Appeal of A STUDENT WITH A DISABILITY, by his parent, from action of Joel Klein, as Chancellor of the New York City Department of Education regarding student discipline.

Decision No. 15,798

  (July 30, 2008)

DLA Piper US LLP, attorneys for petitioner, James P. Duffy IV and Stacey E. Young, Esqs., of counsel

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

MILLS, Commissioner.--Petitioner challenges the decision of Joel Klein, Chancellor of the New York City Department of Education (“respondent”), to suspend her son.  The appeal must be sustained in part.

During the 2006-2007 school year, petitioner’s son was eleven years old and attended sixth grade at respondent’s P.S. 181.  On February 28, 2007, he was involved in an incident wherein he allegedly grabbed a female school safety aide about her collar/neck.  A notice dated March 2, 2007, informed petitioner that her son was suspended as of March 5, 2007 for his behavior during the incident that was alleged to constitute a danger to the health, safety, welfare and morals of himself and others at the school.  The notice advised petitioner that her son would receive instruction at P.S. 173 during the suspension and that a superintendent’s hearing would be held on March 9, 2007.  The hearing was adjourned at petitioner’s request until March 22, 2007.

Petitioner and her son were represented by counsel at the hearing.  The principal of P.S. 181 testified that she was alerted to a disturbance in the lobby of the school around dismissal time on February 28, 2007 and walked to the scene where she saw the school safety aide holding petitioner’s son against the wall by his shirt while a teacher held his hand.  The principal further testified that after the aide released him she put her arm around the student and walked him down the hall into her office where he wrote a statement describing the incident that was introduced into evidence at the hearing.  Four other sixth grade students who witnessed the incident also wrote statements that were introduced into evidence.  The teacher involved in the incident testified that she heard a commotion and walked over to where the school safety aide and petitioner’s son were grabbing each other.  The teacher testified that she tried to calm the student and asked him to take his hands off the aide’s shirt.

The school safety aide testified that she personally walked petitioner’s son and other students to the exit upon dismissal but that he re-entered the school building and disregarded her repeated directives to leave.  After warning him, she testified that she took him by his arm and escorted him toward the door but that he turned around, grabbed her shirt collar and pulled her tie off.  She then stated that she took him by his arm and placed him against the wall, asking him to let go of her shirt.  She stated that she released the student at the principal’s request and later handcuffed him in the principal’s office after being joined by her supervisor and two other security officers.

Petitioner testified that her son told her that he may have muttered something when asked to leave the building and grabbed the aide’s shirt because he almost lost his balance going down stairs.  Petitioner testified that her older son called her cell phone the afternoon of Wednesday, February 28, 2007, to inform her that the school called home requesting that she go there right away because her younger son was going to be arrested.  She testified further that when she arrived at the school with her older son, they met with the principal in her office where the school safety aide, three security officers and her handcuffed younger son were waiting.  She testified that the police arrived and released the student into her custody.  Petitioner testified that she sent her son to school the following Monday, March 5, 2007 and only learned that her son was suspended when his teacher told him to go to the office where a telephone call was made to his home. 

At the conclusion of the hearing on March 22, 2007, the hearing officer confirmed that petitioner’s son should continue reporting to P.S. 173 until a decision was issued but that the principal at P.S. 181 was asking for immediate reinstatement.  On March 23, 2007, the Region 3 Superintendent issued the hearing decision that found petitioner’s son guilty of the charge, sustained the suspension imposed on March 5, 2007, and ordered the student’s immediate reinstatement to P.S. 181.  Accordingly, the suspension was ended and the student was reinstated to P.S. 181 on March 23, 2007.  Petitioner appealed the hearing decision to respondent by letter dated May 24, 2007.  Respondent issued a decision denying the appeal on August 24, 2007.  This appeal ensued.

Petitioner contends that she did not receive notice of the suspension until March 5, 2007, after it had been imposed and that the notice lacked specificity.  Petitioner also contends that her son grabbed the school safety aide to protect himself, justifying his use of force.  Petitioner alleges that her son was not allowed to complete a written statement about the incident.  Petitioner also argues that respondent should have issued a decision on her appeal within 15 working days based on his own regulations.  Petitioner further argues that the hearing officer’s order that her son be reinstated to P.S. 181 rather than transferred to a different school was arbitrary and capricious.  Petitioner seeks an order directing respondent to annul the suspension, expunge all references from her son’s record, transfer her son to another school, and issue timely decisions.

Respondent denies that the notice of suspension lacked specificity and asserts that it amply described the conduct for which the suspension was proposed, including the information required by Chancellor’s Regulation A-443, i.e., the date, time and place of the behavior.  Respondent contends that competent and substantial evidence in the hearing record supports his decision to reject petitioner’s claim of self-defense.  Respondent argues that any delay in issuing the decision is irrelevant and resulted in no prejudice to petitioner because her son was reinstated immediately after the hearing on or about March 23, 2007.  Respondent further contends that petitioner’s claim regarding a transfer should be disregarded because it was not raised in her appeal below and asserts that the decision to transfer a student is solely within the discretion of the Superintendent.

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 R.F., 43 Ed Dept Rep 206, Decision No. 14,972). 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 R.M. and L.M., 44 Ed Dept Rep 218, Decision No. 15,154; Appeal of L.H., 43 id. 315, Decision No. 15,005; Appeal of M.F. and J.F., 43 id. 174, Decision No. 14,960).

 The written notice of a short-term suspension shall be provided by personal delivery, express mail delivery or equivalent means reasonably calculated to assure receipt of such notice within 24 hours of the decision to propose suspension  (8 NYCRR §100.2[l][4]).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy the regulation (seee.g.Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145).  Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of R.J. and D.J., 44 Ed Dept Rep 191, Decision No. 15,145; Appeal of R.F., 43 id. 206, Decision No. 14,972). 

In this case, petitioner met with the principal and the school safety aide on February 28, 2007, the day of incident, before the suspension was imposed.  However, the record indicates that the purpose of the meeting was to alert her that police had been called to the school and not to provide her with an opportunity to question the complaining witnesses against her son or to notify her that a suspension was being imposed.

Also, there is no showing here that the required written notification was given immediately and prior to the decision to suspend petitioner’s son.  The only written notice provided to petitioner was dated March 2, 2007 from the superintendent.  The hearing record indicates that petitioner received this written notice on March 5, 2007, the first day of suspension and respondent does not present evidence of the method or date of delivery that would refute petitioner’s claim.  Accordingly, the suspension imposed from March 5 to March 23, 2007 must be annulled and expunged from petitioner’s son’s record.

Petitioner’s request for a transfer however must be denied.  Initially, I note that petitioner did not raise the transfer issue in her appeal to respondent.  The record of the hearing indicates that petitioner’s son was receiving special education and includes no evidence regarding the appropriateness of programs at other schools or whether a transfer may have required convening respondent’s committee on special education (“CSE”).    Furthermore, a transfer to another school is not an authorized penalty in student discipline cases under Education Law §3214 (Appeal of K.B., 41 Ed Dept Rep 431, Decision No. 14,737; Appeal of a Student Suspected of Having a Disability, 40 id. 212, Decision No. 14,464, judgment granted dismissing petition to review, January 18, 2001, Sup. Ct., Albany Co., (Keegan J.), n.o.r; affd 293 AD2d 37).  Therefore, I find that petitioner has not met her burden of proving that it was illegal, arbitrary or capricious for the hearing officer to deny transfer and for respondent to reinstate the student rather than transfer him.

As no further suspension or other disciplinary action was imposed as a result of the superintendent’s hearing, I need not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent expunge from the student’s record any reference to the suspension that was imposed on March 5, 2007.

END OF FILE.