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Decision No. 16,046

Appeal of R.Y., on behalf of her daughter N.Y., from action of the Board of Education of the Brentwood Union Free School District regarding student discipline.

Decision No. 16,046

(March 31, 2010)

Ingerman Smith, L.L.P., attorneys for respondent, Edward H. McCarthy, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the suspension of her daughter, N.Y., by the Board of Education of the Brentwood Union Free School District (“respondent”).  The appeal must be sustained in part.

During the 2007-2008 school year, N.Y. was an eighth-grade student in respondent’s district.  On April 8, 2008, N.Y. was involved in a physical altercation with another student (“the other student”) in the school cafeteria.  An incident report signed by the school nurse and principal indicates that the assistant principal called petitioner at approximately 11:10 a.m. and that N.Y. did not remain in school that day.  Petitioner claims that at approximately 9:50 p.m. on April 9, 2008, she received a telephone call from the principal, who informed her that N.Y. had “a problem.”

By letter dated April 9, 2008, the principal notified petitioner that N.Y. had been charged with “insubordination and endangerment” for “attack[ing] another student in the cafeteria without provocation, causing her to receive services from the Health Office.”  The letter stated that, beginning on April 9, 2008, N.Y. would be suspended for five days pending a superintendent’s hearing and informed petitioner of her right to request an informal conference with the principal and to meet with complaining witnesses.  On April 11, 2008, petitioner requested a meeting to discuss N.Y.’s discipline prior to a superintendent’s hearing.

By letter dated April 11, 2008, petitioner was notified that a superintendent’s hearing would be held on April 16, 2008 and that she should make arrangements for any witnesses to be present.  At petitioner’s request, the hearing was rescheduled for April 18, 2008.  On April 17, 2008, petitioner requested the opportunity to question the other student prior to or at the hearing.  The principal responded that “no parent is allowed to question another child without their parents’ permission or in the presen[ce] of their parents.”

At the hearing, the hearing officer viewed a surveillance video of the altercation.  The district presented testimony from two cafeteria monitors and a teacher who witnessed the altercation, and petitioner’s son testified on N.Y.’s behalf.

The hearing officer found N.Y. guilty and recommended that she be suspended from school for 10 days.  The superintendent accepted the hearing officer’s finding of guilt and penalty recommendation.  By letter dated May 6, 2008, petitioner appealed the superintendent’s determination to respondent, which, at its May 20, 2008 meeting, upheld the superintendent’s decision.[1]  This appeal ensued.

Petitioner appeals both the short-term and long-term suspensions.  Petitioner argues, interalia, that respondent failed to provide timely written notice of the charges against N.Y. and an opportunity for an informal conference with the principal prior to the beginning of the five-day suspension.  Petitioner also alleges that N.Y.’s due process rights were violated by several aspects of the hearing, including that: (1) the hearing officer failed to provide notice of the procedures for presenting student witnesses, (2) the hearing officer found N.Y. guilty prior to giving petitioner an opportunity to present her full defense, and (3) the assistant principal improperly passed notes to a district witness during her testimony.  Petitioner also argues that the hearing officer’s decision was not supported by substantial evidence, and that she was not provided with a written transcript of the hearing or a copy of the surveillance video.  Petitioner further alleges that the other student, who is Hispanic, was not disciplined for her involvement in the incident, and argues that respondent’s “disparate” treatment of N.Y., an African-American student, was motivated by racial discrimination.  Petitioner seeks expungement of N.Y.’s record and reimbursement for her costs in obtaining a written transcript of the hearing.  Petitioner also requests an order directing that N.Y. attend either respondent’s high school or an alternative placement apart from the freshman 9th Grade Center.

Respondent contends, among other things, that both the short-term and long-term suspensions were properly imposed and that the hearing was properly conducted.  Respondent also argues that, based on the April 8 altercation and N.Y.’s prior disciplinary record, her presence in school posed a continuing danger to persons or property and it therefore provided petitioner with written notice as soon as practicable after the suspension.

Preliminarily, I find that because N.Y. has served the suspension and the 2008-2009 school year has ended, the appeal is moot except to the extent that petitioner seeks expungement of N.Y.’s records and reimbursement of costs (Appeal of L.O. and D.O., 47 Ed Dept Rep 194, Decision No. 15,666; Appeal of M.S., 44 id. 478, Decision No. 15,237; Appeal of a Student with a Disability, 44 id. 136, Decision No. 15,124).

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).

Petitioner contends that she did not receive written notice of N.Y.’s short-term suspension until April 11, 2008, two days after the suspension commenced on April 9.  To support this contention, petitioner submits a copy of the certified mail envelope in which the letter was sent, which was postmarked April 10, 2008.  Respondent alleges that petitioner received the notice prior to April 11 because petitioner emailed the principal regarding the suspension on April 11, 2008 at 12:27 a.m.  Respondent further maintains that, even if petitioner did receive the notice on April 11, 2008, its “alleged mailing” of the letter on April 10, 2008, one day after the commencement of the five-day suspension, was sufficient as the district deemed N.Y.’s presence in school to be a continuing danger to persons or property.  I disagree.  The incident at issue in this appeal occurred on April 8, 2008.  While the notice of the short-term suspension was dated April 9, 2008, the record indicates that respondent did not mail the notice until April 10, 2008.  Respondent provides no explanation for this delay in mailing and no evidence that such mailing constitutes notice as soon after the suspension as was reasonably practicable.  Moreover, the record indicates that respondent mailed the notice via certified mail, which is “no more expeditious than regular mail and, therefore, does not satisfy the regulation” (Appeal of a Student with a Disability, 40 Ed Dept Rep 47, Decision No. 14,418; seeAppeal of J.G., 39 id. 393, Decision No. 14,270; Appeal of Milano, 37 id. 472; Decision No. 13,908).  Accordingly, the five-day suspension must be annulled and expunged from N.Y.’s record.

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.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).

In this case, there is no dispute that N.Y. was involved in a physical altercation at school on April 8, 2008.  However, petitioner claims that the suspension was improper because N.Y. did not initiate the altercation and acted only in self defense.  Petitioner contends that N.Y. has been the victim of a pattern of bullying and sexual harassment by students and that N.Y.’s April 8, 2008 conduct was a response to such treatment.  Petitioner alleges that when the other student approached her, N.Y. “stood up to avoid being harmed.”  Petitioner explains that the other student then shoved N.Y., who acted to protect herself by “pull[ing] the other student off of herself by her hair.”  Petitioner notes that N.Y. was “badly scratched and injured” in the altercation and was treated by the school nurse.

Pursuant to Education Law §3214(3), a district may suspend students who are “insubordinate or disorderly or violent or disruptive, or whose conduct otherwise endangers the safety, morals, health or welfare of others.”  The record in this appeal contains a surveillance video of the April 8, 2008 altercation.  While I have reviewed the video, I cannot clearly determine which student started the physical altercation.  Although the underlying facts surrounding the start of the altercation are in dispute, the surveillance video and the testimony of the witnesses to the April 8, 2008 incident clearly establish that N.Y. was actively involved in the altercation and had to be physically separated from the student, whose hair she had grasped.  Moreover, the witnesses testified that N.Y. failed to comply with staff directives to stop fighting.  With respect to findings of fact in matters involving the credibility of witnesses, I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  Based on the record before me, I will not substitute my judgment for that of the hearing officer.

Petitioner alleges that N.Y. has been the victim of bullying and harassment and that respondent has failed to adequately address the situation.  While nothing herein should be construed as minimizing the gravity of such issues, I note that the record before me indicates that N.Y. has had some history of difficulty with this particular student, from which she has not walked away.  Rather, this situation culminated in N.Y.’s involvement in a serious physical altercation in a crowded cafeteria and her subsequent refusal to comply with the directives of district staff, who had to intervene to stop the fight.  Based on the record before me, therefore, I cannot conclude that respondent’s finding of “insubordination” and “endangerment” for N.Y.’s role in the April 8, 2008 altercation is arbitrary and capricious.

In cases of student discipline, 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 J.C., 46 Ed Dept Rep 562, Decision No. 15,596; Appeal of C.D. and P.D., 46 id. 459, Decision No. 15,563).  Given N.Y.’s involvement in a serious physical altercation and subsequent refusal to comply with the directives of district staff, I cannot conclude that a 10-day suspension is excessive.  Moreover, the record indicates that N.Y.’s disciplinary record contains at least 20 entries, including suspensions for fighting with other students and throwing a book at another student.  Based on the record in this case, I will not substitute my judgment for that of respondent with respect to N.Y.’s 10-day suspension.

I must also address petitioner’s allegation that respondent failed to discipline the other student involved in the altercation.  The fact that another student who was involved in an incident may have received a lesser penalty, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed upon a student, provided that, as here, the record establishes that the student engaged in the misconduct and the penalty imposed is appropriate (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451; seeAppeal of Robert D. and Barbara D., 38 id. 18, Decision No. 13,975).

Petitioner claims that respondent has discriminated against N.Y. on the basis of race.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has not provided an explanation of the legal basis for her discrimination claims, merely making conclusory allegations that because the other student was not disciplined and the assistant principal and monitor who witnessed the incident as well as the other student were all Hispanic, N.Y. has been discriminated against based on race.  Respondent contends that N.Y. initiated the altercation and petitioner offers no proof to support her theory that respondent’s decision to suspend N.Y. was motivated by race or was the result of a pattern of disparate treatment based on race.  Having failed to articulate a clear legal right to relief, petitioner has failed to meet her burden.  Moreover, while petitioner has not framed her discrimination claims in constitutional terms, to the extent that she intends to allege discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Seton Catholic Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481; Appeal of Johnson, 45 id. 446, Decision No. 15,377; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of Seton Catholic  Central High School, et al., 46

Ed Dept Rep 190, Decision No. 15,481).[2]

Petitioner also alleges that her ability to present N.Y.’s case on appeal was prejudiced by respondent’s failure to provide a written transcript of N.Y.’s disciplinary hearing.  Education Law §3214(3)(c)(1) states, in part:  “A record of the hearing shall be maintained, but no stenographic transcript shall be required and a tape recording shall be deemed a satisfactory record.”  Petitioner admits that respondent provided her with a satisfactory audio recording of the hearing.  Although the hearing transcript contains a statement from the hearing officer that petitioner would receive a written transcript of the hearing, respondent was not required to provide one.

Petitioner alleges that that N.Y.’s due process rights were violated by several aspects of the hearing.  First, petitioner contends that the assistant principal passed a note to one of respondent’s witnesses during her testimony.  The hearing record indicates that, in response to petitioner’s objection, the assistant principal denied such actions.  Petitioner now contends that the hearing officer’s overruling of her objection constitutes an abuse of discretion.  I disagree.  As noted above, the hearing officer is in the best position to determine matters concerning witness conduct and credibility.  I will not substitute my judgment for that of a hearing officer unless there is clear and convincing evidence that the determination of credibility is inconsistent with the facts (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).  Other than her conclusory assertions, petitioner has produced no evidence to indicate that the hearing officer erred in overruling her objection and I will not substitute my judgment for that of the hearing officer under such circumstances.

Petitioner also claims that respondent failed to instruct her as to presenting student witnesses and did not give her an opportunity to fully present her case.  The hearing transcript indicates that, after respondent concluded its case, the hearing officer informed petitioner that she could then present testimony or witnesses.  In response, petitioner called her son as a witness.  However, after the hearing officer made his determination of guilt, petitioner stated that she had not been given an opportunity to present N.Y.’s defense.  Petitioner then attempted to introduce several written statements and was informed by the hearing officer that she could not do so if the individuals were not present for cross-examination.  In the case of a student disciplinary hearing, “it is improper for the hearing officer to consider a witness’s written statement unless the witness is available for cross examination” (seeAppeal of N.H. and E.H., 47 Ed Dept Rep 467, Decision No. 15,756; Appeal of M.A., 47 id. 188, Decision No. 15,663).  Moreover, the record in this case indicates that petitioner was repeatedly notified of her right to present witness testimony and the need to have such witnesses physically present at the hearing.  For example, in the April 11, 2008 notice of the superintendent’s hearing, petitioner was advised to “make arrangements to have [any witnesses] present prior to the Hearing.”  Further, the hearing transcript indicates that petitioner was informed that she had a right to cross-examine the district’s witnesses and to present her own witnesses.  Based on the record before me, I find that petitioner was indeed informed of her right to present witness testimony and the need to have such witnesses physically present at the hearing.  Accordingly, I cannot find that respondent violated petitioner’s due process rights with respect to her ability to present her case at the hearing.

Finally, petitioner requests that I award her costs in preparing a written transcript of the audio recording of N.Y.’s disciplinary proceeding.  However, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

In light of this disposition, I need not consider petitioner’s remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s suspension of N.Y. from April 9, 2008 through April 15, 2008 be annulled and expunged from her record.

END OF FILE.

[1] Petitioner contends that she was never provided with written notice of respondent’s determination.  However, together with its verified answer, respondent has submitted a copy of a notice dated June 3, 2008 which was sent to petitioner via certified mail.  A copy of the certified mail receipt indicates that petitioner signed for and received the letter on or about June 9, 2008.

[2] I note that, in its memorandum of law, respondent states that, on July 7, 2008, petitioner served a notice of claim, which includes the claims of race discrimination raised by petitioner in the instant appeal.  By letter dated March 5, 2010, petitioner informed my Office of Counsel that no lawsuit has been commenced in this matter.