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Decision No. 16,083

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. 16,083

(June 30, 2010)

DLA Piper LLP (US), attorneys for petitioner, Anthony D. Gill, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Jill H. Braun, Esq., of counsel

STEINER, 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 dismissed.

During the 2006-2007 school year, petitioner’s son, a student with a disability, was 10 years old and attended a special education fifth grade class at respondent’s P.S. 160.  On the morning of December 6, 2007, he was involved in an incident on a school bus.  The bus matron reported to the teacher assigned to take bus attendance (“bus attendance teacher”) that petitioner’s son threatened student R.E. with a pair of scissors.  The guidance counselor took written statements from petitioner’s son and other students who were on the bus and then contacted petitioner.  The principal reviewed the written statements by the bus matron, petitioner’s son and student witnesses.  By letter dated December 18, 2007, petitioner was informed that her son was suspended for five days, effective December 19, 2007 and that a superintendent’s hearing would be held on January 3, 2008.  The hearing was adjourned to allow petitioner to obtain counsel and was held on January 17, 2008.  Witnesses included the principal of P.S. 160, the bus attendance teacher, and the bus matron.  Petitioner and her two sons attended the hearing with her attorney, but they did not testify and called no witnesses.

The bus matron testified that petitioner’s son was sitting in the back seat of the bus doing his homework when another student, R.E., starting laughing at him.  She stated that petitioner’s son reacted by standing up, cursing at R.E., and, with scissors in his raised fist said, “I’m going to stab you if you no stop.”  The bus matron testified that she stood between the students to separate them and confiscated the pair of scissors from petitioner’s son before moving the other student to a seat in the front of the bus where he remained until the bus arrived at P.S. 160.  The bus matron later testified that she confused the names of two students and that the student threatened by petitioner’s son was actually named B.M. and not R.E.

By letter dated January 30, 2008, petitioner was informed of the superintendent’s decision that sufficient evidence was presented at the hearing to find her son guilty of threatening to cut student B.M. with a pair of scissors, and not R.E. as originally stated in the charge.  The charge was sustained as modified and a 10-day superintendent’s suspension was imposed as already served, from December 19, 2007 until January 10, 2008.  Petitioner’s March 20, 2008 appeal to the Chancellor was denied on September 18, 2008.  This appeal ensued.

Petitioner contends that the finding of guilt was not supported by competent and substantial evidence because the charge originally named student R.E. and was later modified to substitute student B.M.  Petitioner also alleges that the indirect evidence of an investigation provided by the principal was insufficient because the guidance counselor who investigated the incident did not appear as a witness.  Petitioner also contends that the Chancellor erroneously determined that round-tipped scissors can be used as a dangerous weapon.  Petitioner also alleges that respondent failed to issue a timely decision as required by its Chancellor’s Regulation A-443 IV(B)(4).

Respondent contends that substantial and competent evidence to sustain the charge against petitioner’s son was produced at the hearing.  Respondent argues that there was no confusion or inconsistency in the bus matron’s testimony, or that of the other witnesses, that it was petitioner’s son who engaged in the threatening behavior with the scissors that was the subject of the investigation.  Respondent contends that petitioner received adequate notice that her son was charged with threatening another student on the bus with scissors and the misidentification of the victim did not render the notice deficient.  Respondent asserts that the principal’s testimony provided competent evidence that the charge was investigated and that she read all the documents in the guidance counselor’s report.  Respondent also argues that the 10-day suspension was proportionate to the severity of the offense and that the scissors became dangerous because petitioner’s son was using them as a weapon.  Respondent also argues that no harm resulted from any delay in issuing the Chancellor’s decision because the student was reinstated in January 2008, long before the March 30, 2008 appeal which impacts only whether the student’s record should be expunged.

Initially, I must address a procedural matter.  Petitioner submitted a reply to respondent’s answer.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

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 Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  Because the student’s suspension ended in January 2008, and he has been reinstated, the appeal is moot except to the extent that petitioner seeks expungement of the student’s records (Appeal of M.P., 44 Ed Dept Rep 132, Decision No. 15,123; Appeal of a Student with a Disability, 43 id. 372, Decision No. 15,021).

The charges in a student disciplinary proceeding need only be "sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing" (Bd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Education, et al., 91 NY2d 133; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536).  As long as students are given a fair opportunity to tell their side of the story and rebut the evidence against them, due process is served (Bd. of Educ. of Monticello Cent. School Dist. at 140).  Reasonable notice must provide the student with enough information to prepare an effective defense but need not particularize every single charge against a student (Bd. of Educ. of Monticello Cent. School Dist. at 139; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of H.B., 46 id. 369, Decision No. 15,536). 

Respondent provided notice that petitioner’s son was charged with threatening to cut student R.E. with a pair of scissors while on the school bus on December 6, 2007 at approximately 7:20 a.m.  The charge in this case specified the date, hour and location of the incident, as well as the implement used and the nature of the threat to the other student.  The only modification made to the charge was the name of the alleged student victim, as a result of testimony by the eyewitness at the hearing recognizing her mistake.  Petitioner was represented by counsel at the hearing, who declined to further question the witness after re-direct examination on this precise point by the hearing officer.  Neither did petitioner’s counsel request to see the student witness statements taken by the guidance counselor or to subpoena particular school witnesses.  The Chancellor found, in denying the student’s appeal, that notice is adequate if the charge against the student is “sufficiently specific” to advise the student of the activities which gave use to the discipline, and that this student was on notice that he was charged with threatening another student with scissors on the school bus on December 6, 2007, and that misidentification of the victim did not make the notice defective.  I concur that the notice provided sufficient specificity for petitioner to prepare and present an adequate defense.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  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., 293 AD2d 37; Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of A.W., 46 id. 367, Decision No. 15,535).  Hearsay evidence is admissible in administrative hearings and hearsay alone may constitute competent and substantial evidence (seeBd. of Educ. of Monticello Cent. School Dist. v. Commissioner of Educ., et al., 91 NY2d 133; Gray v. Adduci, 73 NY2d 741; Appeal of a Student with a Disability, 45 Ed Dept Rep 396, Decision No. 15,364).

Petitioner contends that the Chancellor erred in rejecting her arguments that evidence of the school’s investigation should be excluded because the guidance counselor who investigated the incident did not testify, that absent such evidence there was no proof that a proper investigation actually took place and, therefore, Chancellor’s Regulation A-443, which requires the school to investigate all incidents, was violated.  The Chancellor found that the witnesses at the hearing included an eyewitness to the incident and the first person to whom the eyewitness reported it, as well as the principal, who testified that she had seen the results of the guidance counselor’s investigation, including written statements he had collected.  The Chancellor noted the principal’s explanation that the guidance counselor did not testify because his role had been limited to collecting information that would be supplied first-hand by witnesses at the hearing and that petitioner could have requested to subpoena the guidance counselor but did not.  The Chancellor found ample evidence that an investigation took place and no evidence or allegations of any violation of petitioner’s procedural rights related to the investigation.  The Chancellor’s findings are supported by the record.  Moreover, while reference to an investigation was made by the principal at the hearing, no written statements were introduced at the hearing in lieu of live testimony.  Petitioner’s counsel cross-examined the eyewitness and other witnesses, upon whose testimony the hearing officer and Chancellor relied in making their determinations.  I therefore find that petitioner’s claims of procedural violations relating to the evidence of the investigations have no merit. 

Petitioner also makes a series of arguments contesting the finding of guilt.  The school’s principal and bus attendance teacher both testified regarding the incident report received from the bus matron including that they each were given the scissors she confiscated that day.  The principal testified that she received an investigation report by the guidance counselor.  Together with the eyewitness testimony of the bus monitor, the record made at the hearing is sufficient to uphold the Chancellor’s finding of guilt. 

I also find no merit to petitioner’s argument that the suspension should be expunged because respondent treated the blunt elementary scissors as a category two weapon under Chancellor’s Regulations III(B)(3)(a)(1).  Petitioner cites the principal’s testimony that the scissors were issued by the elementary school teacher and the school does not issue dangerous items to students (Transcript at pp 22-23).  Petitioner argues that the rounded scissors do not meet the definition of a category two weapon, i.e., “any deadly, dangerous or sharp-pointed instrument which can be used or is intended for use as a weapon (such as a scissors...).”  Petitioner’s argument is not persuasive, however, because as the Chancellor found, round-tipped scissors can still be used as a dangerous weapon, as the student threatened to do in this incident.

Petitioner also contends that the testimony of the bus monitor was inconsistent and contradictory relating to the identity of the alleged student victim and thus did not sustain the charge.  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 L.Z., 46 Ed Dept Rep 518, Decision No. 15,581; Appeal of L.F. and J.F., 46 id. 414, Decision No. 15,550; Appeal of P.D., 46 id. 50, Decision No. 14,438).

Although there was confusion expressed by the bus monitor over the initial identification of the student victim, she nevertheless testified that she stood between petitioner’s son and the other student whom he threatened with scissors, and that she confiscated the scissors.  The hearing officer found her to be a credible witness and I find no clear and convincing evidence that the determination of credibility is inconsistent with the facts.  

Therefore, on the record before me, I find that the superintendent’s determination Finally, delay in the issuance of the Chancellor’s decision beyond the time specified in the Chancellor’s Regulations is not a basis on which to sustain the appeal (Appeal of L.Z., 46 Ed Dept Rep 518, Decision No. 15,581).

I have considered petitioner’s remaining contentions and find them to be without merit.