Appeal of P.D., on behalf of her son A.D., from action of Joel Klein, as Chancellor of the New York City Department of Education, regarding student discipline.

Decision No. 16,032

(March 17, 2010

The Legal Aid Society, Juvenile Rights Project, attorneys for petitioner, Karen Yazmajian, Esq., of counsel 

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Lesley Berson, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of Joel Klein, Chancellor of the New York City Department of Education, (“respondent”) to suspend her son, A.D.  The appeal must be sustained.

A.D. was a sixth grade student at respondent’s I.S. 381 during the 2007-2008 school year.  On December 11, 2007, petitioner informed the principal of I.S. 381 of her plans to take A.D. on a vacation out of the country and requested his assignments for the week prior to the winter break that ran from December 22, 2007 to January 1, 2008. 

On December 12, 2007, while driving near the school around 3:00 p.m., the principal of I.S. 381 observed A.D. standing in the street between two parked cars, punching another student, M.B., in the head.  The principal interviewed and took statements from M.B., A.D., and other students who witnessed the incident and telephoned petitioner on December 13, 2007.  On December 14, 2007, the dean of students at I.S. 381 contacted petitioner after he observed A.D. leave his seat during in-school detention and grab the breast of B.D., a female student.  The principal interviewed and took written statements from B.D., A.D. and the dean of students before telephoning and meeting with petitioner on December 14, 2007.  On December 17, 2007, petitioner and A.D. left the country on vacation and did not return until January 10, 2008. 

A notice dated December 18, 2007, informed petitioner that A.D. would be suspended on December 19, 2007 and that a superintendent’s hearing was scheduled for January 3, 2008 on charges related to the two incidents.  When petitioner did not appear on January 3, 2008, the hearing was re-scheduled for January 10, 2008 without consulting petitioner, whom the principal informed the hearing officer had left the country and may not have yet returned.  Petitioner did not appear at the hearing.  Following the hearing, the superintendent rendered a decision dated January 16, 2008 finding A.D. guilty of the charges and suspending him for an additional 45 days through March 14, 2008 with a review for early reinstatement on February 8, 2008.  A copy of the decision was mailed to petitioner.  The January 16, 2008 notice of the suspension informed petitioner that A.D. should report to respondent’s alternative learning center and that she may appeal to the Chancellor.  An appeal of the suspension was filed by petitioner’s representative on March 7, 2008 and denied by the Chancellor on June 25, 2008.  This appeal ensued.

Petitioner contends that respondent violated A.D.’s due process rights because the principal failed to inform the hearing officer that petitioner and her son were out of the country and could not be aware of the suspension or attend the hearing.  Petitioner also asserts that respondent’s decision appears to rely on information outside the suspension hearing record.  Petitioner further contends that she was not aware of respondent’s June 25, 2008 decision until it was emailed to her representative on September 15, 2008 because she moved twice between May 30, 2008 and July 15, 2008.  Petitioner requests that A.D.’s suspension be overturned and the record of the suspension expunged.

Respondent contends that the appeal should be dismissed as untimely.  Respondent denies it violated A.D.’s due process rights and asserts that the principal had notice only that petitioner would be taking A.D. on vacation during the winter break and so informed the hearing officer on January 3, 2008.  Respondent claims that the principal had no notice petitioner and A.D. might still be away on January 10, 2008, eight days after classes had resumed.  Respondent also contends that the Chancellor’s decision to uphold A.D.’s suspension was based on the evidence and testimony offered at the hearing. 

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).

Respondent states that the June 25, 2008 decision was mailed to petitioner at her address of record.  However, petitioner moved twice between May 30 and July 15, 2008, and alleges that she never received the June 25, 2008 decision mailed to her former address.  In her reply, petitioner alleges that she informed her son’s school of her May 30, 2008 move but respondent alleges that its Office of Legal Services never received that information, and therefore, mailed the decision to petitioner’s former address.  Petitioner explained that she did not inform the school of her July 15, 2008 move because school was not in session.  Petitioner’s representative received the decision on September 15, 2008 by email from respondent’s counsel and forwarded it to petitioner.  Petitioner commenced this appeal on October 15, 2008. 

These facts suggest a strong likelihood that petitioner did not receive actual notice of the decision until after it was forwarded to her by her representative.  Petitioner verifies in her petition that she did not receive the decision until September 15, 2008.  Respondent presents no evidence to the contrary.  The petition was served within 30 days thereafter.  Under these circumstances, I find the appeal to be timely.

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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).  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 J.R-B., 46 Ed Dept Rep 509, Decision No. 15,578; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550).

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 a Student with a Disability, 45 Ed Dept Rep 531, Decision No. 15,406; Appeals of E.R., 45 id. 487, Decision No. 15,389).

Education Law §3214(3)(c)(1) provides that no pupil may be suspended in excess of five school days unless the pupil and the person in parental relation are given an opportunity for a fair hearing, upon reasonable notice, at which the pupil has the right to representation by counsel, with the right to question witnesses against the pupil and to present witnesses and other evidence on the pupil’s behalf (Appeal of V.C., 45 id. 571, Decision No. 15,419).

In this case, the only written notice provided to petitioner, dated December 18, 2007, combined both the short-term suspension and hearing.  It was mailed to petitioner while she and her son were out of the country.  The record reflects that the principal was aware of petitioner’s impending travel on December 11, 2007 and informed the hearing officer on January 3, 2008 that petitioner may not have returned by that date.  Petitioner’s affidavit states that she did not learn of the suspension until her return on January 10, 2008, after the five-day suspension was imposed and the hearing was held.  Respondent produced no evidence that petitioner received any written notice prior to January 10, 2008 or that any attempt was made to confirm petitioner’s return prior to proceeding with the hearing.  In choosing to mail the notice while petitioner was out of the country, the district failed to comply with the Education Law and Commissioner’s regulations in that petitioner could not have received it prior to the short-term suspension or the hearing on the long-term suspension.  Accordingly, because of the lack of timely notice, petitioner was effectively denied the opportunity to effectively participate in her son’s hearing in violation of Education Law §3214.  Therefore, the suspension must be annulled and expunged from A.D.’s record.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent annul and expunge any reference to the suspension from A.D.’s disciplinary record.

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