Unlimited High School to Jacqueline Onassis High School, be annulled and expunged from his record, together with all records reflecting his suspension from October 18-22, 1999.

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