Appeal of the PARENT OF A STUDENT WITHA DISABILITY from action of the New York City Board of Education regarding student discipline.

Decision No. 16,574

(November 6, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Emily Sweet, Esq., of counsel

Legal Services NYC – Bronx, attorneys for petitioner, Alexander Artz, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the New York City Department of Education’s (“respondent”) determination to uphold the suspension of petitioner’s son, (“the student”). The appeal must be dismissed.

During the 2011-2012 school year, the student was a 15year-old ninth grade student with a disability at Eagle Academy in the Bronx, New York. On March 16, 2012, he was involved in a fight with another student in the park afterschool. He allegedly punched the other student in the mouth causing him to sustain a broken jaw that required treatment at a local hospital. By letter dated March 20,2012, respondent’s chief executive officer of the Office of School and Youth Development (“CEO”) notified petitioner that her son had been suspended from school effective March21, 2012 for punching a student in the mouth and causing serious injury, behavior which constituted a danger to the health, safety welfare and morals of both himself and others at school. A suspension hearing was initially scheduled for March 27, 2012 but was adjourned until April5, 2012 at petitioner’s request and concluded on April 23,2012. By letter dated May 16, 2012, petitioner was informed that the suspension of her son had been sustained following the suspension hearing and that her son would be suspended for 45 days effective March 21, 2012 and ending on May 31, 2012. By letter dated June 12, 2012, petitioner received a report of the CEO’s factual findings and determinations concluding that there was sufficient and substantial evidence presented at hearing to sustain the charges against the student. By letter dated July 9, 2012,petitioner, by her attorney, filed an appeal with respondent contending that her son’s suspension should be

reversed on the grounds that respondent violated Chancellor’s Regulation A-443III.3(e) and her son’s due process rights. By letter dated September 27, 2012, respondent denied petitioner’s appeal and upheld the student’s suspension based upon a finding that there were no procedural violations and that there was competent and substantial evidence that he committed the acts to which he was charged. This appeal ensued.

Petitioner argues that her son’s due process rights were violated because respondent failed to conduct an adequate investigation and did not follow Chancellor’s regulations regarding the same. Petitioner seeks annulment of the suspension and expungement of her son’s record.

Respondent contends that the appeal is untimely. Respondent claims that the disciplinary decision is supported by competent and substantial evidence, that the investigation and suspension hearing was adequate and there were no violations of Chancellor’s regulations or due process.

I must first address some procedural issues. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).

This appeal is from the decision of the Chancellor dated September 27, 2012 upholding the student’s suspension. Accordingly, to be timely, the appeal needed to be commenced within 30 days of petitioner’s receipt of the Chancellor’s decision. The record does not indicate the date of petitioner’s receipt, but applying the normal five day rule, the appeal should have been commenced on or before November 2, 2012. However, this appeal was not commenced until November 15, 2012. Petitioner’s counsel

submitted a request for a 30-day extension of time to commence this appeal to my Office of Counsel on October 24,2012. On October 25, 2012, my Office of Counsel responded that I would consider excusing a failure to commence an appeal within the time specified for good cause shown consistent with 8 NYCRR §275.16.

The petition acknowledges that the commencement of this appeal was not timely. The excuse provided is that petitioner’s counsel was on parental leave from September27, 2012 (the date of Chancellor’s letter) until October24, 2012. While I am certainly sympathetic to petitioner’s counsel’s situation, it appears from the record that petitioner’s counsel is employed by a large not-for-profit corporation which employs a staff of 70 or more attorneys. It is not clear from the explanation provided as to why this appeal was not afforded priority considering the 30day time frame in which an appeal must be commenced or why counsel’s cases were not monitored or reassigned during his leave of absence. Given the delay in commencing this appeal and the lack of a satisfactory explanation of why other attorneys in the law office could not have handled this appeal in a more timely manner, I find the explanation provided inadequate (see Appeal of M.E., 51 Ed Dept Rep, Decision No. 16,272; Application of the Board of Education of the Wappingers Central School District, 40 id. 400,Decision No. 14,510; Application to Reopen the Appeal ofR.S., 38 id. 419, Decision No. 14,065). Accordingly, the appeal must be dismissed as untimely.

In addition, 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 suspensions from school have been served and, therefore, the appeal is moot, except to the extent petitioner seeks expungement of her son’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). Thus, to the extent that petitioner seeks to challenge the discipline imposed by respondent, the appeal must be dismissed as moot (Appeal of Camille S., 39 Ed DeptRep 574, Decision No. 14,316).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. 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., 293AD2d 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). A hearing officer may draw a reasonable inference if the record supports the inference (Bd. of Educ. of MonticelloCent. School Dist. v. Commissioner of Educ., et al., 91NY2d 133; Appeal of C.R., 48 Ed Dept Rep 195, Decision No.15,834; Appeal of P.D., 46 id. 50, Decision No. 15,438).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).Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (see Bd. of Educ. of Monticello Cent. School Dist.

v. Commissioner of Educ., et al., 91 NY2d 133; Gray v.Adduci, 73 NY2d 741; Appeal of J.A., 48 Ed Dept Rep 118,Decision No. 15,810). In addition, where a student admits the charged conduct, the admission is sufficient proof of guilt (Appeal of M.K., 48 Ed Dept Rep 462, Decision No.15,916; Appeal of J.A., 48 id. 118, Decision No. 15,810;Appeal of D.M., 47 id. 433, Decision No. 15,745).

At the suspension hearing, petitioner and the student were accompanied by their counsel. Mahaliel Bethea, Dean of Eagle Academey (“Dean Bethea”) who represented the school, the victim and the victim’s mother testified on behalf of respondents. Dean Bethe a testified that on the day of the altercation he was notified of the incident and that he spoke to and obtained written statements from two eyewitnesses who were also students at Eagle Academy. He further testified as to what those eyewitnesses said and what was contained within their statements. Respondent accepted those statements into evidence without objection from petitioner’s counsel. The student did not testify, but petitioner subpoenaed respondent’s two eyewitnesses as well as two additional eyewitnesses who were to testify on behalf of the student. However, none of these students appeared at the hearing. At the close of the hearing, petitioner’s counsel noted petitioner was not disputing that her son did in fact punch the victim but argued that

the student’s conduct was provoked by the victim. Furthermore, the hearing officer found the oral testimony given by Dean Bethe a, the victim and the victim’s mother credible and concluded that there was sufficient and substantial evidence to sustain the charges against the student.

Before a student is suspended for more than five days, he or she has a right to a fair hearing that includes the right to cross-examine witnesses against him or her (Education Law §3214(3)(c)(1); Appeal of N.H. and E.H., 47Ed Dept Rep 467, Decision No. 15,756; Appeal of Coleman, 41id. 101, Decision No. 14,628). By permitting the district to introduce written statements of two students who allegedly witnessed the incident in lieu of their live testimony, respondent deprived petitioner of the opportunity to cross-examine the students in question (see, Appeal of N.H. and E.H., 47 Ed Dept Rep 467, Decision NO.15,756; Appeal of Coleman, 41 id. 101, Decision No. 14,628). Although respondent based the determination of guilt in part on these depositions, there is sufficient evidence to otherwise sustain the charges, based upon the live testimony presented during the hearing, as well as on the student’s admission of guilt. To the extent that petitioner contends that her son acted in self defense or was provoked by the victim, such explanation, even if established, would not nullify a finding of guilt, in light of the severity of the student’s conduct and the seriousness of the injury he caused. Respondent’s reliance in part on the written statements constitutes harmless error and, on this record, I find no basis for disturbing the finding of guilt. However, I remind respondent that, in 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.

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

THE APPEAL IS DISMISSED. END OF FILE