Matter of R.N. and A.S. and Urban Dove Team Charter School II
IN THE MATTER
OF
THE COMPLAINT OF R***** N***** AND A***** S***** CONCERNING THE URBAN DOVE TEAM CHARTER SCHOOL II
DECISION AND ORDER
________________________________
R***** N***** and A***** S***** (“complainants”), the parents of a student who attends the Urban Dove Team Charter School II (“the school”), filed a complaint regarding an April 24, 2019 decision of the school’s Board of Trustees (“board”) which permanently suspended their son (“the student”) from the school. The complaint must be sustained in part.
Education Law §2855(4) provides that any individual or group may bring to a charter school’s board of trustees a complaint which alleges 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. Thereafter, 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, he or she may present that complaint to the Board of Regents (“Regents”), which shall investigate, respond, and issue appropriate remedial orders. Section 3.16 of the Rules of the Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and to issue appropriate remedial orders.
The record indicates that, on December 7, 2018, the student recorded a video using the social media application, “Facebook Live,” that showed his location at an apparently off-site recreation center used by the school for physical education. During the video, an unidentified student (“unidentified student”) displayed a hand gesture. Complainants’ son responded by stating, “we’re not gunning ...,” and displayed an inverted version of the same hand gesture. (According to complainants’ son, he displayed the inverted symbol to indicate that he disagreed with the unidentified student’s action.) The unidentified student then stated — with respect to his display of the initial hand gesture — that he “[didn’t] know what [he] was thinking.” Complainants’ son responded by saying, “[the unidentified student] said, ‘I don’t know what I was thinking.’ That’s fucking great.” Complainants’ son also stated, allegedly with respect to gang affiliation, “I don’t get with that shit ....” Following this interaction, the student and another student engaged in teasing and roughhousing.
Shortly after the video was made, on or about December 10, 2018, a classmate of the student, who had viewed the video online, informed a school social worker of its existence and claimed that the video’s contents made the classmate uncomfortable. Based on this information, and after viewing the video, the school prepared a “Notice of Suspension and Recommendation for Expulsion” dated December 12, 2018 (the “notice”). The notice accused the student of violating section 3.12 of the school’s code of conduct, which prohibits “[g]ang-related behavior (apparel, graffiti, signs etc); recruiting for a gang.” As a result of this alleged violation, the notice stated that permanent suspension was being recommended. The notice informed the student and complainants of the student’s right to attend a hearing concerning the disciplinary charge and provided information on how to schedule alternative instruction. The notice further informed the student that he could not return to school or participate in any school activities until the conclusion of the hearing. Complainants allege that they did not receive this notice and were only informed of the disciplinary action by telephone several days later.[1]
The initial disciplinary hearing, presided over by a hearing officer, took place on January 14, 2019. The hearing officer found the student guilty of the charged conduct and recommended permanent suspension. This recommendation was subsequently adopted by the school leader. Thereafter, by letter dated March 1, 2019, complainants submitted a complaint pursuant to Education Law §2855(4) to the board. By letter dated March 20, 2019, the board vacated the student’s permanent suspension on procedural grounds, ordered that the student be readmitted to the school, and ordered a new hearing.
The second hearing took place on April 2, 2019, before a different hearing officer, who also found the student guilty of the charged conduct and recommended permanent suspension. By letter dated April 5, 2019, the school leader adopted the recommendation, and complainants submitted a new Education Law §2855(4) complaint to the school’s board by letter dated April 14, 2019. By letter dated April 24, 2019, the board rendered a decision upholding the permanent suspension. Complainants then submitted the instant complaint to the Regents. Complainants’ request for interim relief was granted on May 17, 2019.
Complainants allege, among other claims, that there were several procedural errors at the first and second hearings which violated the student’s right to due process; that the hearing officers were not impartial; that the second hearing was barred by res judicata; that the school’s disciplinary policy is flawed; that the school failed to follow its disciplinary policy; that the school applied its disciplinary policy in an arbitrary manner; and that the school did not prove the charge against the student. Complainants allege that, even assuming that the record supported a finding of guilt, the penalty imposed is disproportionate to the offense, and that the decision to permanently suspend the student was arbitrary and capricious. Complainants also allege that the they and/or the student were not notified as to the availability of alternative instruction for a period of time following the student’s initial suspension, and that the school improperly marked the student “absent” during such time. Complainants request that their son be permitted to return to the school; that his permanent suspension be expunged; that he be provided with an opportunity to complete missed work; that his attendance records be corrected; and that the school’s disciplinary policy and procedures be revised in accordance with the law.
Education Law §2854(1)(a) provides, in pertinent part, “[n]otwithstanding any provision of law to the contrary, to the extent that any provision of [the Charter School Act] is inconsistent with any other state or local law, rule or regulation, the provisions of this article shall govern and be controlling.” Education Law §2851(2)(h) specifies the requirements for discipline in a charter school. Charter schools are generally exempt from state and local laws governing student discipline, and, thus, are not required to comply with the discipline provisions set forth in Education Law §3214 (see Education Law §2854[1][b]). However, in this case, the school’s charter explicitly adopts the procedures of Education Law §3214(3) applicable to student suspensions. Therefore, the due process provisions of Education Law §3214 apply in this complaint.[2]
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 M.J., 57 Ed Dept Rep, Decision No. 17,292; Appeal of B.M., 48 id. 441, Decision No. 15,909).
For the reasons explained below, the student’s permanent suspension must be annulled and expunged, and the student must be re-admitted to the school.
First, the student’s anecdotal record was improperly introduced into evidence prior to any finding of guilt on the charge before the hearing officer. A student’s anecdotal record may be received in evidence at a disciplinary hearing and considered only after a finding of guilt as to specific charges in order to fix the penalty, and only if notice of its contents has been given in advance to the student (Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of T.S., 57 id., Decision No. 17,233; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562). In this case, the student denied the charge against him, and it was incumbent upon the school to prove the student’s guilt on the charge by competent and substantial evidence. As noted, at the beginning of the hearing, the student’s anecdotal record was entered into evidence prior to a finding of the student’s guilt. Counsel for the student objected to admission of the anecdotal record at that time but indicated that she had no objection to its admission during the penalty phase of the hearing. The hearing officer admitted the anecdotal record over counsel’s objection, reasoning that prior disciplinary incidents could be relevant to the charge “[i]f they are related to the incident that occurred,” or in “direct relation” to such incident. It appears that the hearing officer entertained the possibility that prior disciplinary incidents were relevant as to whether the student engaged in the charged conduct then before her. However, this is precisely why a student’s anecdotal record cannot be received during the guilt phase of any disciplinary hearing: the purpose of the anecdotal record is not to act as propensity or character evidence, but to inform a hearing officer or school official, upon a finding of guilt, as to what level of discipline might be appropriate under the circumstances. Introducing the anecdotal record before any finding of guilt on the charge is made compromises the impartiality of the hearing process in objectively assessing, without any preconceptions, whether a student, in fact, engaged in the conduct at issue.
There is no evidence in the record that the hearing officer separated the issue of the student’s guilt from the issue of whether his prior disciplinary infractions warranted a particular penalty, if found guilty of the charge. Indeed, the hearing officer’s recommendation consists of a single paragraph which states, in a conclusory manner, “that the recommendation for expulsion is warranted.” Under these circumstances, the premature introduction of the student’s anecdotal record was highly prejudicial and warrants annulment and expungement of the student’s suspension (Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of T.S., 57 id., Decision No. 17,233).
The permanent suspension must also be annulled and expunged because the school leader served both as a witness at the hearing and as the ultimate decision-maker of whether to accept the hearing officer’s recommendation. By its nature, the school leader’s determination whether to adopt the hearing officer’s recommendation relied on the leader’s assessment of the evidence adduced at the hearing, including credibility determinations regarding the witnesses called by the school and by the student. The school leader was one of three witnesses who testified on behalf of the school. Thus, the school leader had an inherent conflict of interest in serving as a fact witness and as the ultimate decision-maker. The Commissioner has stated that “[n]othing is more essential than a neutral hearing officer” (Matter of DeVore, 11 Ed Dept Rep 296, Decision No. 8,469; cf. Appeal of Dashe, 31 id. 195, Decision No. 12,617). I find that the school leader’s dual role as fact witness and as the ultimate decision-maker deprived the student of due process. I admonish the school to ensure that hearing officers (or, as in this instance, ultimate decision-makers) do not serve as fact witnesses in proceedings over which they preside and otherwise retain the requisite impartiality.
Additionally, the school failed to meet its burden of proving, by competent and substantial evidence, that the student engaged in gang-related behavior.[3] The evidence of gang-related behavior adduced at the hearing consisted of testimony that the student displayed a hand gesture which was not one of the three approved hand gestures at the school. There was no evidence that the student was a member of an organized gang, that the hand gesture was gang-related, or that the hand gesture was meant to promote a gang or to disparage another gang. Mere knowledge of gangs and gang symbols, or association with individuals who belong to a gang, does not automatically transform acts into “gang activity” (Appeal of Student with a Disability, 56 Ed Dept Rep, Decision No. 17,110; see Appeal of L.L., 48 id. 197, Decision No. 15,835).
At the hearing, the school presented three witnesses - a school social worker, the dean, and the school leader. None of these witnesses testified or otherwise proved that the student’s hand gesture was gang-related. I note in this respect that the record contains contradictory statements regarding who determined that the hand gesture was gang-related: while the dean asserted that the school leader determined that the hand gesture was gang-related (and the dean would not answer whether she, herself, had made such a determination), the school leader stated that it was the dean who made this determination. All three witnesses admitted that they lacked specialized knowledge or expertise on gang symbols or gestures (compare Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,408). Conversely, the student provided unrefuted testimony that his hand gesture was not gang-related and, in fact, was meant to disavow any such gang-related association. Therefore, I find on this record that the school failed to meet its burden of proving the student’s guilt as to the charge of “[g]ang-related behavior (apparel, graffiti, signs etc); recruiting for a gang.”[4]
Even had the record supposed a finding of guilt, the sanction imposed here was disproportionate to the severity of the offense involved. A permanent suspension is an extreme penalty that is generally educationally unsound except under extraordinary circumstances, such as where the student exhibits “an alarming disregard for the safety of others” and where it is necessary to safeguard the well-being of other students (Appeal of K.G., 51 Ed Dept Rep, Decision No. 16,262; Appeal of F.M., 48 id. 244, Decision No. 15,849; Appeal of L.T., 44 id. 89, Decision No. 15,107).
The student’s act of denying gang membership through a hand gesture here did not, on this record, evince an alarming disregard for the safety of others, warranting permanent suspension (see Appeal of Coleman, 41 Ed Dept Rep 101, Decision No. 14,628). Although the school asserts that the student engaged in other gang-related handshakes, those assertions were not proven or, to the extent they were contained in the student’s anecdotal record, were improperly considered during the guilt phase of the hearing as explained above. Thus, even if the school had proven that the student had engaged in the sole charged conduct and some penalty was appropriate, the penalty of permanent suspension is excessive and disproportionate to the conduct alleged.
Complainants also allege that the student’s record inaccurately states that he was “absent” from December 12, 2018, through January 9, 2019. Complainants allege that they did not receive notice of the student’s right to attend alternative instruction until on or about January 9, 2019, and that the student began attending alternative instruction since on or about January 10, 2019. The school contends that, on or about December 12, 2018, it apprised complainants of the availability of alternative instruction in a letter that was sent by certified mail, return receipt requested. However, since the school did not retain the return receipt for the mailing, there is no proof that this letter was sent.
Education Law §3214(3)(e) provides that where a student has been suspended, “immediate steps” shall be taken for his or her attendance upon instruction. The term “immediate” does not mean instantaneously, but it does mean that a school district must act promptly (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,297; Appeal of a Student with a Disability, 48 id. 154, Decision No. 15,823; Appeal of M.K. and S.K., 45 id. 424, Decision No 15,373).
I am constrained from granting complainants’ request to order the school to correct the student’s attendance records because the amendment of student records is governed by the federal Family Educational Rights and Privacy Act (“FERPA”) (20 USC §1232[g]) and its implementing regulations (see 34 CFR §§99.20, 99.21, 99.22). Specifically, 34 CFR §99.20 provides that a parent or eligible student who believes that a student’s record contains information that is inaccurate, misleading, or in violation of the student’s right to privacy may request that the school district amend the record and, if denied, may request a hearing pursuant to 99 CFR §§99.21 and 99.22. The Commissioner lacks jurisdiction to consider FERPA claims involving the accuracy of the contents of student records (Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508). The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 USC §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502). Although I lack jurisdiction to grant complainants’ requested relief, I remind the school to ensure that notice of alternative instruction is promptly provided to eligible students in the future; I also remind the school to ensure that it retains its records relating to this notice.
Finally, although not directly at issue in this complaint, I note that the school’s apparent prohibition on all but three approved hand gestures, irrespective of intent or the actual or threatened disruption to the school, raises concerns, as such prohibition may implicate students’ rights under the First Amendment. The school is hereby advised to review and revise, as necessary, its policies and procedures — subject to review and approval by its charter entity, the Regents — and to consider more clearly outlining its expectations in this respect.
In light of this disposition, I need not address complainants’ remaining contentions.
THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the Board of Trustees of the Urban Dove Team Charter School II annul and expunge from the student’s record all references to the student’s suspension related to his conduct on December 7, 2018; and it is further
ORDERED that the student shall be immediately admitted to attend Urban Dove Team Charter School II; and it is further
ORDERED that the school’s policies and procedures be revised in accordance with this decision; and it is further
ORDERED that, within 60 days of the date of this decision, the school shall submit to the New York State Education Department’s Charter School Office its policies, procedures, and guidelines for student discipline, as revised in accordance with this decision; its suspension notice templates; and its student/family contracts and compacts for review, and thereafter shall make any modifications to those documents and policies deemed necessary by the Board of Regents as its charter entity.
IN WITNESS WHEREOF, I, Elizabeth R. Berlin, Interim 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.
Interim Commissioner of Education
[1] The record also contains a copy of a letter dated January 9, 2019, which is identical to the December 12, 2018 notice, except that it reflects a rescheduled hearing date of January 14, 2019.
[2] Education Law §3214 sets forth differing due process requirements depending on whether a suspension is five days or less (short-term suspension) or six days or more (long-term suspension). Given the disposition of this appeal, I need not separately address the requirements for imposing a short-term versus a long-term suspension. I note, however, that the December 12, 2018 written notice did not apprise complainants of their rights to an informal conference with the principal (or school leader) or to question complaining witnesses. Thus, for purposes of a short-term suspension, the December 12, 2018 written notice was facially defective.
[3] While the school’s disciplinary notice letters to the student seem to charge him with infractions in addition to the hand gesture alleged to be gang-related (e.g., hitting another student and yelling at students about gang affiliations), these sub-charges appear to have been abandoned, as they were not addressed by the school at the hearing or in the decisions of the school leader or board. Accordingly, they have not been considered in this decision.
[4] It appears from the record that the student has been cited several times regarding similar hand gestures, although no discipline has been imposed. While those incidents are not before me, I caution the school that it cannot, consistent with this decision, impose discipline based upon a mere hand gesture alone without corroborating information regarding the actual nature of such gesture.