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Decision No. 14,750

Appeal of G.M., on behalf of her son H.V., from action of the Board of Education of the City School District of the City of New York regarding student discipline.

 

Decision No. 14,750

(June 26, 2002)

 

Beverly Schlesinger, Esq., attorney for petitioner, Jocelyn Smith, Esq., of counsel

 

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Blanche Greenfield, Esq., of counsel

 

MILLS, Commissioner.--Petitioner appeals a decision of the Board of Education of the City School District of the City of New York ("respondent") to suspend her son, H.V., from Washington Irving High School. The appeal must be sustained in part.

On March 2, 2001, two female students at Washington Irving High School, J.J. and M.R., filed complaints with the school, alleging that a fellow student, H.V., had inappropriately touched and harassed them. On her complaint form, J.J. indicated that H.V. had touched her breast and kissed her on the mouth, and that on March 1, 2001, he verbally abused her and her cousin, M.R., at a train station. On her complaint form, M.R. indicated that on March 1, 2001, while in the train station, H.V. unzipped M.R."s coat. The complaint further alleged that while on the train, H.V. threw papers at J.J. and M.R. and that he was verbally abusive towards them.

The girls complained to school officials that H.V. continued to harass them following the March 1 incidents, and on March 8, 2001, the police were summoned to the school to investigate the girls" allegations. Following that investigation, H.V. was arrested on March 8 on the charge of sexual abuse in the third degree. The police complaint form identifies J.J. as the victim and M.R. as the witness, and relates only to an incident alleged to have occurred on school grounds on March 1, 2001. Specifically, the complaint form notes that J.J. alleged that H.V. "kissed her on the lips and grabbed her breast."

By letter dated March 15, 2001, petitioner was informed that H.V. had been suspended from school as of that date. The letter stated that H.V."s suspension was based on the following charges: "(1) on 3/1/01, at approximately 2:45 p.m., near Washington Irving High School, [H.V.] (student) inappropriately touched [J.J.] (student). (2) [H.V.] inappropriately touched [M.R.] (student)," and that "this behavior constitutes a danger to the health, safety, welfare and morals of [H.V.] and others at Washington Irving High School." H.V. was ordered to attend an offsite educational center during the term of the suspension.

A superintendent"s suspension hearing originally scheduled for March 21 was adjourned at petitioner"s request so that she could seek legal counsel. The rescheduled hearing was held before a hearing officer on April 6, 2001. H.V. was represented by counsel and was afforded the opportunity to call and cross-examine witnesses. Testifying for the school at the hearing were J.J., M.R., the school social worker who had taken the girls" statements on March 2, 2001, and the school"s dean who had investigated the incidents reported by the girls. Testifying on behalf of H.V. were two of H.V."s fellow students, both of whom are friends of H.V.

By mailgram dated April 18, 2001, petitioner was advised that H.V."s suspension had been sustained by the superintendent, and that his suspension from Washington Irving High School had been extended for one year, effective April 17, 2001 (note: this date should have read "April 7, 2001," the actual effective date of the suspension) through April 6, 2002. The notice ordered petitioner and H.V. to report to the Office of Extended Suspension, where an appropriate alternative instructional site would be selected for H.V. The notice further advised that H.V. was entitled to petition the superintendent for reinstatement to his regular high school placement after July 6, 2001.

By letter brief dated May 14, 2001, petitioner"s counsel wrote to the New York City Schools Chancellor, requesting an expedited appeal of the superintendent"s decision. This letter brief alleged that the penalty imposed was excessive; that the school failed to establish that the first charge occurred at the time, place or date alleged; that the school failed to meet its burden of proof regarding the second charge; and that the school"s investigation did not meet the standards required by the Chancellor"s regulations. Accordingly, petitioner"s counsel sought to have the decision overturned; the charges dismissed and expunged; and to permit H.V. to return to his high school.

By letter dated May 18, 2001, petitioner"s counsel again wrote to the Chancellor. In her letter, she cited alleged legal and factual problems with the superintendent"s decision. She further alleged that H.V. would suffer irreparable harm if he were not permitted to return to school. Accordingly, petitioner"s counsel requested that H.V. be allowed to return to his high school pending a decision on her initial appeal.

On May 24, 2001, the hearing officer issued her written decision. Her findings of fact and recommendation were approved by the superintendent. The hearing officer found that "[t]he weight of the credible evidence presented at the hearing establishes that on or about March 1, 2001, while at Washington Irving High School, [H.V.] inappropriately touched [J.J.], and on March 1, 2001, near Washington Irving High School, while on the way home from school, [H.V.] inappropriately touched [M.R.]." As indicated in the mailgram dated April 18, the superintendent ordered H.V."s suspension for one year. The decision noted that the penalty was imposed "after full consideration of the seriousness of [H.V."s] misconduct, and [his] school record." That school record indicated that H.V. had received only 7 of the 40 credits he needed for graduation since his admission to school in 1998 and that he had had 47 absences during the previous semester.

By letter brief dated June 4, 2001, petitioner"s counsel wrote to the Chancellor, seeking leave to amend her appeal to respond to several issues raised in the hearing officer"s decision.

By letter dated June 15, 2001, the superintendent issued a modified decision. The findings of this modified decision were identical in every respect to the hearing officer"s written decision of May 24, with the exception of the penalty imposed. The modified decision called for H.V."s suspension to be continued for 30 school days, effective April 9, 2001 through June 1, 2001. H.V. was ordered to report back to Washington Irving High School on June 4, 2001. Like the original decision, the modified decision ordered that "all notation of the suspension will be expunged...upon [H.V."s] graduation or departure from the New York City public school system, provided there are no additional incidents of misbehavior resulting in a Principal"s or Superintendent"s suspension, which is ultimately sustained." While the modified decision is dated June 15, 2001, it appears from the record that it was actually modified on June 1; that petitioner was informed of that modified decision on or about June 1; and that H.V. returned to Washington Irving High School on June 4, 2001.

By order dated July 23, 2001, the Chancellor denied H.V."s appeal and sustained his thirty-day suspension. The Chancellor found that the school had proved by substantial and competent evidence that H.V. had inappropriately touched M.R.; that the school had conducted a proper investigation; that the superintendent"s decision was proper; and that the penalty was not excessive. Notably, however, the Chancellor limited his decision to H.V."s alleged conduct against M.R., stating: "Because I am sustaining the suspension based on the charge that [H.V.] inappropriately touched M.R., I need not address [H.V."s] grounds for appeal relating to the charge of inappropriately touching J.J."

By letter brief dated August 6, 2001, H.V."s counsel wrote to respondent, appealing the Chancellor"s decision and renewing her appeal "on those issues that the Chancellor did not reach." On October 17, 2001 respondent issued its decision denying H.V."s appeal, noting that "[i]t is clear from the record that [H.V.] unzipped [M.R."s] coat and inappropriately touched her, and cursed and threw papers at her. Such behavior by [H.V.] is inappropriate and not acceptable. A thirty-day suspension as a penalty for [H.V."s] behavior is not excessive, and the decision of the Chancellor was not arbitrary, capricious or contrary to sound educational policy." This appeal ensued.

Petitioner appeals respondent"s decision to sustain H.V."s suspension based on the charge regarding M.R. and on its refusal to examine the charge concerning J.J. Specifically, petitioner contends that respondent acted arbitrarily and capriciously, abused its discretion and erred in several respects regarding its review of the weight and credibility of the witnesses" testimony at the superintendent"s hearing; that it failed to give proper weight to factual inconsistencies in the statements and testimony of witnesses who testified against H.V.; and that it acted arbitrarily and capriciously in its decision to ignore the school"s failure to conduct a proper investigation.

Respondent asserts that the petition fails to state a cause of action upon which relief may be granted; that its actions were in all respects legal, proper, reasonable, and in conformity with all applicable laws, rules, regulations and guidelines; that its decision to uphold H.V."s suspension was lawful and supported by substantial and competent evidence in the record; that its decision not to consider the first charge against H.V., of inappropriately touching J.J., on the ground that it was moot, was in all respects legal, proper, reasonable, and within its discretion; that the length of H.V."s suspension was neither excessive nor severe; that it acted within its power in assessing the credibility and veracity of witnesses; and, finally, that school officials conducted a proper and adequate investigation of the charges against H.V.

Initially, I must address a procedural issue. In petitioner"s reply, she asserts that respondent failed to timely serve petitioner with its answer. With the consent of my Office of Counsel, the parties stipulated that respondent"s answer was to be "served on petitioner by fax and personal service by 1:00 p.m. on December 24, 2001." Counsel for the parties disagree as to the events that transpired on December 24. What is clear, however, is that counsel for petitioner agreed to pick up the answer at the office of respondent"s counsel, and that she arrived at that office shortly after 1:00 p.m. The parties disagree as to whether respondent was to transmit the answer via facsimile to petitioner"s counsel. Respondent"s counsel asserts that petitioner"s counsel had asked her not to fax the answer, since no one would be in the office to receive it (because it was Christmas Eve); petitioner"s counsel denies that she made such a request. Regardless, it is clear that respondent"s counsel personally served petitioner"s counsel with the answer shortly after 1:00 p.m., and that the answer was faxed to petitioner"s counsel no later than 1:36 p.m. on that day. Because any delay in service of the answer was deminimis, I have considered respondent"s answer in this appeal.

Education Law "3214(3)(a) authorizes a board of education to suspend "a pupil who is insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others." The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Bd. of Educ., City of New York v. Mills, ___ AD 2d ___, 741 N.Y.S. 2d 589 [3d Dep"t, April 18, 2002]; Appeal of K.M., supra). A hearing officer may draw reasonable inferences if the record supports the inference (Bd. of Educ. of Monticello Central School District v. Commissioner of Education, et al., 91 NY2d 133; Appeal of K.M., supra). It is well settled that the Commissioner will not substitute his judgment on witness credibility unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of K.M., supra; Appeal of Oliver, 39 Ed Dept Rep 817, Decision No. 14,392). In addition, hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (Appeal of a Student Suspected of Having a Disability, 39 Ed Dept Rep 476 Decision No. 14,287; Appeal of Hamet, 36 id. 174, Decision No. 13,692).

In the hearing notice sent to petitioner, the second charge preferred against H.V. was that he engaged in conduct which constituted a danger to the safety, welfare and morals of H.V. and others when he inappropriately touched M.R. Based on the totality of the record, I find that the hearing officer could have reasonably concluded that H.V. unzipped M.R."s coat, inappropriately touched her, cursed at her and threw papers at her. Accordingly, I find that respondent's determination to sustain H.V."s suspension is supported by competent and substantial evidence.

Petitioner asserts that because the charges relating to J.J. and M.R. are so closely linked, and because the penalty originally imposed by the superintendent (i.e., one year suspension) was based on H.V."s alleged inappropriate touching of both girls, each charge should be evaluated separately. Respondent found, however, that "[t]he issues raised pertaining to the charges concerning [J.J.] are moot since the Chancellor sustained the suspension based on the charges concerning [M.R.] and since the charge against [H.V.] could have rested in the first instance solely upon his alleged conduct toward [M.R.]." I concur with respondent and find no basis to conclude that it erred in declining to address the charge relating to J.J. However, because the penalty imposed on H.V. was based solely on his conduct toward M.R., respondent must ensure that H.V."s school records do not include any references relating to the charge concerning his alleged conduct toward J.J.

In his decision, the Chancellor wrote: "Based on further review [i.e., the modified decision]...the Superintendent concluded that [H.V.] had engaged in sexual harassment, which is infraction 15(a) of the Discipline Code. The disposition was therefore reduced to a continued suspension for a period of 30 days, which is the maximum penalty for violating 15(a), and which has already been served...I do not find that a 30 day suspension for engaging in sexual harassment is excessive." The Chancellor"s decision was sustained by respondent. Petitioner"s son was suspended from school at the request of the principal on March 15, 2001 and, following a superintendent"s hearing, was not permitted to return until June 4, 2001, a period in excess of 30 days. Accordingly, respondent must expunge from H.V."s school records any reference to a superintendent"s suspension greater than 30 days.

 

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that respondent ensure that H.V."s school records do not include any references relating to the charge concerning his alleged conduct toward J.J. and that it expunge any reference to a superintendent"s suspension greater than 30 days.

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