Matter of B.W. and Charter School for Applied Technologies

IN THE MATTER

OF

THE COMPLAINT OF B***** W***** CONCERNING THE CHARTER SCHOOL FOR APPLIED TECHNOLOGIES

 

 

     DECISION

 

________________________________

Education Law §2855(4) provides that any individual or group may bring a complaint to a charter school’s board of trustees alleging a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  If the complainant subsequently determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, the complainant may present the complaint to the Board of Regents, which shall investigate and respond, and, if necessary, will issue appropriate remedial orders.  Section 3.16 of the Rules of the Board of Regents (8 NYCRR §3.16) delegates to the Commissioner of Education the authority to receive, investigate, and respond to such complaints, and to issue appropriate remedial orders pursuant to Education Law §2855(4).  This decision is issued pursuant to that authority.

The record indicates that B***** W***** (“complainant”) complains on behalf of, and with the permission of, Debora Freeland, the guardian of a student who attended the Charter School for Applied Technologies (“CSAT” or “the school”).  Complainant submitted an Education Law §2855(4) complaint to the school’s board of trustees (“the board”) alleging that the student was improperly suspended for skipping class.  After the board informed complainant that it found “no basis to grant [the] appeal,” complainant submitted the complaint to the Board of Regents (“Regents”), the school’s authorizer.  Complainant seeks the expungement of the student’s entire disciplinary record.

The record indicates that the school claims that, on February 10, 2017, the student was found in the school’s gymnasium, allegedly attempting to skip class.  The school sent written notice to the student’s home, informing the guardian that the student was being given Saturday detention for his conduct.  When the student failed to attend, the one-day Saturday detention was rescheduled twice.  The student also failed to attend on each of the rescheduled occasions.  By written notice dated March 27, 2017, the principal notified the guardian that the student would be suspended for one day, on March 28, 2017, for skipping the Saturday detention.

The school’s charter makes the procedures of Education Law §3214(3) applicable to its short-term student suspensions, including the provisions relating to notice and an opportunity for an informal conference at which the parent may question complaining witnesses.  According to the requirements of Education Law §3214(3), 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]; CSAT Code of Conduct [“CSAT Code”], Art. XI; Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of F.W., 48 id. 399, Decision No. 15,897; Appeal of F.M., 48 id. 244, Decision No. 15,849).  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]; CSAT Code, Art. XI).

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]; CSAT Code, Art. XI).  Commissioner’s decisions have repeatedly held that sending the written notice by regular mail does not satisfy such requirement(see e.g. Appeal of a Student with a Disability, 50 Ed Dept Rep, Decision No. 16,170; Appeal of a Student with a Disability, 47 id. 19, Decision No. 15,608).

Where possible, notification shall also be provided by telephone (8 NYCRR §100.2[1][4]; CSAT Code, Art. XI).  Oral communication with a parent regarding a suspension is not, however, a substitute for the required written notification (Appeal of T.M., 57 Ed Dept Rep, Decision No. 17,309; Appeal of J.Z., 47 id. 243, Decision No. 15,681).

On this record, I find that the written notice was defective because it did not apprise the guardian of her right to question complaining witnesses at the informal conference, as required by Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4) (see Appeal of a Student with a Disability, 58 Ed Dept Rep, Decision No. 17,616; Appeal of T.M., 57 id., Decision No. 17,309; Appeal of S.K., 56 id., Decision No. 17,031).  In addition to violating Education Law §3214(3)(b)(1) and 8 NYCRR §100.2(l)(4), the school’s failure to inform the guardian of her right to question witnesses at the informal conference violated Article XI of the CSAT Code, which is part of the school’s charter.  Based upon this deficiency in the written notice, the student’s one-day suspension must be expunged from the student’s record (Appeal of S.K., 56 Ed Dept Rep, Decision No. 17,031; Appeal of a Student with a Disability, 45 id. 531, Decision No. 15,406).

There is no proof in the record that the guardian was afforded an opportunity for an informal conference and apprised of her right to question complaining witnesses prior to commencement of the student’s suspension.  There also is no basis for finding that the student’s presence in the school posed a continuing danger to persons or property or an ongoing threat of disruption to the academic process.  I recognize that the record indicates that, prior to the suspension, there were several conversations with complainant and the guardian that the school characterizes as “informal hearings.”  However, as indicated above, telephone conversations do not satisfy the written notice requirement.  Accordingly, there is nothing in the record to indicate that the guardian and the student were apprised of, or afforded, their right to an informal conference prior to the suspension.  Therefore, the short-term suspension must be expunged on that basis as well (see e.g. Appeal of T.H., 56 Ed Dept Rep, Decision No. 17,049; Appeal of G.B., 50 id., Decision No. 16,218).

To the extent complainant seeks expungement of the remainder of the student’s disciplinary record, Education Law §2855(4) provides, in pertinent part, that “[a]ny individual or group may bring a complaint to the board of trustees of a charter school alleging a violation of the provisions of this Article, the charter, or any other provision of law relating to the management or operation of the charter school” (emphasis added).  Complainant’s letter to the Regents does not identify any provision of the Charter Schools Act (i.e. Article 56 of the Education Law) or other provision of law relating to the management or operation of the school that was allegedly violated regarding the portions of the student’s disciplinary record that are unrelated to the March 28, 2017 one-day suspension.  Similarly, the complaint fails to identify any provision of the school’s charter which the school’s actions allegedly violated.  Complainant’s letters to the board and to the Regents address only the factual circumstances giving rise to the one-day suspension on March 28, 2017.  Therefore, regarding complainant’s general request for the student’s entire disciplinary record to be expunged, because the complaint fails to allege violations of Article 56 of the Education Law, the school’s charter, or any other provision of law relating to the school’s management or operation, the complaint must be dismissed.

 

In light of this disposition, I need not address the parties’ remaining contentions.

 

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that the Board of Trustees of the Charter School for Applied Technologies annul and expunge from the student’s record all references to the student’s short-term suspension on March 28, 2017.

 

IN WITNESS WHEREOF, I, MaryEllen Elia, Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this                       day of           2019.

 

 

Commissioner of Education