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Decision No. 15,767

Appeal of R.A. from action of the Board of Education of the Bay Shore Union Free School District regarding student discipline.

Decision No. 15,767

(June 19, 2008)

Paul L. Dashefsky, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondent, Michael G. McAlvin, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) affirming his suspension.  The appeal must be sustained in part.
Petitioner is 18 years old and a native of Honduras who has attended respondent’s schools since he arrived in the United States in July 2006.[1]

During the 2007-2008 school year, petitioner attended 11th grade in respondent’s district.  He is classified as limited English proficient (“LEP”) and has attended English as a Second Language (“ESL”) classes.  Petitioner currently lives with his mother, whose native language is Spanish, and his step-father, whose native language is English.

The record indicates that on November 13, 2007, at approximately 6:00 p.m., petitioner and three Hispanic classmates were involved in an altercation at a shopping mall with a group of African-American students.  The parties dispute the cause of the altercation.  Petitioner claims that the group of African-American students “triggered the physical altercation when they directed racist, anti-Hispanic, bigoted remarks toward the petitioner and his Hispanic classmates,” while respondent contends that petitioner instigated the fight by asking the African-American students whether they were members of the gang the “Bloods.”

On November 14, 2007, respondent’s head of security, Corey Swinson (“Swinson”), learned of the November 13, 2007 altercation and interviewed petitioner.  Petitioner claims that, during this interview, Swinson accused him of being a member of the gang “MS13” based on the fact that he was wearing a light blue shirt and carrying a light blue bandana in his pocket that day.  Petitioner claims that he admitted to Swinson that he was involved in the November 13, 2007 altercation at the shopping mall, but denied being a member of a gang.

By letter dated November 15, 2007, the high school principal informed petitioner’s mother that petitioner would be suspended “Out of School” for five days - November 15, 16, 19, 20 and 21, 2007.  The letter explained that the suspension was “due to [petitioner’s] violation of the following Bay Shore Schools Code of Conduct for Students provision(s):  Prohibited group affiliation and inciting violence.”  The letter also informed petitioner’s mother that she had a right to an informal conference at which she could question complaining witnesses and that a superintendent’s hearing would be held.  The record indicates that this letter was written in English and was hand-delivered to petitioner’s home at approximately 5:00 p.m. on November 15, 2007.

By letter dated November 19, 2007, respondent’s superintendent notified petitioner that the superintendent’s hearing would be held on November 26, 2007.

At the hearing, Swinson testified that he had received training from local law enforcement on “gang identifiers such as clothing, language, handsigns, and grouping.”  Swinson stated that on November 14, 2007, one of respondent’s ESL teachers advised him that “a number of her male students were wearing blue and white shirts ... [and] seemed to be a bit agitated.”  On that day, Swinson was also informed by a student about the November 13, 2007 altercation at the shopping mall.

Swinson testified that, based on this information, he interviewed petitioner on November 14, 2007 and that petitioner admitted to being involved in the November 13, 2007 altercation.  Swinson also stated that petitioner admitted to “confront[ing] the [African-American students] and ask[ing] them were they Bloods, which is a known street gang.”  According to Swinson, this alleged admission indicated gang membership:

[N]o reasonable person that’s not in a gang would ask somebody who they suspected to be Bloods, are you Bloods .... I can’t see a reasonable person approaching somebody that they think is in a gang unless they were in a gang themselves and unless they were the number one primary enemy of ... that other gang.

According to Swinson, petitioner also admitted that on the evening of November 13, 2007 he was wearing blue and white, which Swinson described as “gang colors, more specifically MS13 ....”  Swinson stated that the next day, November 14, 2007, petitioner again wore blue and white and “had a blue lanyard or a key chain with a blue lanyard.”  Swinson explained that when he asked petitioner to surrender the contents of his pockets, petitioner also produced a blue bandana, “or in the gang terminology better known as a flag.”

Swinson testified that in October 2007, there was “some concern [among respondent’s] ESL teachers about some of the young [Hispanic] men in [their] classes.”  In response to these concerns, he and two of respondent’s deans of students met with several Hispanic students, including petitioner.  With respect to the October 2007 meeting, Swinson stated:

We let [the students] know that their dress code ... the grouping, the fact that they were all together, they were displaying certain behavior in the classroom, all of that was brought to their attention.  We never said “gang,” but we also let them know it could be misconstrued as that.

Swinson noted, however, that he “never directed [the students] not to wear the color blue” in school.

Petitioner testified at the hearing and denied being a member of any gang.  While he admitted to his involvement in the November 13, 2007 altercation at the shopping mall, he denied asking the other students if they were “Bloods” and stated that he was not wearing a blue shirt that night.  Indeed, petitioner’s attorney produced a maroon shirt, which petitioner testified to wearing on the night of November 13, 2007.  Petitioner admitted to wearing a blue shirt and carrying a blue bandana in his pocket on November 14, 2007, but stated that he only took the bandana out of his pocket at Swinson’s request.  Petitioner also testified that he does not carry any weapons and that, while he has a tattoo of his initials, he does not have any other tattoos that indicate gang membership.

Two of petitioner’s teachers also testified at the hearing.  One of the teachers stated that petitioner “did very well with me.  He was very intelligent, very sharp, very charismatic ....  He has a level of arrogance, but very ... smart, wanting to learn English.”  The other teacher testified that petitioner “is an excellent student” and that he has made “amazing progress.”  Both teachers stated that they had never seen petitioner exhibit violent tendencies.

Based on the testimony introduced at the hearing, the hearing officer found that respondent “met its burden of providing substantial evidence” to support the charges of “prohibited group affiliation” and “inciting violence.”  During the penalty phase of the hearing, the assistant principal testified that petitioner’s disciplinary record contained “a couple of suspensions and detentions,” including “a couple of Saturday detentions for missing class, cutting classes ... creating a disturbance, lying and [being] disrespectful.”  However, the assistant principal also noted that petitioner’s record contained no instances of violent behavior or fighting in school and that petitioner did not pose a danger to anyone in school.

The hearing officer recommended that petitioner be suspended from school until November 28, 2008.  By letter dated December 3, 2007, the superintendent notified petitioner’s mother that she accepted the hearing officer’s findings and penalty recommendation.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 17, 2007.

Petitioner’s verified reply, which was received by my Office of Counsel on January 4, 2008, indicated that he appealed the superintendent’s determination to respondent on December 14, 2007 and asked that I reconsider his request for interim relief.  Such relief was denied on January 14, 2008.[2]

Petitioner appeals both the short-term and long-term suspensions imposed by respondent.  Petitioner argues, interalia, that respondent failed to provide him and his mother with timely and sufficient notice of the charges against him in a language they could understand and that he was not provided with an opportunity for an informal conference with the principal.  Petitioner also argues that the hearing officer’s decision was not supported by substantial evidence.  Petitioner seeks expungement of “all discipline” imposed against him and “additional instruction” to “compensate and make-up for [his] loss of instruction” due to his suspension.

Respondent argues, among other things, that the hearing officer’s decision was based on competent and substantial evidence.  Respondent contends that petitioner and his mother received timely and sufficient notice of petitioner’s suspension and their right to an informal conference.  Respondent also maintains that such informal conference was held on November 15, 2007.

I must first address a procedural issue.  In this case, petitioner requested permission to submit a “reply memorandum of law.”  Respondent contends that petitioner’s reply memorandum of law fails to comply with §276.4 of the Commissioner’s regulations.  Under that provision, reply memoranda of law may be accepted only with the prior approval of the Commissioner (Appeal of Gorsky, 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Dunshee, 44 id. 414, Decision No. 15,216; Appeal of Schadtle, 40 id. 60, Decision No. 14,421).  Petitioner urges that I accept his reply memorandum of law on the grounds that such document does not raise any new arguments and “simply cites references in the [hearing] transcript regarding critical factual issues .... It was impossible to include these references in the petitioner’s initial memorandum of law because the respondent did not provide the petitioner with a copy of the written transcript until after the petitioner’s initial memorandum of law was ... filed.”  Under these circumstances, and in the absence of any demonstrated prejudice to respondent, I have accepted petitioner’s reply memorandum of law.

In the case of a suspension of five days or less, the suspending authority must provide the pupil with notice of the charged misconduct.  Written notice must be provided to the pupil and the person in parental relation to the pupil to advise them of the reason for the proposed suspension and their right to request an immediate informal conference with the principal at which the pupil or person in parental relation may present the pupil’s version of events and question complaining witnesses (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]; Appeal of R.F., 43 Ed Dept Rep 206, Decision No. 14,972). The notice and opportunity for an informal conference must take place prior to the suspension of the pupil, unless the pupil's presence in the school poses a continuing danger to persons or property or an ongoing threat of disruption to the academic process, in which case the notice and opportunity for an informal conference must take place as soon after the suspension as is reasonably practicable (Education Law §3214[3][b][1], 8 NYCRR §100.2[l][4]).

The purpose of the written notice requirement is to ensure that parents of, or persons in parental relation to, a student suspended for five days or less are made aware of the statutory right provided in Education Law §3214(3)(b)(1) to question the complaining witnesses in the presence of the principal who imposed the suspension in the first instance, and who has authority to terminate or reduce the suspension.  This procedure affords the principal the opportunity to decide whether his or her original decision to suspend was correct or should be modified (Appeal of R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

The written notice of a short-term suspension 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 decision to propose suspension  (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972).

Petitioner claims that he and his mother were not provided with written notice prior to the beginning of his suspension on November 15, 2007.  Respondent submits a sworn statement from its assistant principal, which states that written notice was hand-delivered to petitioner’s mother at approximately 5:00 p.m. on November 15, 2007.  However, such delivery occurred after the suspension was already in effect.  Although respondent claims that, on November 14, 2007, one of its deans left a telephone message in Spanish at petitioner’s home, such communication is not a substitute for proper written notice.  Moreover, respondent does not assert or establish that petitioner posed a continuing danger or threat of disruption thereby justifying delivery of the notice after suspension.  Accordingly, the five-day suspension must be annulled and expunged from petitioner’s record (seeAppeal of C.C. and R.C., 47 Ed Dept Rep 295, Decision No. 15,701; Appeal of R.N.T. and M.T., 47 id. 298, Decision No. 15,702; Appeal of V.R. and C.R., 43 id. 99, Decision No. 14,934).

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 L.T., 44 Ed Dept Rep 89, Decision No. 15,107).  Respondent’s code of conduct (“code”) defines “prohibited group affiliation” as “[a]ny activity, affiliation and/or communication in connection with a non-school sanctioned club/group, including fraternal organizations or gangs.”  The code defines “inciting violence” as “knowing about and not reporting an actual or potentially violent act; encouraging someone or planning to participate in a violent, unsafe, or illegal act.”

On the record before me, it is undisputed that petitioner was involved in an altercation with other students at a shopping mall on the evening of November 13, 2007.  It is also undisputed that, on November 14, 2007, petitioner wore a blue shirt to school, carried a blue lanyard or keychain and had a blue bandana concealed in his pocket.  Respondent claims that, taken together, these facts constitute substantial evidence that petitioner engaged in “prohibited group affiliation” and “inciting violence” in violation of its code.  To support its claim, respondent relies on the testimony of Swinson that petitioner’s dress and conduct constitute indicia of gang membership:  “[B]ased on my investigation from ... November 14th – based on the attire, based on the [bandana] that [petitioner] had in his pocket, it would be safe to say that he is involved with MS13.”

Swinson also stated that petitioner admitted instigating the November 13, 2007 incident at the mall by asking the African-American students if they were “Bloods.”  According to Swinson, “no reasonable person that’s not in a gang would ask somebody who they suspected to be Bloods, are you Bloods ....”  However, I find that Swinson’s inference is not supported by the record.  Petitioner testified on his own behalf and denied starting the fight.  He also stated that he is not a member of a gang.  Other than the conclusory testimony of Swinson, which was uncorroborated by any other witnesses, respondent produced no evidence to support the charges against petitioner.  As a result, I find that the proof adduced at petitioner’s disciplinary hearing was insufficient to sustain the charges of “prohibited group affiliation” and “inciting violence.”

I also note that, even if the record contained competent and substantial evidence that petitioner violated respondent’s code, in cases of student suspension, 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 Suspected of a Disability, 44 Ed Dept Rep 158, Decision No. 15,131; Appeals of J.J., 44 id. 113, Decision No. 15,115; Appeal of D.C., 43 id. 217, Decision No. 14,976).  In this case, two of petitioner’s teachers and an assistant principal testified that petitioner was a good student with no history of violent conduct at school.  Moreover, petitioner’s disciplinary record indicates that petitioner has never before been charged with “prohibited group affiliation” and/or “inciting violence.”  According to respondent’s own code, for each charge, the minimum penalty for a first offense is two days of in-school suspension; for a second offense, two days of out-of-school suspension; for any subsequent offense, five or more days of out-of-school suspension.  The range of minimum penalties set forth in respondent’s code strongly suggests that, even if the record contained enough evidence to support the charges against petitioner, a suspension until November 28, 2008 for a first offense would be excessive. 

Finally, petitioner seeks “additional instruction” to “compensate and make-up for [his] loss of instruction” due to his suspension.  Alternative instruction must be substantially equivalent to that received by the student prior to the suspension (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813; Appeal of Watts, 23 id. 459, Decision No. 11,282), and equivalency will be determined on a case-by-case basis (Appeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064; Appeal of Camille S., 39 id. 574, Decision No. 14,316).  Previous Commissioner’s decisions have found that two hours of alternative instruction may fulfill a district’s obligation under the Education Law (Appeal of V.E., 43 Ed Dept Rep 244, Decision No. 14,985; Appeal of A.L., Jr., 42 id. 368, Decision No. 14,883; Appeal of Camille S., 39 id. 574, Decision No. 14,316).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  The record indicates that, during his five-day suspension, petitioner “received regular coursework from his teachers” in respondent’s “in-school suspension room.”  Further, in her December 3, 2007 letter accepting the hearing officer’s findings, the superintendent recommended that home instruction be provided to petitioner “at the rate of two (2) hours per tutorable subject per week.”  Other than his own assertions, petitioner has failed to provide any proof to establish that he was not provided with adequate alternative education.  I also note that, generally, compensatory education services are available only to students classified as having a disability and petitioner submits no evidence that he has been so classified (Appeal of V.C., 45 Ed Dept Rep 571, Decision No. 15,419).  Therefore, I decline to grant this particular request for relief.

While petitioner has failed to establish any entitlement to compensatory education, by virtue of this decision, petitioner may be entitled to a summer school program offered by respondent.  I encourage petitioner and respondent to consider any such opportunities to the extent they may be available and/or appropriate.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of R.A. from November 15, 2007 through November 28, 2008 be annulled and expunged from his record.

IT IS FURTHER ORDERED that respondent readmit R.A. to the schools of the district.
END OF FILE


[1]Petitioner became a U.S. citizen in November 2007.

[2]In opposition to petitioner’s request for reconsideration of interim relief, respondent’s attorney submitted an affidavit dated January 10, 2008 in which he stated: “[u]pon information and belief, [respondent] considered and heard Petitioner’s December 14, 2007 appeal ... on January 9, 2008.  The Board has decided to uphold the suspension.”  However, evidence that respondent had in fact made a final determination was not introduced on the record until January 22, 2008, when my Office of Counsel received a letter from petitioner’s attorney stating that, on January 17, 2008, petitioner received a letter from respondent, dated January 11, 2008, denying his appeal.