Matter of C.V. and Kipp Academy Charter School

IN THE MATTER

of

THE COMPLAINT OF C.V., ON BEHALF OF HER SON A.D., CONCERNING KIPP ACADEMY CHARTER SCHOOL.

 

DECISION

 

________________________________

 

C.V. (“complainant”) brings this complaint pursuant to Education Law §2855(4) against the KIPP Academy Charter School (“KIPP”), a charter school chartered by the Chancellor of the City School District of the City of New York (“Chancellor”).  Complainant presented a complaint to both KIPP’s Board of Trustees and the Chancellor, and now presents this complaint to the Board of Regents.  Section 3.16 of the Rules of the Board of Regents (8 NYCRR §3.16) delegates to the Commissioner of Education the authority to respond to complaints brought pursuant to Education Law §2855(4) and issue appropriate remedial orders.  In accordance with that authority, I have reviewed the complaint and find that it must be dismissed.

KIPP is a charter school that serves 253 students in grades five through eight.  On or about January 31, 2006, KIPP’s superintendent expelled complainant’s son, who was in eighth grade, for allegedly violating the terms of a “final contract” implemented on March 9, 2005.  Specifically, KIPP alleges that on January 26, 2006, complainant’s son deliberately left the supervision of school staff and, along with another student (“student X”), lured a third student (“student Y”) into a stairwell so that students X and Y could fight.  According to KIPP, earlier that month, complainant’s son allegedly threatened to “crack” KIPP’s superintendent over the head, for which he received a five-day suspension.

Complainant, among other things, alleges that KIPP failed her son in a number of ways while he was enrolled at its school.  In addition, complainant challenges her son’s five-day suspension and his expulsion from KIPP, and alleges that KIPP failed to provide her son with timely alternative instruction.  The only relief requested by complainant is that I order KIPP to pay her son’s private school tuition.

In addition, by letters dated April 5 and 14, 2006 to the State Education Department (“Department”), complainant raises an issue that does not appear to have been considered by the Chancellor.  Specifically, complainant appears to assert that her son was suspected of having a disability at the time of the incidents and therefore could not legally be suspended or expelled without being accorded the rights of a student with a disability, pursuant to 20 U.S.C. §1415(k)(6) and 34 C.F.R. §300.534.  In the interests of justice and closure, I will address this issue even though it is not clear that petitioner raised it in her complaint to the Chancellor.

Pursuant to Federal Law, a public school is deemed to have knowledge that a child is a student with a disability for discipline purposes (and is thus entitled to the same procedural protections as a student with a disability) when, before the behavior that precipitated the disciplinary action, (1) the parent of the child expressed concern to school personnel (in writing) that the child is in need of special education, (2) the parent of the child requested that the child be evaluated for special education, or (3) a teacher of the child, or other personnel of the school, expressed specific concerns about a pattern of behavior demonstrated by the child directly to the director of special education or other supervisory personnel (see 34 CFR §300.534[b][1-3]).  Here, there is no evidence to suggest that petitioner had either requested an evaluation for special education or expressed a written concern to school personnel that her son had a disability prior to the behavior that precipitated his suspension and expulsion.  Further, while it appears from the record that concerns about a possible disability may have existed nearly three years prior to the incidents, complainant’s son underwent an educational evaluation at that time which did not conclude that he had a disability or recommend that he be referred for further evaluation.  Furthermore, there is nothing in the record to indicate that in the three years following the educational evaluation, any specific concerns about a pattern of behavior were raised by or to KIPP teachers or personnel.  Accordingly, I am unable to find on the record before me that when complainant’s son was suspended and expelled from KIPP, he was presumed to have a disability.

While complainant raises numerous issues concerning the actions of KIPP, her complaint essentially seeks money damages.  Education Law §2855(4) only authorizes charter entities and/or the Board of Regents to issue remedial orders to charter schools to correct alleged violations of law and/or a school’s charter relating to the management or operation of the charter school.  There is no provision for the awarding of money damages.  Accordingly, I lack authority to award the requested relief.

Moreover, only matters in actual controversy are the proper subject of a complaint against a charter school, and I will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.  During the course of investigating this matter, Department staff learned that complainant’s son was enrolled as a tenth grade student at another school.  Therefore, even if complainant had sought the reinstatement of her son to KIPP, such remedy would not be possible given the grade levels that KIPP serves.

Although I am constrained to dismiss the complaint, I must comment on two matters.

First, the Chancellor found that KIPP failed to follow the procedures outlined in its charter, requiring the disciplinary notice to include a description of the incident.  I remind KIPP of its obligation to adhere to the requirements of its charter in the future.

In addition, it appears that KIPP did not begin providing alternative instruction to complainant’s son until eight days after his expulsion from school.  Education Law §2854(1)(b) explicitly makes the compulsory education requirements in the Education Law applicable to charter schools.  One of these requirements is that, after a suspension or expulsion, “immediate steps” be taken for the provision of alternative instruction to students of compulsory attendance age (Education Law §3214[3][e]).  While the term "immediate" does not mean instantaneously, it does mean that a charter school should act reasonably promptly.  I remind KIPP of its obligation to promptly provide alternative instruction for suspended and/or expelled students.

 

THE COMPLAINT IS DISMISSED.

 

IN WITNESS WHEREOF, I, Richard P. Mills, 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                    , 2009.

 

Commissioner of Education