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Decision No. 16,252

Appeal of L.P., on behalf of her grandson, from action of Joel I. Klein, Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 16,252

(June 14, 2011)

DLA Piper LLP (US), attorneys for petitioner, Brian E. Andreoli, Esq., of counsel

Michael A. Cardozo, Esq., Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner challenges the decision of Joel I. Klein, Chancellor of the New York City Department of Education [1] (“respondent”), to suspend her grandson.  The appeal must be sustained in part.

On January 29, 2008, petitioner’s grandson, an 11-year-old student at Intermediate School 228, urinated on a school bus.  By letter dated January 31, 2008, the Chief Executive Officer of the Office of School and Youth Development (“CEO”) notified petitioner, on behalf of the principal, that her grandson was suspended from school as of February 1, 2008 and that a superintendent’s hearing was scheduled for February 7, 2008.  The student was charged with exposing his penis and urinating on another student while on a school bus, thereby constituting a danger to the health, safety, welfare and morals of himself and others at the school.

A hearing was held on February 27, 2008 before a hearing officer after two adjournments at petitioner’s request.  On February 29, 2008, the CEO issued a determination that the suspension “has been sustained” and that petitioner’s grandson was suspended for 90 days, effective February 1 through June 24, 2008.  During that time, the student was to attend an Alternative Learning Center.  The letter also indicated that “a formal disposition letter” would follow.  By letter to petitioner dated April 17, 2008, the CEO confirmed “the disposition of your child’s suspension” and set forth a full report of the findings.  The letter apparently was faxed to petitioner’s attorney on May 8, 2008.  Petitioner appealed the CEO’s suspension decision to respondent, who sustained the suspension by decision dated January 22, 2009.  This appeal ensued. 

Petitioner contends that the district failed to provide timely written notice, required by Education Law §3214(3)(b)(1), prior to the initial five-day suspension. She also claims she was not provided such notice within 24 hours of the suspension, as required by Chancellor’s regulations.  She further asserts that her grandson was suspended improperly for more than five school days prior to the disposition of a hearing on the suspension.  She claims that the finding of guilt was not based on credible evidence, that the hearing was procedurally defective and that the penalty was excessive.  She challenges the timeliness of both the CEO’s April 17, 2008 determination and respondent’s January 22, 2009 decision.  Petitioner also asserts that the district failed to provide her grandson transportation to the Alternative Learning Center during the suspension.  Petitioner requests annulment of the suspension and expungement of any reference in her grandson’s record.  She also asks that I direct respondent and its regional offices to comply with statutory and regulatory requirements in issuing decisions and seeks costs, disbursements and fees.

I must first address several procedural issues.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The suspension has been served and, therefore, the appeal is moot except to the extent petitioner seeks expungement of the student’s record (Appeal of F.W., 48 Ed Dept Rep 399, Decision No. 15,897; Appeal of L.O. and D.O., 47 id. 194, Decision No. 15,666) and costs, disbursements and fees.

However, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875).  Accordingly, petitioner’s request for costs, disbursements and fees is dismissed.

Petitioner objects to respondent’s answer as untimely.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813). 

The petition was served on February 20, 2009, and respondent served his answer on March 30, 2009, well beyond the required 20-day period.  Respondent’s counsel requests acceptance of the late answer, asserting that, due to an office oversight, he was not assigned the matter until March 12, 2009.  Respondent’s excuse is not compelling and, therefore, I have not accepted the late answer.  Accordingly, the factual allegations set forth in the petition are deemed to be true (8 NYCRR §275.11).  Because I have not considered respondent’s answer, I need not consider petitioner’s reply with supporting memorandum of law.

Petitioner claims that her grandson is a student with a disability within the meaning of the federal Individuals with Disabilities Education Act (20 USC §1401 etseq.) (“IDEA”) and §504 of the Rehabilitation Act (29 USC §794) and asserts that should mitigate the length of the suspension imposed.  Petitioner claims that her grandson had an individualized education program during the previous school year, but admits that he did not have one during the year in which he committed the charged conduct.  Based on the record before me, including the transcripts of the hearing submitted by petitioner, I cannot conclude that petitioner’s grandson was identified as a student with a disability at any time.  Moreover, testimony at the hearing, which petitioner does not refute, indicates that she refused to have her grandson evaluated for a disability.  Petitioner may not now claim that a purported disability should be considered a mitigating factor in assessing penalty.  Indeed, her refusal to permit the student’s evaluation precludes any assertion that he even be considered a student presumed to have a disability (see 8 NYCRR §201.5[c][1]).  I note that petitioner does not raise any other claims asserting the rights of a student with a disability or a student presumed to have a disability for discipline purposes in this appeal.

Turning to the merits, petitioner contends that she did not receive timely notice of her grandson’s initial five-day suspension as required by Education Law §3214(3)(b)(1).  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 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. 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[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 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).

Petitioner was notified by letter dated January 31, 2008 that her grandson was suspended on February 1, 2008 and that a hearing was scheduled for February 7, 2008.  The letter did not apprise petitioner of her right to an informal conference prior to the suspension, nor does the record contain any indication that the student’s presence in the school posed a continuing danger or ongoing threat of disruption.  Petitioner, thus, was not provided timely notice and an opportunity for an informal conference prior to the initial five-day suspension, as required by Education Law §3214(3)(b)(1).  Consequently, the suspension from February 1 through February 7, 2008 must be expunged from the student’s record. 

Petitioner also raises the timeliness of the above-noted notice with respect to the student’s removal from his regular school program and assignment to in-school suspension on January 30 and 31, 2008.  In-school suspensions are not subject to the procedures set forth in Education Law §3214 (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598).  Other than timeliness of the notice, petitioner sets forth no further challenge to the in-school suspension.  Petitioner’s timeliness claim, which is based on her misperception that the procedures set forth in Education Law §3214 apply to an in-school suspension, therefore, is without merit. 

Petitioner claims that her grandson was improperly suspended for more than five days prior to disposition of a superintendent’s hearing.  Education Law §3214(3)(c) mandates 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 adverse to the interests of that student 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 Spensieri, 40 Ed Dept Rep 51, Decision No. 14,419).  Thus, at the end of the fifth day of suspension, the student must be readmitted to school unless a hearing is held and a decision is rendered thereon within the initial five-day suspension period, unless an adjournment is requested by the student or parent (Appeal of D.H., 47 Ed Dept Rep 77, Decision No. 15,631; Appeal of McMahon, et al., 38 id. 22, Decision No. 13,976).

The superintendent’s hearing was timely scheduled for February 7, 2008, the fifth day of suspension, according to petitioner.  However, the record indicates that petitioner requested two adjournments until February 27, 2008 when the hearing was held.  Because petitioner was provided an opportunity for a hearing on February 7, 2008 but twice requested an adjournment until February 27, 2008, there is no basis for expunging the student’s continued suspension from school during that period.

However, petitioner also claims that she did not receive a timely disposition after the hearing and that her grandson’s suspension prior to such receipt was impermissible.  The record indicates that, on February 29, 2008, the CEO issued a disposition decision confirming the suspension and continuing it for “90 school days, effective February 1, 2008 through June 24, 2008.”  Petitioner asserts that the February 29, 2008 disposition was not issued until two days after the hearing and challenges her grandson’s continued suspension during these two days.  While the delay in rendering the disposition is not a basis for overturning the suspension in its entirety, the student’s continued exclusion from school for two days after the hearing and prior to the issuance of any disposition determination is improper (Appeal of V.C., 45 Ed Dept Rep 571, Decision No. 15,419).  To the extent prior decisions of the Commissioner are inconsistent with Appeal of V.C. and this decision, they are expressly overruled.  Accordingly, the suspension for February 28 and 29, 2008 must be expunged from the student’s record.   

Petitioner also asserts that the CEO failed to provide a full report of the findings and disposition within the time period prescribed by Chancellor’s regulations and that she was not timely provided a transcript of the hearing.  Petitioner contends that the delay violates due process requirements and warrants annulment of the suspension.

Chancellor’s regulations[2] require issuance of a full report of the findings and disposition within five school days of the hearing (Chancellor’s Regulation A-443 III B.3.u.3).  According to the record, the CEO’s full report of the findings and disposition was rendered on April 17, 2008.  The record does not indicate when petitioner received it, however, until it was faxed to her representative on May 8, 2008. 

Although petitioner complains that the full report of findings was not issued within the mandated five school day period set forth in the Chancellor’s regulation, she does not challenge the sufficiency of the CEO’s February 29 disposition as a determination of guilt after a hearing, required by Education Law §3214.  Nor does she assert that such determination was non-final from which an appeal to the Chancellor could be brought.  Having been afforded a hearing and determination thereafter upholding the suspension, I find no basis for annulment of the suspension once the February 29 disposition determination was issued. 

Although the CEO’s issuance of the full report did not comply with the timelines set forth in Chancellor’s regulations and petitioner had to make several requests for the transcript, she was provided with the transcript and did have the opportunity to appeal the suspension to the Chancellor, who, after considering her appeal, upheld the suspension.  While I admonish respondent of its obligation to comply with the timelines in the Chancellor’s regulations, under these circumstances I find no prejudice to petitioner and no due process violation warranting annulment of the suspension.  The appropriate remedy to enforce compliance with the Chancellor’s regulations regarding provision of a transcript or issuance of a full report by the CEO is to seek an order compelling such compliance.   

Petitioner also claims that the Chancellor’s decision on her appeal was not timely issued in accordance with the Chancellor’s regulations.  Pursuant to the regulations, the Chancellor must issue a written statement of the basis of the appeal decision within 15 working days of the completed filing of the appeal record (Chancellor’s Regulation A-443 IV B.4.).  Here, it was rendered approximately eight months from the date of appeal.  Petitioner commenced her appeal on June 9, 2008 and her grandson’s suspension ended on June 24, 2008, less than 15 working days after filing the appeal.  On these facts, petitioner has not demonstrated any prejudice from delay.  Respondent is admonished to adhere to the regulatory timeframe in the future.

Petitioner’s claim that the finding of guilt was based on insufficient evidence is without merit.  A 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).  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). 

Petitioner does not deny that her grandson exposed his penis and urinated on a school bus.  Rather, she claims that the record does not support the finding that he intentionally urinated in G.C.’s face.  Both G.C. and S.D., students present on the bus, testified at the hearing, as did petitioner’s grandson.  Both G.C. and S.D. testified that petitioner’s grandson urinated on G.C. and was laughing at the time.  Their written statements, taken at the time of the incident, are consistent with that testimony.  Although petitioner challenges certain differences in the words the students used in the written statements compared to their testimony, the gravaman of both their oral and written evidence is consistent and unequivocal.  While the students provided more detail during the hearing, their testimony did not contradict their written statements.  In contrast to both G.C. and S.D., petitioner’s grandson testified that he urinated into a bottle in the back of the bus and that, when he saw another student crawling under the seats, he dropped the bottle, splashing urine onto the other student.  However, neither G.C. or S.D. mentioned the existence of any bottle in their written statements or oral testimony. 

Petitioner notes two specific areas of testimony in challenging G.C. and S.D.’s credibility.  First, she notes that the students’ testimony differed as to S.D.’s location on the bus.  She also challenges G.C.’s description of the length of time petitioner’s grandson urinated on him.  Even if the students were not entirely accurate in their recollection on those points, I do not conclude that necessarily compromises their overall credibility.  Upon review of the hearing testimony, I do not find clear and convincing evidence that the hearing officer erred in finding G.C. and S.D. credible, rather than petitioner’s grandson. 

Petitioner also asserts that the school’s failure to question the bus driver constitutes a significant error.  I disagree.  G.C. testified that he attempted to tell the bus driver what happened, but the driver “didn’t care.”  With two witnesses available, the school’s decision not to question the driver is not fatal. 

Petitioner also challenges the admission into evidence of a written statement by Q.B. – another student on the bus - without calling him as a witness.  She asserts this improperly precluded any opportunity for cross-examination.  Q.B.’s statement was provided to school officials after the incident and attests to petitioner’s grandson’s conduct.  By permitting the district to introduce Q.B.’s written statement in lieu of his live testimony, the hearing officer deprived petitioner the opportunity to cross-examine Q.B. (Appeal 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; Appeal of R.C., 41 id. 446, Decision No. 14,741).  However, the CEO and respondent did not base their decisions on Q.B.’s statement.  They relied, instead, on the evidence presented by G.C., S.D., and petitioner’s grandson.  Therefore, on this record I find the admission of Q.B.’s statement constitutes harmless error.  However, I remind respondent that, 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.

Petitioner also asserts that the hearing officer lacked impartiality and failed to control the hearing.  A review of the transcript reveals that the hearing officer conducted the hearing in an even-handed manner, providing equal opportunity for both sides to present evidence and question witnesses.  Although occasional informal exchanges between hearing attendees occurred, I do not find evidence of bias on this record that would warrant annulment of the hearing officer’s decision.

Petitioner claims the penalty was excessive, particularly considering her grandson’s alleged disability.  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).  As noted above, there is no evidence that petitioner’s grandson was identified as a student with a disability during the relevant time period.  Given the severity and offensive nature of the student’s conduct, exposing his penis on a bus and urinating on another student’s face, as well as the significant health risk presented, I cannot conclude that the suspension was excessive.

Finally, petitioner’s challenge to respondent’s alleged failure to provide transportation to the Alternative Learning Center is moot.  As noted above, the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner commenced this appeal after her grandson completed his suspension and assignment to the Alternative Learning Center.  Consequently, no meaningful relief on that claim may be granted.

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 petitioner’s grandson from February 1, 2008 through February 7, 2008, February 28, 2008, and February 29, 2008 be annulled and expunged from the student’s record.

END OF FILE.

[1] Dennis M. Walcott is currently the Chancellor of the New York City Department of Education.

[2] Although the Chancellor’s regulations have not been submitted as part of the record, I take administrative notice of the regulations posted on the official website of the New York City Department of Education.