Decision No. 16,242
Appeal of L.T., on behalf of her son D.T., from action of Joel I. Klein, as Chancellor of the New York City Department of Education regarding student discipline.
Decision No. 16,242
(June 8, 2011)
Leslie S. Nizin, Esq., attorney for petitioner
Michael Cardozo, Esq., Corporation Counsel, attorney for respondent, Serena Longley, Esq., of counsel
KING, Jr., Acting Commissioner.--Petitioner appeals the decision of Joel I. Klein, Chancellor of the New York City Department of Education  (“respondent”), to suspend her son. The appeal must be sustained in part.
During the 2009-2010 school year, D.T. attended eighth grade at P.S./I.S. 208 (“school”) in respondent’s district. On May 12, 2010, D.T. was involved in an incident at school, wherein he and his friend (“friend”) engaged in sexual activity with a seventh-grade female (“student”).
On or about May 13, 2010, the student reported the incident to a school guidance counselor and on or about May 17, 2010, school personnel and police interviewed several students, including D.T. and the student.
By notice dated May 18, 2010 (“notice”), petitioner was informed that D.T. would be suspended from school beginning on May 19, 2010 and that a hearing was scheduled for May 25, 2010. According to the notice, D.T. was charged with the following conduct:
[D.T.] in participation with [his friend], called [the student] out of her class into the staircase and
- told [the student] to pull down her panties; and
- touched [the student’s] vagina with his fingers; and
- told [the student] that they would spread rumors about her if she reported them.
This behavior constitutes a danger to the health, safety, welfare and morals of your child and others at the school.
The record indicates that at the pre-hearing conference on May 25, 2010, the hearing officer asked petitioner whether she “wanted to proceed to the hearing today” and petitioner’s attorney requested an adjournment to obtain a witness. The hearing was held on June 6 and 9, 2010, and the student, D.T., petitioner and the guidance counselor testified.
The student testified that, on the morning of May 12, 2010, D.T. and his friend approached her classroom and that D.T.’s friend called her out of her classroom. The student explained that she believed D.T.’s friend did so in order to ask her to engage in sexual contact with him. She testified that she left her classroom and followed the boys to a nearby stairway because she “wanted to see what they wanted, and I wanted [D.T.’s friend] to finally leave me alone.” According to the student, after she refused the friend’s requests to engage in sexual acts with him, he told her that if she did not do so, he would spread rumors about her.
The student also testified that she engaged in sexual contact with D.T.’s friend and that she was crying. When D.T.’s friend said that it was D.T.’s “turn,” D.T. sat down on the stairs, told the student to pull down her pants and touched her vagina. The student testified that she “started crying more” and did not feel that she could leave the area because “they would have caught me.” The student testified that, when another student entered the stairway, she pulled up her pants and returned to her classroom.
The record indicates that the student prepared two written statements dated May 17, 2010 (“first statement”) and May 18, 2010 (“second statement”), which were introduced into evidence at the hearing. In the first statement, the student claimed that on May 12, 2010 she left her classroom to go to the bathroom when D.T. “pulled” her to the stairway. She also testified that D.T.’s friend pulled her hair, that D.T. unbuckled her belt, and that she “turned around and slapped [D.T.], then [D.T.’s friend] had a tighter grip on my hair and [D.T.] pulled my panties down ... and he touched me.” At the hearing, the student testified that the first statement was not an accurate representation of the incident and explained that she included the allegations of physical force because she “didn’t want it to seem that [the incident] was my fault.”
The student testified that she wrote the second statement after she was told by the police that she could be arrested if she did not tell the truth. She explained that in the second statement, she “took out” the “hair pulling,” the “slapping” and the “unbuckling the belt from [D.T.]” because “it wasn’t true.” The student noted that she also “added the stuff that [she] didn’t put in the first [statement],” including “physical touching.” Specifically, in the second statement, the student repeated her claim that D.T. told her to pull her pants and panties down “[a]nd he touched my private....” She also stated that she “started crying more. And when he touched it, I flinched, then I pulled my panties and pants up.... I was nervous and scared and they also threatened me.”
D.T. testified that he and his friend were together in the hallway on the morning of May 12, 2010 when his friend called the student from her classroom. According to D.T., although he had no prior discussions with his friend about calling the student out of her classroom, he suspected that his friend intended to proposition the student for sexual contact. According to D.T., his friend told the student to wait by the stairway and then told D.T., “I have [the student] in the back staircase[,] are you with it?” D.T. testified that he followed his friend into the stairway and “kept a little bit up to look out” while his friend engaged in sexual contact with the student, who was crying. According to D.T., “after a while I sat down on the stairs” and his friend said “do you have next in doing this, and I said no cause that’s a little bit too much.” D.T. explained:
I just sat down on the stairs and then after a while [the friend] said well go sit on his lap and then [the student] came to me and ... she said you’re going to go hard on me like how [the friend] did ... [a]nd I said no, cause I don’t want to do all that.... She said okay, then she sits down on my lap, and starts grinding on me.... Then after a while [the friend] came and started touching her butt, just a little bit but ... it was kind of close to my area. So that’s when I was like no that’s enough.
The guidance counselor testified that, on May 13, 2010, the student came to her office and stated that, on May 12, 2010, she was on her way to the bathroom when D.T. and his friend “were trying to get her under the staircase” to engage in sexual activities and that her friend tried to protect her. The guidance counselor stated that, based on the student’s description of the incident and her demeanor, she did not believe that the student had been “violated” and that the student appeared excited to participate in an upcoming school trip and did not appear to be “traumatized” or “troubled.” The guidance counselor testified that she reported the incident to the dean “right away.”
The record indicates that, on or about May 17, 2010, the school received a complaint from a parent about the May 12, 2010 incident. The guidance counselor testified that several students were then questioned, including the student and D.T. The guidance counselor stated that she was present when the student was questioned first by school staff, including the principal and assistant principal, and then by the police. According to the guidance counselor, the student’s account of the May 12, 2010 incident to both school staff and the police closely matched her first written statement, including the allegation that D.T. had touched her. However, the guidance counselor also testified that the school questioned a classmate who witnessed the student leaving her classroom on May 12, 2010 and that the classmate’s statements were inconsistent with the student’s account of the events surrounding the incident. The guidance counselor also testified that, during a counseling session with the student on May 18, 2010, the student stated that she, not D.T., pulled her pants down on May 12, 2010. The guidance counselor then took the student to the principal, where she repeated this statement.
The guidance counselor also testified that, after the police questioned D.T. on May 17, 2010, the assistant principal told her that D.T. and his friend were being taken to the police station and instructed her to “go there until their parents ... came for them.” The guidance counselor stated that D.T.’s mother had been “called already” and that the assistant principal told her that “the parents will be coming there.” She explained that she and the school’s at-risk counselor were at the police station with D.T. for 15 to 20 minutes before petitioner arrived.
In a decision dated June 17, 2010, the Chief Executive Officer of respondent’s Office of School and Youth Development (“CEO”) found D.T. guilty of “engaging in physical sexual aggression/compelling or forcing another to engage in sexual activity” in violation of Chancellor’s Regulation A-443 and the “Citywide Standards of Discipline and Intervention Measures” (“standards”). The CEO reasoned:
The weight of the credible evidence presented established that on May 12, 2010 ... D.T., in participation with [his friend], called [the student] out of her class into the staircase and in participation with [his friend] told [the student] to pull down her pants and panties and rubbed his penis against her; and [D.T.] “grinded” against [the student’s] buttocks.
The CEO also found that D.T.’s “continued and voluntary presence throughout the incident, even specifically after [his friend] states ‘I have [the student] in the back staircase. Are you with it?’ ... is sufficient evidence to consider [D.T.] as acting in concert with [his friend].”
Based on her findings, the CEO continued D.T.’s suspension until May 18, 2011, noting that D.T.’s anecdotal record contained “disciplinary issues regarding excessive cutting, harassment of students, loitering, and insubordination. The Superintendent has suspended the student once previously for threatening a student.” The CEO stated that D.T. would be eligible for review for early reinstatement on January 19, 2011 and that his suspension would be expunged from his record upon his graduation or departure from respondent’s schools.
The record indicates that petitioner appealed the CEO’s decision and requested interim relief by letter dated August 31, 2010. However, the record does not contain a copy of petitioner’s appeal letter. Petitioner’s request for interim relief was denied in a September 7, 2010 decision. In an October 29, 2010 decision, respondent denied petitioner’s appeal. This appeal ensued.
Petitioner argues, interalia, that D.T.’s due process rights were violated because the school failed to (1) provide her with the opportunity for an informal conference with the principal prior to D.T.’s suspension; (2) conduct the pre-hearing conference within five days of D.T.’s suspension; (3) allow her to be present when D.T. was questioned by school staff; (4) contact her before allowing police to question and arrest D.T.; and (5) inform police of the student’s “prior inconsistent statements” to the guidance counselor on May 13, 2010. Petitioner also argues that (1) D.T. was improperly found “personally liable” for his friend’s conduct “pursuant to a legal theory of accomplice/conspiracy liability (not found anywhere within the Student Discipline Code) which constitutes an ex post facto application of law prohibited by the United States Constitution;” (2) the record contains “clear and convincing” evidence that the CEO’s determination of the student’s credibility is inconsistent with the facts; (3) the CEO failed to apply the “substantial evidence” standard in determining D.T.’s guilt; and (4) “the determination of [the student’s] credibility by the Hearing Examiner that [D.T.] did not touch [the student’s] vagina and only grinded against [her] buttocks was misapprehended and ignored by the Respondent below” (emphasis in original). Petitioner seeks annulment of the suspension, expungement of D.T.’s record, and his immediate reinstatement to the high school of his choice.
Respondent contends that the disciplinary decision is supported by competent and substantial evidence and that there were no violations of applicable laws, Chancellor’s Regulations or due process.
As a preliminary matter, I note that, to the extent petitioner attempts to allege improper conduct on the part of the police in connection with D.T.’s arrest, I lack jurisdiction to address such claims under Education Law §310.
I also note that petitioner raises several claims “for the purpose of preserving [them], if necessary, for a subsequent appeal to the New York State Supreme Court.” In addition to arguing generally that the “findings ... are legally insufficient” and “against the weight of the record,” petitioner specifically argues that the substantial and competent evidence standard of proof is unconstitutional “to apply to student’s [sic] accused of charges of sexually abusing a female child” and “when a student receives a superintendent’s suspension that results in a one year suspension and assignment to a long term suspension center.” 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). Other than the conclusory allegations listed above, petitioner has cited no law, regulation, or case law to support and no evidence to explain her claims, which must therefore be dismissed.
Petitioner maintains that she was not provided with an opportunity for an informal conference with the principal prior to D.T.’s May 19, 2010 suspension as required by Education Law §3214(3)(b)(1). Respondent contends that D.T. was suspended by the CEO for more than five days and that the provisions of Education Law §3214(3)(b)(1) do not apply in this case. 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[b], 8 NYCRR §100.2[l]; Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of a F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823). 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[b], 8 NYCRR §100.2[l]).
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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of a Student with a Disability, 48 id. 79, Decision No. 15,798).
Although respondent urges that Education Law §3214(3)(b)(1) does not apply to long-term suspensions, I note that it is well settled that any disciplinary procedures used in school must meet minimum standards of fairness and due process (seeGoss v. Lopez, 49 U.S. 565; Appeals of McMahon and Mosely, et al., 38 Ed Dept Rep 22, Decision No. 13,976). Moreover, 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 F.W., 48 Ed Dept Rep 399, Decision No. 15,897). In this case, however, D.T. was not provided with any such due process – neither the processes required by Education Law §3214(3)(b)(1) nor those required by Education Law §3214(3)(c)(1) – prior to the start of his suspension on May 19, 2010. Consequently, the initial five-day suspension from May 19 through May 25, 2010 must be expunged from D.T.’s record.
With respect to D.T.’s long-term suspension, I find no merit to petitioner’s claim that she and D.T. were denied due process “in the delay in conducting the pre-hearing conference, which should have been conducted within five days of the suspension.” Initially, I note that, contrary to petitioner’s assertion, the law contains no requirement that a “pre-hearing conference” be conducted within five days of a suspension. However, as noted above, Education Law §3214(3)(c)(1) does require that a suspension may not continue beyond five school days unless and until the student has been afforded an opportunity for a hearing and a determination of guilt has been made (Ross v. Disare, 500 F.Supp. 928 [S.D.N.Y. 1977]; MacDonald v. Tompkins, 67 Misc.2d 338 [Sup. Ct. Onondaga Co. 1971]; Appeal of V.C., 45 Ed Dept Rep 571, Decision No. 15,419). Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing sustaining a longer period of suspension is held within the initial five-day suspension period or an adjournment is requested by the student or parent (Appeal of Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Matter of Wehner, 22 id. 661, Decision No. 11,110). Where a hearing is timely scheduled, but adjourned at the parent’s request, the five-day requirement is vitiated and the student may remain out of school beyond five days (seeAppeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of Bajardi, 33 id. 371, Decision No. 13,082; Appeal of Wehner, 22 id. 661, Decision No. 11,110).
In the instant appeal, the suspension hearing was scheduled for May 25, 2010, the fifth day of D.T.’s suspension. However, the record indicates that, upon petitioner’s request for an adjournment, the hearing was rescheduled for June 4, 2010. Moreover, based on petitioner’s request to further question a witness, the hearing was continued on June 9, 2010. Because petitioner was provided with an opportunity for a hearing on May 25, 2010 but requested adjournments as described above, there is no basis for expunging D.T.’s continued suspension from school after May 25, 2010.
Petitioner also claims that she was not allowed to be present when D.T. was questioned by school staff. However, I note that there is no legal requirement that a parent be contacted prior to (or be present during) an administrative investigation by school personnel of an incident involving student conduct (Appeal of P.W., 50 Ed Dept Rep __, Decision No. 16,119; Appeals of T.W., et al. and D.D., et al., 46 id. 154, Decision No. 15,472; Appeal of Hyde, 38 id. 719, Decision No. 14,125), and petitioner has not proven that respondent has adopted such a policy. Indeed, respondent denies that Chancellor’s Regulation A-443 contains any such requirement. Petitioner, therefore, has failed to meet her burden on this claim.
Petitioner argues that the school failed to contact her before allowing police to question D.T. in violation of Chancellor’s Regulation A-412  and “concealed” certain evidence from the police. With respect to the former claim, respondent concluded that “[t]here is no hearing testimony regarding whether the school contacted [D.T.’s] mother when the police arrived and spoke with [D.T.]. Therefore, I am unable to make a determination on this issue.” With respect to the latter claim, respondent stated that “[t]here is nothing in the record before me regarding what evidence, if any, was provided to the police. Nonetheless, the decision of the police to arrest [D.T.] is not before me on appeal and I cannot speculate on factors the police may have considered in deciding to make an arrest.” Because these issues were not adjudicated below, they may not be raised in an appeal before the Commissioner under Education Law §310 challenging respondent’s determination sustaining the student suspension (Appeal of C.M., 50 Ed Dept Rep __, Decision No. 16,142; Appeal of K.H., 49 id. 210, Decision No. 16,004).
Petitioner further alleges that D.T. was “constructively denied the right to have school staff present with him when he was questioned by the police, in that, no staff members took any action on his behalf when he was searched, interrogated, and threatened with physical force by the police...” and that this “constitutes ... constructive compulsion to be questioned by the police in violation of [Chancellor’s Regulation] A-412....” However, other than her conclusory assertions, petitioner submits no evidence to support this claim. Moreover, respondent’s October 29, 2010 decision does not address this claim and there is no evidence that the issue was before respondent when he considered petitioner’s appeal. Indeed, as noted above, petitioner has failed to submit her August 31, 2010 letter appealing the CEO’s determination to respondent. Accordingly, since this claim does not appear to have been raised or adjudicated below, it may not be raised in an appeal before the Commissioner under Education Law §310 challenging respondent’s determination sustaining the student suspension (Appeal of C.M., 50 Ed Dept Rep __, Decision No. 16,142; Appeal of K.H., 49 id. 210, Decision No. 16,004).
I find no merit to petitioner’s contention that she was not provided with proper notice that D.T. could be held liable for the actions of his friend under a “theory of accomplice/conspiracy liability.” 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 a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666). 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 a Student Suspected of Having a Disability, 48 Ed Dept Rep 391, Decision No. 15,895; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666). As indicated in the May 18, 2010 notice, D.T.’s suspension occurred as a result of his role in the May 12, 2010 incident at school during which he and a friend engaged in sexual contact with a female student. As a result, while the charges against D.T. reflect his friend’s involvement, such charges arose as a direct result of D.T.’s own conduct. Accordingly, I find that respondent’s notice adequately apprised petitioner of the charges against D.T. and the conduct underlying those charges and provided sufficient specificity for petitioner to mount a defense to the charges.
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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of V.D., 48 id. 89, Decision No. 15,800). Petitioner argues that respondent’s decision is “fatally defective” because the CEO failed to apply the “competent and substantial evidence standard” and instead applied “some unknown standard of proof.” First, I note that the record contains no evidence that petitioner raised this allegation in her appeal to respondent. I also note that, while the CEO’s decision does not specify the standard of proof applied, the competent and substantial evidence standard was properly applied by respondent, as discussed below. As a result, this claim provides no basis upon which to annul D.T.’s suspension.
Petitioner’s claims that the finding of guilt was based on insufficient evidence and that respondent “wrongfully relied upon allegations which were discredited by the CEO” are without merit. Preliminarily, I note that the matter before respondent included the transcript and other evidence submitted at the hearing. As a result, respondent properly considered whether the CEO’s findings were supported by competent and substantial evidence in the record, and concluded that:
While the CEO found that appellant “grinded” against [the student’s] buttocks, the record demonstrates that, consistent with the original charge, [D.T.] told [the student] to pull down her pants and touched [the student’s] vagina with his finger. At the hearing, [the student] testified that [D.T.] told her to pull down her underwear. She testified that she felt afraid of [D.T.] and that she complied with his request.... She further testified that [D.T.] “touched me” on “my private,” and that she started crying.... The hearing officer credited [the student’s] testimony, finding that it was detailed and corroborated in part by other credible testimony. In addition, both of [the student’s written] statements assert that [D.T.] touched her vagina.... The foregoing evidence established by substantial and competent evidence that [D.T.] told [the student] to pull down her underwear and touched her vagina. This conduct warrants a Superintendent’s suspension. Moreover, the portion of [the student’s] May 18, 2010 statement, clarifying that [D.T.] did not pull down her underwear but that she pulled it down in compliance with his request to do so, does not detract from the evidence establishing that [D.T.] touched her vagina....
Further, in terms of D.T.’s credibility, both the CEO and respondent gave weight to D.T.’s admission that when questioned by the school’s at-risk counselor about the incident, he initially denied being in the stairway and touching the student. 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 C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of B.M., 48 id. 441, Decision No. 15,909; Appeal of a Student Suspected of Having a Disability, 48 id. 391, Decision No. 15,895). Upon review of the hearing testimony and the record in this case, I do not find clear and convincing evidence that respondent erred in finding the student, rather than D.T., credible.
Moreover, I find no merit to petitioner’s assertions that D.T. was not guilty of “engaging in physical sexual aggression/compelling or forcing another to engage in sexual activity” because any sexual contact that occurred between D.T. and the student was consensual and voluntary. Contrary to petitioner’s assertions, however, D.T. admitted at the hearing that the student was crying while she and his friend engaged in sexual activity, and that he acted as a lookout while they did so. However, when his friend told D.T. that it was “his turn” to engage in sexual activity with the student, D.T. did not refuse or otherwise remove himself from the situation. Rather, D.T. left his lookout post and proceeded to engage in sexual contact with the student. Based on the record before me, therefore, I cannot conclude that respondent’s determination – that the record contained competent and substantial evidence that D.T. was guilty of the charges against him – was arbitrary or capricious.
Petitioner also contends that, because D.T. was “merely found to have grinded against [the student’s] buttocks,” a suspension of one year is excessive. I disagree. As explained above, the record contains competent and substantial evidence that D.T. was guilty of “[e]ngaging in physical sexual aggression/compelling or forcing another to engage in sexual activity.” 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 B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897). Pursuant to the standards, the penalties for such infraction range from a minimum of suspension for a “fixed period of 6-10 school days” to expulsion in certain circumstances, and include a one-year suspension and assignment to an alternative program with an automatic review for reinstatement after six months. The conduct for which D.T. was found guilty is grossly inappropriate and unacceptable and the penalty imposed was within the range established by the standards for such infraction. Moreover, the CEO noted that D.T.’s anecdotal record included a prior superintendent’s suspension for “threatening a student” and “disciplinary issues” including “harassment of students, loitering, and insubordination.” Accordingly, based on the record in this case, I cannot conclude that the suspension was excessive.
Finally, I note that the fact that other students who were involved in the 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 D.T., provided that, as here, the record establishes that he engaged in the misconduct and the penalty imposed is appropriate therefor (seeAppeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).
In view of the above disposition, I need not address petitioner’s remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent’s suspension of D.T. from May 19, 2010 through May 25, 2010 be annulled and expunged from his record.
END OF FILE.
 Dennis M. Walcott is currently the Chancellor of the New York City Department of Education.
 In its verified answer, respondent notes that while the pre-hearing conference transcript is dated May 24, 2010, the verified petition and other documents contained in the record indicate that the conference was held on May 25, 2010.
 Petitioner asserts that she received an “initial disposition” in this matter via email on June 14, 2010. However, the record does not contain a copy of such document.
 Although the Chancellor’s Regulations have not been submitted as part of the record in this appeal, I take administrative notice of the regulations posted on the official website of the New York City Department of Education.