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Decision No. 16,131

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

Decision No. 16,131

(August 13, 2010)

Paul L. Dashefsky, Esq., attorney for petitioner

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

STEINER, Commissioner.--On or about December 7, 2007, petitioner commenced an appeal pursuant to Education Law §310 (“§310 appeal”) challenging the determination of the Board of Education of the Bay Shore Union Free School District (“respondent”) to suspend him from school until November 28, 2008.[1]  On June 19, 2008, the Commissioner sustained petitioner’s appeal in part (Appeal of R.A., 47 Ed Dept Rep 504, Decision No. 15,767 [“R.A. I”]).[2]

Pursuant to Article 78 of the Civil Practice Law and Rules, respondent appealed this ruling to Supreme Court, Albany County.  In a decision dated January 9, 2009, the court reinstated the determination of the superintendent which upheld the disciplinary charges and remanded the matter to the Commissioner to review the penalty imposed.  By decision dated June 26, 2009, the Commissioner determined that the seven-month suspension served by petitioner was sufficient to impress upon him the seriousness of his conduct and that any further suspension of petitioner was unwarranted (Appeal of R.A., 48 Ed Dept Rep 520, Decision No. 15,935 [“R.A. II”]).[3]

On June 26, 2009, the court granted petitioner’s motion for reconsideration with respect to the scope of the court’s January 9, 2009 remand order, noting that a remand “should include all issues which were revived by the vacatur of the Commissioner’s [June 19, 2008] determination” and remanding the matter to the Commissioner for further proceedings consistent with its judgment.[4]  Accordingly, I will address the remaining claims raised by petitioner in R.A. I as directed by the court.

I must first address two procedural issues.  By letter dated May 19, 2009 and in his memorandum of law in this remand proceeding, petitioner urges that I consider additional evidence obtained in April 2009 through the superintendent’s deposition in petitioner’s federal action.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  Petitioner argues that this new evidence supports a finding that the superintendent’s decision to accept the hearing officer’s recommendation of guilt was based “solely on her ex parte discussion” with respondent’s head of security, Corey Swinson (“Swinson”).  Specifically, petitioner alleges that the superintendent’s conduct rendered his disciplinary hearing merely “cosmetic” and violated his due process rights by effectively denying his right to a hearing.

In R.A. I, petitioner made no allegations that the superintendent acted improperly nor did he seek specific relief against her.  Accordingly, I will not accept petitioner’s request to submit new evidence, in which he attempts to raise new claims of improper conduct against the superintendent for which notice has not been provided.

With respect to his short-term suspension, petitioner contends that the November 15, 2007 notice was inadequate and that he was not provided with an opportunity for an informal conference with the principal.  In R.A. I, I ordered that petitioner’s five-day suspension be annulled and expunged from his record based on respondent’s failure to provide proper written notice.  Because the court dismissed respondent’s appeal on this issue and neither party perfected an appeal of the court’s decision, my prior decision and order annulling and expunging the five-day suspension stands.[5]  Accordingly, because no further meaningful relief can be granted with respect to petitioner’s short-term suspension, his additional objections thereto must be dismissed as moot (seeAppeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).

Turning to the merits, in R.A. I, petitioner alleged that (1) the “prohibited group affiliation” and dress code provisions of respondent’s code of conduct (“code”) with which he was charged[6] were vague and ambiguous; (2) the November 19, 2007 notice was insufficient because it was provided in English, rather than in Spanish, and failed to clearly identify the charges against him and the specific conduct underlying those charges; and (3) he was denied the opportunity to confront and question complaining witnesses at the hearing.

 Petitioner argues that the “prohibited group affiliation” and dress code provisions with which he was charged were vague and ambiguous.  However, among the relief requested in his pending federal action, petitioner seeks a determination that these provisions are vague and ambiguous in violation of the federal constitution (Aleman v. Bay Shore Union Free School Dist., US Dist Ct, EDNY, Civ-08 1527).[7]  Specifically, petitioner’s federal action alleges that respondent’s dress code provision is “undecipherable, ambiguous, and not possible to understand with sufficient clarity and definitiveness so as to provide ... due process of law.”  Petitioner also objects to the “prohibited group affiliation” provision, noting that respondent has “conceded that it does not maintain a list that would inform individuals as to those clubs, groups or fraternal organizations that are sanctioned, or not sanctioned” by respondent.

Although petitioner’s pending federal action includes other claims and seeks additional relief in the form of damages, petitioner’s objections to the code provisions in this appeal and the federal action raise the same fundamental issue:  whether those provisions are unconstitutionally vague and ambiguous.  Under these circumstances, it would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in Federal District Court, particularly when those issues involve matters of Federal Constitutional law (seeAppeal of a Student with a Disability, 49 Ed Dept Rep 180, Decision No. 15,991; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).  I, therefore, decline to entertain jurisdiction over these claims at this time.  Consequently, petitioner’s objections to the provisions with which he was charged are dismissed without prejudice to the commencement of a new appeal within 30 days of the final disposition of the pending federal action if any additional relief is necessary in light of such disposition.

With respect to his State law claims, petitioner argues that he was not provided with reasonable notice of the superintendent’s hearing because the November 19, 2007 notice was provided in English rather than in Spanish, the dominant language of petitioner and his mother.  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). What constitutes “reasonable notice” varies with the circumstances of each case (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Appeal of a Student with a Disability, 46 Ed Dept Rep 385, Decision No. 15,540; Appeal of W.K., 46 id. 314, Decision No. 15,519).  One day’s notice has been held inadequate to provide an opportunity for a fair hearing (Carey v. Savino, 91 Misc.2d 50; Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360).  Respondent maintains that the written notice was reasonable because petitioner’s stepfather, whose dominant language is English and with whom petitioner and his mother reside, is a person “in parental relation” to petitioner.  Indeed, Education Law §3212 specifically includes stepparents in its definition of “persons in parental relation,” and such definition applies to the student discipline provisions of Education Law §3214.  Therefore, because the written notice was provided in the dominant language of a person in parental relation to petitioner, i.e. his stepfather, I cannot find such notice to be unreasonable.

Petitioner further maintains that respondent failed to provide him with “express and clear notice of the charges against [him] with particularized information sufficient to prepare an efficient defense.”  Specifically, petitioner contends that the written notice failed to inform him that the charges included a violation of respondent’s dress code and encompassed his participation in the November 13, 2007 altercation.  Respondent maintains that petitioner had sufficient notice of the charges against him and argues that, while the November 13, 2007 incident provided a context within which petitioner’s November 14, 2007 conduct was viewed, the charges against petitioner were based on the fact that he wore light blue clothing to school on November 14, 2007.

The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing” (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  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. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).

As petitioner points out, the November 19, 2007 notice states that R.A. was charged with “prohibited group affiliation” and “inciting violence” and does not specify whether the charges stemmed from his involvement in the November 13 altercation, his attire at school on November 14, or both.  Moreover, a review of the transcript of the superintendent’s hearing reveals a certain amount of confusion over the specific conduct underlying the charges against petitioner.  For example, while respondent’s attorney stated, “The allegations we’re here for today ... are that [petitioner] was wearing gang affiliated clothing,” Swinson testified that the charges against petitioner included his involvement in the November 13, 2007 altercation.

However, the record also indicates that petitioner’s five-day suspension, which was referenced in the November 19, 2007 notice, occurred as the result of an interview with Swinson.  In R.A. I, petitioner claimed 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, carrying a blue lanyard and carrying a blue bandana in his pocket that day.  Indeed, petitioner was expressly charged with “prohibited group affiliation,” which respondent’s code defines as “[a]ny activity, affiliation and/or communication in connection with a non-school sanctioned club/group, including fraternal organizations or gangs.”  By virtue of this charge, petitioner was on notice that his attire at school could constitute evidence of such affiliation and/or other prohibited gang-related activities.  Based on the record as a whole, therefore, I find that petitioner and his attorney had sufficient notice that the charges against him were based on his attire at school on November 14, 2007.

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).  Petitioner contends that he was denied the right to cross-examine the other students who were involved in the November 13, 2007 altercation at the shopping mall.  As discussed above, however, the record supports a finding that the charges against petitioner were based on his attire at school on November 14, 2007 and not on his participation in the November 13, 2007 altercation.  As a result, while petitioner was entitled to and did cross-examine Swinson, the witness to his November 14, 2007 conduct, his claim that he was denied the right to cross-examine students involved in the November 13, 2007 altercation must be dismissed.

THE APPEAL IS DISMISSED AS INDICATED ABOVE.

END OF FILE.

[1] Subsequent to commencing the §310 appeal, petitioner initiated an action in the United States District Court, Eastern District of New York, regarding his November 2008 suspension (Aleman v. Bay Shore Union Free School Dist, US Dist Ct, EDNY, Civ-08 1527) (“federal action”).  The federal action is currently pending and is discussed more fully later in this decision.

[2] The facts and procedural history underlying this matter are set forth in the original decision.

[3] The facts and procedural history underlying this matter are set forth in the decision.

[4] Although respondent filed a notice of appeal from the court’s June 26, 2009 judgment, it did not perfect its appeal within the required time frame (22 NYCRR §800.12; seeJemzura v. Mugglin, 207 AD2d 645, appeal dismissed 84 NY2d 977, reconsideration dismissed 84 NY2d 1025, reargument denied 85 NY2d 955, 86 NY2d 779).

[5] I note that, although petitioner filed a notice of appeal from certain portions of the court’s January 9, 2009 decision, he did not perfect his appeal within the required time frame (22 NYCRR §800.12; seeJemzura v. Mugglin, 207 AD2d 645, appeal dismissed 84 NY2d 977, reconsideration dismissed 84 NY2d 1025, reargument denied 85 NY2d 955, 86 NY2d 779).

[6] The record indicates that petitioner was also charged with “inciting violence” under respondent’s code.  However, petitioner does not appear to contest the validity of this provision in the instant appeal.

[7] I also note that the relief sought by petitioner in his federal action includes expungement of his record – the same relief sought in the instant appeal.