Matter of W.T. and D.W. and Harbor Science and Arts Charter School
IN THE MATTER
OF
THE COMPLAINT OF W.T. AND D.W., ON BEHALF OF THEIR SON D.W., CONCERNING THE HARBOR SCIENCE AND ARTS CHARTER SCHOOL
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 that complaint to the Board of Regents, which shall investigate and respond, and issue appropriate remedial orders. Section 3.16 of the Rules of the Board of Regents delegates to the Commissioner of Education the authority to receive, investigate , and respond to complaints, and issue appropriate remedial orders pursuant to Education Law §2855(4). This decision is issued pursuant to that authority.
W.T. and D.W. ("complainants") jointly submitted Education Law §2855(4) complaints to the Harbor Science and Arts Charter School ("Harbor Science" or "the school") board of trustees ("School Trustees") on behalf of their son ("the student"). After receiving a response from the School Trustees, complainants submitted a complaint to the school's charter entity, the Board of Trustees of the State University of New York ("SUNY '), and subsequently to the Board of Regents.1
Complainants appear to raise three primary concerns. First, complainants allege that Harbor Science failed to appropriately reprimand their son's teacher for what they describe as " bullying, harassing and intimidating " behavior toward their son. Complainants also allege that Harbor Science did riot sufficiently implement the Moderate Support Plan ("MSP") they proposed to address their son's behavior. Complainants further allege that Harbor Science failed to comply with the discipline policies and procedures outlined in the school's Student and Family Handbook (" Handbook").2
According to complainants, when their son was in the third grade at Harbor Science, he was "constantly being removed from his 3rd grade class and sent to the general office without any assignments or classroom instructions to support his learning." Complainants state that they made several complaints to the school regarding their son being removed from class and the school advised them that he was being removed because he was receiving "pink slips" 3 for disrupting class. According to complain ants, they instructed their son to keep a daily log in his journal about " what happens in class" so they could discuss it at home. Complainants state that their son was writing in his journal on February 24, 2014, when his classroom teacher tore a page out of the journal. In response to a complaint filed by complainants against their son's teacher, the school ' s principal indicated that with respect to the journal incident, the teacher was verbally reprimanded in complain ants' presence and, in addition, that there was an organizational reprimand by her.
Complainants state that they were concerned about their son being removed from class with no intervention to redirect inappropriate behavior. They developed the MSP and asked the school to implement it as a "proactive intervention tool" to, among other things, encourage positive behavior and to generate data so that an assessment could be made to determine if "the student needed to be evaluated for having a learning disability." It appears from the record that the school agreed to implement the MSP and there were meetings and communications between complainants and the school regarding the MSP over the course of the remainder of the school year.
Complainants also state that the school allowed pink slips to accumulate to justify "Principal Suspensions" and that the pink slips are incomplete. On May 5, 2014, the student was suspended. According to the letter4 notifying complainants of the suspension, their son was suspended for being insubordinate , defying or disobeying the lawful authority of the school personnel or school safety agents as he was hitting his head against the white board hanging on the wall in the office and refused to stop when asked to do so. The letter further indicated that complainants ' son punched and kicked the school safety officer when the school safety officer tried to restrain him from hurting himself. The letter noted that the school advised the student's father of the suspension in a telephone conversation the afternoon of May 5, 2014.
Complainants appealed the suspension and subsequently filed complaints with the School Trustees. In his response regarding " Official complaints and suspension appeal .. ." the chairman of the board indicated that he reviewed the complaint and appeal in conjunction with the School Trustees and he provided their assessment of the " major incidents in question." First , the School Trustees assessed the teacher's actions with respect to the student' s journal. The chairman of the board noted that a formal reprimand and an official letter was placed in the teacher' s file. He indicated that School Trustees were satisfied with how the principal addressed the situation. In addition, he indicated that the School Trustees did not find that the teacher "intimidated or abused" the student. With respect to the MSP, the chairman of the board noted that the school adopted a plan that was proposed by complainants to address their son' s behavior and indicated that such effort was " an unusual step that essentially allowed [the student] to exceed the limits of the school ' s pink slip policy.'" The School Trustees also found that the pink slip distribution and subsequent suspensions were warranted.
After receiving the response from the School Trustees, complainants submitted a complaint to SUNY. After its review of complainants ' submiss ion, SUNY found the school ' s actions with respect to the student's teacher to be sufficient. SUNY also determined that while the school did not implement the MSP developed by complainants, it would take no further action in that regard . SUNY indicated that the school was under no obligation to implement an alternative behavior plan and advised complainants that they could request an evaluation of their son to determine if he was a child with a disability . With respect to the student's May 2014 suspension, SUNY indicated that it would not disturb school disciplinary determinations unless sufficient evidence warrants such action, that it found no such evidence and that it would take no further action with respect to complainants' allegations that the pink slips were not warranted and their son's suspension should be vacated .5
In their complaint to the Board of Regents, complainants claim that the teacher' s behavior was unprofessional and violated Education Law §2854. They are requesting, among other things, that the school be directed to suspend the teacher. As noted above, the teacher was given a formal reprimand and an official letter was placed in his file as a consequence of the teacher' s action with respect to the student' s journal. While complainants may not agree with the extent of the school's reprimand , they do not identify which provision of the law or charter (Personnel Policy) the school allegedly violated in its determination to reprimand, rather than suspend, the teacher and there is no basis in the record for me to substitute my judgment for that of the school. Moreover, as I have indicated in appeals to the Commissioner of Education under Education Law §310, it is the board of education, rather than the Commissioner of Education, that has the authority to take disciplinary action against a school district employee (see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184; Appeal of Gonzalez, 48 id. 415, Decision No. 15,900) and I have no authority to discipline or reprimand school district employees. Similarly, an employee of a charter school is an employee of the education corporation formed to operate the charter school (see Education Law §2854[3]) and I have no authority to discipline or reprimand the teacher in the context of a complaint pursuant to Education Law §2855(4). Accordingly, the complaint must be dismissed as to this claim.
Complainants also assert that, despite agreeing to do so, the school failed to implement the MSP. As noted above, complainants asked the school to adopt the MSP that they had developed. The school agreed to implement the MSP and there were follow-·up meetings and communications between complain ants and the school regarding the MSP. While the school may not have implemented the MSP as envisioned by complainants, complainants do not, as SUNY indicated, identify any provision of law or the charter that requires the school to implement a behavior plan developed by a parent and the complaint must be dismissed as to this claim.
Although the complaint is not entirely clear, to the extent complainants assert that the school violated the student's "civil rights to receive special education services,"6 such claim must be dismissed. As noted by SUNY, "[i]n the absence of a 504 Plan or Individualized Education Program, [the school] is under no obligation to implement an alternative behavior program or behavioral intervention plan" for the student. The record in this appeal does not include a 504 Plan or an Individualized Education Program. Accordingly, on this record, the complaint must be dismissed as to this claim.
Complainants further assert that the school ' s practice with respect to pink slips and suspensions is a violation of the requirements of the school' s charter and Education Law Article 56 "to protect the civil rights of a student."7 Charter schools are required to adopt rules and procedures by which students may be disciplined (see Education Law §2851 [2][h]). These rules and procedures (which become the school' s disciplinary code) are a part of the charter school' s charter, and must be consistent with the requirements of ·due process and wfrh· federal laws and regulations governing the placement of students with disabilities.8
With respect to the issuance of student removal forms, the Handbook provides
If a teacher deems it necessary to remove a student from the classroom, it is the teacher's responsibility to contact the parent of the removed child before leaving school at the end of the day, and inform the parent ... that their child was removed from their class today, and state the reasons why it was necessary to remove their child from the class.
When a student is removed from the classroom, _ the teacher completes a "Student Removal Form" (often referred to as a "pink slip" due to the color of the form), and sends the child to the Dean of Students . .. in the office, who ensures that the student writes down his/her account of the circumstances, and enters the student's removal into his records. The student is expected to complete the assignment given to him/her by the teacher in the office with [the Dean of Students] or his designee.
Complainants allege that the school failed to complete the student removal forms related to their son' s conduct. As noted above, according to the Handbook, when a student is removed from the classroom, the teacher completes a "Student Removal Form" and sends the student to the dean of students who ensures that the student writes down his or her account of the circumstances and enters the student's removal into his records. Complainants submitted as Exhibits E, El and E2 to their complaint to the Board of Regents, three student removal forms9 that their son received during his third-grade year, none of which are complete. Exhibit E is not dated and the section indicating whether a parent had been contacted was no.t completed. With respect to Exhibit E1, the section indicating whether a parent had been contacted was not completed. With respect to Exhibit E2, there is no indication that the student was provided the opportunity to write down his account of the circumstances. The student removal forms lacked a date , detail, and/or information demonstrating that the school's policy of calling one of the child' s parents was performed. I find that the school failed to follow its procedures with respect to student removal forms and process as set forth above and sustain complainants ' claim.
With respect to the student' s May 5, 2014 suspension, complainants assert that they should have been contacted by school officials about the incident that resulted in their son' s suspension, that their son should have had an 0pportunity to be heard prior to his suspension, and that the pink slip used to justify the suspension is invalid . The Handbook provides, among other things:
The Assistant Principal, or his/her designee, may impose a short term suspension. Before imposing a short-term suspension, the Assistant Principal, or his designee, shall verbally inform the student of the suspension, the reason for it, and whether it will be served in school or out of school. The student(s) shall be given an opportunity to deny or explain the charges against them. The Assistant Principal will give the student(s) a written letter notifying the parent/guardian that the student(s) has been suspended. from school, along with a copy of the letter for the parent/guardian to sign and return to school by giving it to their child to bring back to the Assistant Principal. The text of the letter shall provide a description of the incident or incidents which resulted in the suspension and shall offer the opportunity for an immediate informal conference with the Assistant Principal, or his designee. Where possible, notification also shall be' provided via telephone 'if the school has been provided with a contact telephone number for the parent/guardian. A student who receives a short-term suspension will not be allowed to return to classes until the letter is signed and returned to the Assistant Principal (emphasis omitted).
According to the Handbook, before imposing a short-term suspension, the assistant principal, or his designee, shall verbally inform the student of the suspension, whether it will be served in school or out-of-school and the reason for the suspension, and the student shall be given an opportunity to deny or explain the charges against him. It further provides that the assistant principal will give the student a written letter notifying the parent/guardian that the student has been suspended from school, along with a copy of the letter for the parent/guardian to sign and return to school by giving it to their child to bring back to the assistant principal before they can return to class and that, where possible, notification shall be provided via telephone if the school has been provided with a contact telephone number for the parent/guardian. The May 5, 2014 suspension letter10 indicates that the school had a phone conversation with the student's father regarding the suspension on the afternoon of May 5, 2014. With respect to complainants' assertion that they should have had an opportunity to be heard prior to their son's suspension, the Handbook provides that the text of the letter shall provide a description of the incident or incidents which resulted in the suspension and shall offer the opportunity for an immediate informal conference with the assistant principal, or his designee. While the school's disciplinary policy does not require that the immediate informal conference be held prior to the suspension, it does require that the suspension letter include language offering the opportunity for an immediate informal conference. The May 5, 2.014 suspension letter does not include the language required by the school's discipline policy. I note that the student was provided an opportunity to call his mother after the incident; however, it is not clear whether he was provided an opportunity to deny or explain the charges against him. Nor is it clear whether a pink slip was issued when the student was removed from the classroom before the suspension. Accordingly, I find the suspension to be improper and sustain complainants' claim.
Finally, although not entirely clear, I note that there are facts and circumstances presented in this appeal indicating that the student would benefit from an evaluation to determine if he is a student with a disability. In this regard, I am directing my Office of Special Education to provide guidance and technical assistance to the school in order to ensure that it complies with the provisions of the Individuals with Disabilities Education Act (" IDEA") and its corresponding regulations, specifically the requirements with respect to the referral of a child suspected of having a disability. As well, complainants may seek assistance from the Office of Special Education's regional Special Education Quality Assurance office if they have questions about special education and their rights.
In light of this disposition , I need not consider the parties' remaining contentions. THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the school expunge Exhibits E, El and E2 from the student's records and provide notice of that expungement to the new school the child attends; and
IT IS FURTHER ORDERED that the school annul and expunge the May 2014 suspension from the student' s records and provide notice of that expungement to the new school the child attends; and
IT IS FURTHER ORDERED that the school ensure that its staff fully comply with all aspects of the student discipline code as set forth in its charter.
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 m hand and affix the seal of the State Edu cation Deartment,_e the City of Albany, this day of .6C , 2017.
1 Complainants indicate that they filed several complaints with the school. In considering the complaint to the Board of Regents, l have reviewed the complaints to the chairman of the School Trustee s dated May 21 and May 30, 2014, and the School Trustees' response dated June 18, 2014.
2 While the parties have submitted the Handbooks for the 201 2-2013, 2013-2014 and 2014-2015 school years, I have reviewed the 2013-2014 version as it was the Handbook in effect at the time the student was suspended.
3 According to the Handbook, when a student is removed from the classroom, the teacher completes a "Student Removal Form" referred to as a " pin k slip" due to the color of the form.
4 In their complaint to the School Trustees , complainants state that there were inconsistencies in the suspension letter mailed on May 5, 2014 that needed to be corrected and that a second suspension letter was emailed to them by the school' s dean. However , complafnants do not indicate what the inconsistencies are. I note that Exhibit F to the complaint to the Board of Regents is a suspension letter with a signature line for the assistant principal. There is no similar discussion in the complaint to the Board of Regents that there was a second suspension letter and I have considered Exhibit F to the complaint to the Board of Regents as the operative May 5, 2014 suspension letter.
5 SUNY also found that the student' s actions constituted a sufficient infraction of the school' s code of conduct to warrant a suspension and that complainants failed to provide sufficient evidence to vacate a suspension of the student that was imposed in June 201 4. This suspension could not have been addressed by the School Trustees as the complaint submitted to the School Trustees was dated May 30, 2014 . As the June 2014 suspension was not raised with the School Trustees , it is not properly before me and must be dismissed (see Education Law §2855[4]).
6 In the interests of justice and closure , I will address this issue even though it is not clear that complainants raised it in their complaints to the School Trustees and SUNY.
7 Complainants also assert that the school violated its written policy and procedures, as set forth in the Handbook , to provide their son with a daily Academic and Behavior Chart that the school provides ti) "students who exhibit disruptive behavior ." However, the school' s alleged failure to issue Academic and Behavior Charts was raised for the first time in the complaint to the Board of Regents , and is not properly before me (see Education Law §2855[4]). I note that a behavioral log was maintained by the school and provided to complainants. In addition , complainants had regular phone and email communications with school officials regarding their son's behavior.
8 The parties disagree about whether the school initiated a referral to the district's Committee on Special Education (CSE) for an evaluation and determination of eligibility for special education programs and services. .School officials indicate that they requested an assessment of the student ·when he was in the second ·grade and that they offered counseling when the student was in the third grade, but that complainants did not agree to either the assessment or the counseling. complainants assert that they would have agreed. to an asessment had one been offered by the school I note that a referral for an initial evaluation may be made by a student's parent (see Commissioner's regulations 200.4[a][1]).
9 The notes taken by the school' s principal at the May 8, 2014 follow-up meeting about the student's MSP indicate that as of that meeting the student had received three pink slips. I wrote' that complainants indicate in their complaint to the School Trustees that "there have been (10) pink slips issued against [the student] while in third grade." I further note that in their complaint to SUNY, complainants refer generally to the pinks slips issued against their son as a third -grade student and identify four specific pink slips However, I have reviewed only those pink slips that were listed as exhibits to the complaint to the Board of Regents.
10 see footnote 4 supra