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Decision No. 13,138

Appeal of PATRICIA MEREDITH, on behalf of her son, KIRK, from action of the Board of Education of the City School District of the City of New York regarding student suspension.

Decision No. 13,138

(March 24, 1994)

Washington Square Legal Services, attorney for petitioner, Randy Hertz, Esq., of counsel

O. Peter Sherwood, Esq., attorney for respondent, Vincent D'Orazio and Peter D. Winebrake, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals the suspension of her son, Kirk, and his transfer from I.S. 296 to I.S. 291. The appeal must be dismissed.

At the time of his suspension, petitioner's son was an eighth grade student at respondent's junior high school in Brooklyn, I.S. 296. He was suspended on April 2, 1992 for allegedly possessing a gun, showing it to a teacher, and ejecting the clip to show that the gun was loaded. When the teacher attempted to take Kirk to the dean's office, Kirk ran away. When Kirk was found, the weapon was not in his possession. The weapon was later found in Kirk's bookbag by the school safety officer. Petitioner's son was subsequently arrested by police.

A suspension hearing was scheduled for April 10, 1992, but petitioner did not appear and a certified letter sent to petitioner with notice of the hearing was returned as "undelivered." A suspension hearing was eventually held on May 11, 1992. Petitioner and Kirk attended the hearing, conducted by the supervisor of guidance, who upheld the suspension. The dispositional phase of the hearing was held on May 13, 1992 and petitioner's son was transferred to I.S. 291.

Petitioner appealed the suspension to Community School Board #32 (CSB #32) on July 2, 1992. By letter dated July 20, 1992, CSB #32 upheld the suspension without addressing any issues raised in the appeal. On August 14, 1992, petitioner filed an appeal with respondent, requesting reversal of CSB #32's determination upholding the suspension. Respondent dismissed the appeal on October 14, 1992. Petitioner filed an application for reconsideration on November 10, 1992, which was denied on January 13, 1993. This appeal ensued.

Petitioner alleges that Chancellor's Regulation A-440 was violated during the suspension and appeal procedures. The alleged violations include failure to timely notify petitioner of Kirk's suspension, failure to timely provide a hearing transcript and admission of improper evidence at the hearing. Petitioner seeks reversal of respondent's decision to suspend Kirk and also seeks to have the record of his suspension expunged. Petitioner also seeks an order directing respondent to appoint individuals without prior knowledge of the events in question as hearing officers in suspension hearings. She further requests sanctions for respondent's violations of Chancellor's regulations.

Respondent contends that its actions were reasonable, lawful and proper. Respondent denies that its hearing officer was biased and contends that the outcome of the hearing was fair. Respondent also contends that the procedural violations of the Chancellor's regulation were deminimis and not a basis to overturn the suspension. Respondent also argues that petitioner's equal protection claims are procedurally defective since they were first raised in the motion for reconsideration before respondent and were not properly preserved for appellate review.

Education Law '3214(3)(c) provides that:

No pupil may be suspended for a period in excess of five school days unless such pupil and the person in parental relation to such pupil shall have had an opportunity for a fair hearing, upon reasonable notice, at which such pupil shall have the right of representation by counsel, with the right to question witnesses against such pupil and to present witnesses and other evidence on his behalf.

Education Law '3214 incorporates the due process standards constitutionally required in cases involving student suspensions, including the right to written notice of the charges and the right to a hearing (see, Goss, et al. v. Lopez, et al., 419 US 565, 95 S. Ct. 729, 42 L.Ed 2d 725 [1975]). Chancellor's Regulation A-440, promulgated pursuant to '3214, requires that a parent be notified immediately, either by telephone or telegram, of a student's suspension that the superintendent send notice both by certified and regular mail and that the notice provide details of the suspension.

The record indicates that respondent made several unsuccessful attempts to contact petitioner by telephone. Petitioner later admitted that she had not supplied respondent with her current work telephone number. When respondent was unable to reach petitioner, respondent contacted Kirk's older sister, who came to school. Respondent's certified letter to petitioner's correct address was returned by the post office as undeliverable. While the delay in notification was regrettable, on the facts before me it is not a basis to reverse the suspension. Petitioner and her son fully participated in the pre-hearing conference and the suspension hearing, and were represented by both an attorney and an educational advocate. There is no evidence that petitioner's failure to receive notice prejudiced Kirk's right to a hearing.

Petitioner also alleges that procedural violations occurred during the hearing that warrant reversal of the suspension. Petitioner alleges that her son was not given the opportunity to prepare a signed written statement and that school officials failed to obtain handwritten statements from at least two witnesses to the incident, as required by Chancellor's regulations. Petitioner also objects to three items of evidence that were mentioned in the hearing transcript but not formally introduced. Petitioner also alleges that she failed to receive a timely copy of the hearing transcript, after repeated requests, interfering with her right to appeal. My review of the record indicated that while certain procedural violations of the Chancellor's regulation in this matter occurred, those violations were de minimis and not a basis to overturn the suspension. The procedural errors, as noted, did not fundamentally alter the course of the hearing. Petitioner has not presented evidence to show that her son has been prejudiced by those de minimis violations of the Chancellor's regulation.

Petitioner also asserts that Kirk's due process rights were violated by the lack of an impartial hearing officer at the suspension hearing. Specifically, she contends that the hearing was conducted by an individual with prior knowledge of the underlying events and that such prior knowledge prevented the hearing officer from being impartial. However, Education Law '3214(3)(c) specifically allows a superintendent who has suspended a student to conduct a suspension hearing or appoint a hearing officer to conduct the hearing. A superintendent who has suspended a student will necessarily have prior knowledge of the underlying events if the superintendent also conducts the suspension hearing. Therefore, the hearing officer's mere possession of prior knowledge is not a violation of petitioner's due process rights. Rather, due process is not violated unless the hearing officer with prior knowledge of the underlying event allows this prior knowledge to improperly influence his decision or uses his prior knowledge as a basis for his decision as an alternative to evidence presented during the hearing (Appeal of Norwood, 31 Ed Dept Rep 464; Matter of Devore, 11 id. 296). In this case, the record contains no evidence that the hearing officer acted improperly or exhibited any bias. I, therefore, find no basis to conclude that the hearing officer was biased and that petitioner's son's due process rights were violated.

The decision to suspend a student from school must be based on competent and substantial evidence that the student participated in the objectionable conduct (Appeal of Kittell, 31 Ed Dept Rep 419; Appeal of Ezard, 29 id. 135; Appeal of Chapman, 28 id. 272). The hearing officer's decision was clearly based on testimony that was properly adduced at the hearing. The hearing officer specifically concluded that a teacher's testimony that the student showed the teacher a loaded handgun, when corroborated by the dean of students' testimony that the student informed the dean that he no longer had the gun in his possession, was sufficient to sustain the charge. Accordingly, the record contains both competent and substantial evidence that petitioner's son possessed a loaded handgun on school grounds. Therefore, he was correctly suspended on that basis.

The petitioner also argues that Kirk's equal protection rights have been violated. Specifically, petitioner argues that high school students in respondent's schools are provided with additional protection in the appointment of impartial hearing officers, because only individuals without prior knowledge of the facts at issue are appointed to act as hearing officers. Petitioner argues that the equal protection rights of junior high school students are violated when they are not given the same treatment as high school students on this issue. An appeal brought under Education Law '310 is not the proper forum to decide novel questions of constitutional law (Appeal of Sewanhaka Central High School District and Goldstein, 31 Ed Dept Rep 360; Appeal of St. Cyr, 27 id. 351; Matter of Curtin, 20 id. 473).

I have reviewed petitioner's other claims and find them without merit.