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Decision No. 16,238

Appeal of M.W. and L.W., on behalf of their son L.W., from action of the Board of Education of the City School District of the City of Long Beach regarding student discipline.

Decision No. 16,238

(June 3, 2011)

Leeds Morelli & Brown, P.C., attorneys for petitioners, Jeffrey K. Brown and Isaac Evan Samuels, Esqs., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Joseph E. Madsen, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Long Beach (“respondent”) to suspend their son from school.  The appeal must be dismissed.

Petitioners’ son, L.W., was an eighth-grade student in respondent’s schools during the 2010-2011 school year.  The record indicates that L.W. has had a history of difficult interaction with a female classmate (“the student”) dating back to the 2009-2010 school year.  As the result of a September 2010 disciplinary matter, the principal instructed L.W. to refrain from any form of contact with the student.

During his English class on October 19, 2010, L.W.’s teacher (“the teacher”) confiscated a note that L.W. had been reading (“the note”).  Although written in Russian, the note contained the names of the principal and the student in English.  The teacher gave the note to the principal, who sent it to the local Board of Cooperative Educational Services (“BOCES”) for translation into English.  The note, which was signed by “Commandant [L.W.],” stated that the principal and the student’s family “will pay for this” and made reference to locking them “in a new gulag.”

By letter dated October 22, 2010, the superintendent informed petitioners that a disciplinary hearing would be held to consider the following charges against L.W.:

Engaging in conduct which endangered the safety, morals, health or welfare of others in that on October 19, 2010, [L.W.]:

  • Harassed another student, including, but not limited to, sexual harassment, which includes a sufficiently severe action or a persistent, pervasive pattern of actions or statements directed at an identifiable individual or group which are intended to be or which a reasonable person would perceive as ridiculing or demeaning.

Engaging in conduct that is insubordinate in that on October 19, 2010, [L.W.]:

  • Failed to comply with the reasonable directions of teachers, school administrators or other school employees in charge of students or otherwise demonstrating disrespect.

The hearing was held on November 3, 2010 and included testimony from the principal, the BOCES employee who translated the note, the teacher, L.W., and L.W.’s mother.  L.W. testified that he typed the note using a school computer on October 1, 2010.  L.W. explained that he wrote the note “[b]ecause [I] was assigned or told not to talk to or about the student, which I didn’t.  I just wanted to write about her just to get it off my mind.”  L.W. testified that he believed the principal and the student’s family told “lies,” “blamed everything on” L.W., and “were not owning up to the responsibility that they needed to.” L.W. further explained that he wrote the note in English and used the computer to translate it into Russian so that “nobody could read it.”

In addition to testimony regarding the November 2010 suspension, the principal, L.W. and L.W.’s mother testified to L.W.’s history of difficulties with the student.  For example, L.W. claimed that the student made anti-Semitic remarks, rolled her eyes and made faces at him.  The hearing testimony also reflects that, in September 2010, L.W. received a one-day suspension for delivering a note to a teacher.  Specifically, L.W. testified that he found a typewritten note on his desk, purportedly written by the student’s mother, asking that the student be assigned to sit near L.W. in class.  While L.W. did not admit to writing the typewritten portion of the note, he did admit to adding a handwritten statement asking the teacher to “sit [L.W. and the student] away from [another student].  They don’t get along.”  When questioned by the principal about the note, L.W. also produced a photograph of the student with, among other things, swastikas drawn on her forehead and neck.  L.W. explained that he had found the photograph taped to his locker and that he added the handwritten statement to the note because he “wanted to deal with [the situation] on [his] own and try to see if [the student] did this.”

In a letter dated November 4, 2010, the hearing officer found L.W. guilty of the charges and recommended that he be suspended for the remainder of the 2010-2011 school year.  By letter dated November 5, 2010, the superintendent informed petitioners that he adopted the recommendations of the hearing officer.  In a December 3, 2010 letter, petitioners appealed the superintendent’s decision to respondent, which upheld the decision by letter dated January 14, 2011.  In this letter, petitioners were also notified that, “upon receipt of an independent psychiatric evaluation ... from one of the specialists included on a list previously provided to you, the Superintendent of Schools will revisit the suspension issued.”  This appeal ensued.  Petitioners’ request for interim relief was denied on February 28, 2011.  The record indicates that, based on the results of a psychological evaluation (“evaluation”), L.W. was permitted to return to school on or about March 14, 2011.

Although the petition is not entirely clear, petitioners appear to argue that the record does not support a finding that L.W. engaged in the conduct charged and, in the alternative, that the penalty was excessive.  Petitioners allege that L.W. has been treated unfairly by the principal and has been the victim of bullying and anti-Semitism by the student and that L.W. wrote the note as “an expression of frustration” with such treatment.  Petitioners assert that the note was “clearly a fantasy with no application to the reality of [L.W.’s] situation and it was certainly never intended for publication or distribution.”  Petitioners also object to the instruction provided to L.W. during his suspension and complain that the student was not disciplined for her conduct in relation to L.W.  Finally, petitioners argue that respondent failed to provide the transcript from the disciplinary hearing until November 30, 2010.  Petitioners seek expungement of L.W.’s records and a determination permitting him to resume “regular attendance pursuant to his original schedule, including band.”

Respondent argues, interalia, that petitioners have failed to carry their burden of proof and that the appeal must be dismissed as moot.  Respondent maintains that the decision to suspend L.W. was based on competent and substantial evidence and that the penalty imposed was not excessive.

Initially, I must address several procedural matters.  By letter dated February 25, 2011, petitioners requested that I consider L.W.’s psychological evaluation report (“the report”).  According to the report, the evaluation was conducted over three days and concluded on February 17, 2011 – two days after petitioners commenced this appeal.  As an affirmative defense, respondent urges that I reject such submission.  The burden is on respondent to establish its affirmative defense (seeAppeal of Stanzione, 47 Ed Dept Rep 341, Decision No. 15,718; Appeal of Mogel, 41 id. 127, Decision No. 14,636).  However, respondent has not identified any reason(s) or provided any evidence to support its position that such report should be rejected.  Accordingly, I have accepted the report as an additional submission pursuant to 8 NYCRR §275.8(b) and considered it in rendering this decision.

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.

Together with its memorandum of law, respondent has submitted an affidavit from the superintendent which appears to respond to petitioners’ reply.  The Commissioner, in his discretion, may permit the service and filing of additional affidavits, exhibits and other supporting papers upon good cause shown (see 8 NYCRR §276.5).  Petitioners do not object to such submission and I find that portions of the superintendent’s affidavit are responsive to new material properly contained in petitioner’s reply.  Accordingly, I have considered such portions of the superintendent’s affidavit.

Petitioners request a determination “permitting [L.W.] to immediately resume regular attendance pursuant to his original schedule, including band, at Long Beach Middle School.”  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).  To the extent that L.W. was permitted to return to school on or about March 14, 2011, the appeal must be dismissed as moot.  However, the record also indicates that L.W. has not been allowed to resume participation in band class.  Therefore, to the extent petitioners seek L.W.’s reinstatement to band class, the appeal is not moot.  The appeal is also not moot to the extent petitioners seek expungement of L.W.’s record.

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).  While petitioners’ appeal is based on respondent’s January 2011 decision affirming L.W.’s suspension, throughout their pleadings, petitioners also complain of several incidents that predate such decision, including L.W.’s exclusion from band class after his September 2010 suspension.  With respect to L.W.’s schedule, the superintendent explains in his affidavit that when L.W. returned to school after his September 2011 suspension, he was assigned to a modified class schedule (“modified schedule”) that separated him from the student.  The superintendent further explains that L.W. was permitted to return to school in March 2011 pursuant to the modified schedule and that “[g]iven the facts and circumstances, it is appropriate that [L.W.] remain in classes separated from the female student....”  Accordingly, to the extent that petitioners object to and/or seek relief for conduct by respondent that occurred more than 30 days prior to the commencement of this appeal – including L.W.’s modified class schedule – their claims are dismissed as untimely.

Petitioners also maintain that, “despite [their] repeated requests,” respondent failed to provide them with a written transcript of the hearing until November 30, 2010.  Respondent asserts that “upon receipt of the transcript, [its attorney] immediately mailed a courtesy copy of the transcript to [petitioners’] counsel.”  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Other than their conclusory allegation, petitioners provide no support for their position, nor do they allege that they were in any way prejudiced by the timing of such receipt.  Indeed, the record indicates that the hearing was held on November 3, 2010 and that petitioners appealed the superintendent’s decision to respondent by letter dated December 3, 2010.  Based on the record before me, I conclude that petitioners have failed to carry their burden of establishing that respondent’s conduct in this respect was in any way improper.

Turning to 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., 293 AD2d 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).

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).

In this case, L.W. was charged with harassment and insubordination for his conduct regarding the note.  While petitioners concede that the note was “inappropriate and ill-conceived,” they appear to contend that, because L.W. did not intend for anyone to read the note or to threaten the student, her family or the principal, he is being punished for merely expressing his private thoughts on paper.  Petitioners argue that there is no basis for finding L.W. guilty of the charges, and, in the alternative, that the punishment imposed was excessive.

It is undisputed that L.W. wrote the note during the school day using a school computer.  Further, L.W. admitted that he took the note from his pocket and read it during his English class, where it was confiscated by a teacher.  Translated into English, the note contains disturbing phrases such as “I did [sic] with this crap” in reference to the principal’s and the student’s family’s perceived conduct, references L.W.’s interest in having his “bodyguards ... receive delegations” from him, and states that L.W. is “ready to lack [sic] up all of them in a new gulag.”  As noted above, the note was signed “Commandant [L.W.].”  While written in Russian, the names of the student, with whom L.W. has had a history of difficult interactions, and the principal were written in English.  The record also reflects that L.W. had previously been instructed by the principal not to contact the student in any way.

Moreover, petitioners’ assertion that the note “fell out” of L.W.’s pocket during his English class is belied by the testimony of both L.W. and his teacher.  Specifically, the teacher testified that, on October 19, 2010, as she walked around the classroom to ensure that students were working on the proper assignment, she observed L.W. with “a piece of paper in his hand that he was looking at.  It was not the paper that I had handed out....  And I took the piece of paper and gave him my assignment to work on.”  As noted above, L.W. explained that he found the note in his pocket when he checked to make sure that he had his lunch money.  L.W. stated, “I took out the note and the kid sitting next to me said, ‘What is that?’  And then my teacher came over and grabbed it out of my hand.”  According to L.W., he had forgotten that the note was in his pocket and, after he found it, he was “waiting till the end of the period to just simply throw it away.”

While L.W. testified that he did not intend for anyone to read the note or to harass, threaten, ridicule or demean anyone, he nonetheless took the note from his pocket and read it during class at a time when he should have been doing his work and participating in class.  It was not unreasonable or surprising that his teacher and/or other students would see and/or take the note and notice that the student’s and the principal’s names were contained therein (seeAppeal of James B., 32 Ed Dept Rep 637, Decision No. 12,940 [10-day suspension upheld where student wrote a note during class that referred to teacher and contained profanities and sexually explicit language; Commissioner rejected petitioner’s argument that student did not intend the note to be read]).  Accordingly, the record supports a determination that L.W. was guilty of the conduct charged (seeAppeal of James B., 32 Ed Dept Rep 637, Decision No. 12,940).

In cases of student discipline, the sanction imposed must be proportionate to the severity of the offense involved.  The test to be applied in reviewing a penalty is whether it is so excessive as to warrant substitution of the Commissioner’s judgment for that of the board of education (Appeal of B.M., 48 Ed Dept Rep 441, Decision No. 15,909; Appeal of F.W., 48 id. 399, Decision No. 15,897).  While L.W. was initially suspended for the remainder of the 2010-2011 school year, respondent permitted him to return to school in March 2011.  Pursuant to respondent’s code of conduct (“code”), discipline will be progressive, as a general rule, and several factors will be considered in determining the penalty, including: the student’s age, the nature of the offense and the circumstances that led to the offense, the student’s prior disciplinary record, and the effectiveness of other forms of discipline.

In her decision, the hearing officer noted that L.W.’s “records were entered into the record ... [and included] a few incidents of insubordination but nothing of any importance to the hearing except the most recent incidents” (emphasis added).  Indeed, L.W.’s anecdotal record contains several disciplinary actions in the weeks immediately preceding the suspension at issue in this case.  During September and October 2010, L.W. was disciplined for pushing another student, insubordination, falsifying a document and being disrespectful.  The record reflects that at least two of these incidents may have some nexus to L.W.’s difficult history with the student.  As noted above, the code authorizes long-term suspensions from school for code violations, and “a student’s first violation will usually merit a lighter penalty than subsequent violations.”  This was not L.W.’s first code violation.  Under these circumstances, I find that the four-and-one-half-month suspension served by L.W. is sufficient to impress upon him the seriousness of his actions and I find no basis upon which to overturn respondent’s determination.

I must also address petitioners’ allegation that respondent failed to discipline the student with whom L.W. has had difficulties.  The record indicates that the student was not involved in the conduct leading to the suspension at issue in this appeal.  Nevertheless, I note that the fact that another student who was involved in an incident may have received a lesser penalty, or no disciplinary measures at all, does not, of itself, provide a basis for nullifying the discipline imposed upon a student, provided that, as here, the record establishes that the student engaged in the misconduct and the penalty imposed is appropriate (seeAppeal of R.Y., 49 Ed Dept Rep 336, Decision No. 16,046).

Finally, the issue of the adequacy of L.W.’s alternative education is moot because the suspension period has ended (seeAppeal of D.F.B., 43 Ed Dept Rep 496, Decision No. 15,064).  However, even if such claim were not dismissed as moot, it would be dismissed on the merits.  Alternative instruction must be substantially equivalent to that received by the student prior to the suspension and equivalency will be determined on a case-by-case basis (Appeal of a Student with a Disability, 48 Ed Dept Rep 154, Decision No. 15,823; Appeal of D.F.B., 43 id. 496, Decision No. 15,064; Appeal of Deborah F., 42 id. 178, Decision No. 14,813).  Previous Commissioner’s decisions have found that two hours per day of alternative instruction may fulfill a district’s obligation under the Education Law (seee.g.Appeal of a Student with a Disability, 48 Ed Dept Rep 154, Decision No. 15,823).  Petitioners admit that L.W. was provided with 10 hours per week of home instruction in the “core subjects.”  Moreover, other than their conclusory allegations that “approximately half” of L.W.’s alternative instructional time “is spent taking makeup exams which [L.W.] must prepare for on his own,” petitioners have failed to provide any proof that L.W. was not provided with adequate alternative education.