Decision No. 13,621

(June 12, 1996)

D'Andrea and Goldstein, Esqs., attorneys for respondent, Vincent P. D'Andrea, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals her grandson's suspension by the Board of Education of the City School District of the City of Mount Vernon ("respondent"). The appeal must be dismissed.

On October 17, 1995, petitioner's grandson, William, struck a security monitor in the mouth with his fist while the monitor was scanning him with a hand held scanner. William alleges that he was sexually assaulted by the security monitor's use of the hand held scanner near his pelvic area. The police were notified and William was escorted from school in handcuffs. He was immediately suspended.

A hearing on the incident was originally scheduled for October 24, 1995, but was adjourned. The parties dispute whether the adjournment was by mutual consent. By letter dated October 25, 1995, respondent notified petitioner that William would be readmitted to school on October 26, 1995. On October 27, 1995, a hearing was held at which petitioner and William's mother were present. William did not attend the hearing and petitioner waived her right to have him present.

At the hearing, the security monitor testified that William struck him without provocation and that he sustained injuries to his lip and mouth which caused him to miss work. Another security monitor also testified that he saw William strike the security monitor in the mouth. The vice principal also testified that William admitted striking the security monitor. Petitioner contends that she attempted to inform school officials and the hearing officer that William was sexually assaulted and sexually intimidated by the security monitor. The hearing officer found that William had committed the assault and recommended that William be removed from the school setting and placed on home instruction for the rest of the school year due to the seriousness of the incident. The superintendent adopted the hearing officer's recommendations. Respondent board affirmed at a meeting on January 5, 1996. This appeal ensued. On February 16, 1996, I denied petitioner's request for interim relief pending a determination on the merits.

Petitioner alleges that the security monitor sexually assaulted her grandson, thereby provoking the attack. She also alleges that the notice of suspension was defective because it was signed by the vice principal and not the principal. She further claims that the hearing was not timely, that the hearing officer was biased because he was a school employee and that no verbatim transcript was made. She also alleges that the home instruction program made available to William is inadequate and seeks his return to school. Finally, petitioner alleges that respondent's actions are racially motivated, that William's civil rights have been violated and that respondent discriminates against minority children.

Respondent contends that William committed the act with which he was charged and that the hearing officer properly found him guilty. Respondent also contends that its procedures regarding the notice of suspension were correct and that the hearing was fair. Respondent further contends that it has repeatedly offered home instruction to William and that petitioner has repeatedly refused it. Finally, respondent raises a number of procedural objections, including that the petition fails to state a clear and concise claim, that the petitioner has not met her burden of proof, that the petition fails to state a cause of action and that the Commissioner of Education has no jurisdiction to address petitioner's constitutional claims.

Petitioner fails to meet her burden of proof. In an appeal to the Commissioner of Education, the petitioner bears the burden of establishing the facts upon which relief is sought (Appeal of PS 7/IS 171 Environmental Improvement Committee, 34 Ed Dept Rep 297; Appeal of Lemley, 33 id. 706; Appeal of Cauley, 33 id. 359; Appeal of Singh, 30 id. 284). In this case, petitioner seeks to have William's suspension overturned. However, she offers only an affidavit in which William claims the assault was justified. In the absence of any other evidence, this affidavit is insufficient to prove petitioner's assertion that the suspension was unjustified and should be overturned. Therefore, the appeal must be dismissed.

The record indicates that the security monitor testified that he was assaulted and the vice principal stated that William admitted that he struck the monitor. The hearing officer heard all of the witnesses and the evidence presented and found that William assaulted the security officer and that the assault was unprovoked, vicious, committed with intent to injure and resulted in serious injury to the security monitor. There is no basis in the record to support petitioner's contention that a sexual assault occurred.

Furthermore, I have reviewed the record in this case and I find no basis for petitioner's claims that her grandson did not receive the process he was due under Education Law '3214. Petitioner was notified of the hearing, a hearing officer provided both petitioner and respondent with an opportunity to present evidence and to question and present the testimony of witnesses at the hearing, a verbatim transcript of the hearing was made and respondent's superintendent and respondent ratified the hearing officer's findings. Based on the record before me, there is no basis to overturn the suspension imposed.

Petitioner also alleges that the home instruction provided to her grandson was inadequate. Education Law '3214(3)(c) requires that a student of compulsory school age who is suspended from school receive alternative instruction. However, whether a program offers substantially equivalent instruction must be decided on a case-by-case basis (Appeal of Henry, 34 Ed Dept Rep 470; Appeal of Dloniak, 33 id. 717; Appeal of Forster, 31 id. 443; Matter of Malpica, 20 id. 365). Since William is of compulsory school age, respondent is required to provide him with alternative instruction. Petitioner makes conclusory statements that the alternative instructional program offered to William is inadequate. She states that the instructors of the program are not certified teachers and teach only basic subjects. Respondent does not address petitioner's contentions regarding the adequacy of its alternative instructional program and instead only states that it has offered alternative instruction to petitioner and she has repeatedly refused it. Since the record in this case is incomplete regarding the alternative instruction respondent has offered William, I am unable to determine its adequacy. However, I remind respondent of its obligation to provide William with substantially equivalent alternative instruction for the duration of his suspension from school while he is a student of compulsory school age.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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