Matter of J.G-M. and Buffalo Academy of Science Charter School
IN THE MATTER
of
THE COMPLAINT OF J***** G*****-M*****, ON BEHALF OF HER DAUGHTER S*****, CONCERNING BUFFALO ACADEMY OF SCIENCE CHARTER SCHOOL.
DECISION
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J***** G*****-M***** (“complainant”) brings this complaint pursuant to Education Law §2855(4) against Buffalo Academy of Science Charter School (“BASCS” or “respondent”), a charter school chartered by the New York State Board of Regents (“Board of Regents”). Complainant first presented a complaint to BASCS’ Board of Trustees and now presents this complaint to the Board of Regents as BASCS’ charter entity. 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 find that the complaint must be sustained in part.
Complainant brings this complaint on behalf of her daughter, S*****. On November 8, 2005, respondent’s personnel suspended S***** for three days, allegedly for attempting to kick a male student the day before. Complainant admits that S***** attempted to kick the student, but claims that this incident, by itself, did not warrant S*****’s suspension, and that respondent simply used it as a pretext to suspend her for other acts which it could not prove or which were unfounded.[1] In addition, complainant alleges that, among other things, respondent’s personnel failed to properly follow its disciplinary procedures when they suspended S*****, and that respondent failed to provide alternate instruction to her during the term of her suspension. Complainant also seeks compensation for a purse that her daughter lost at BASCS.
Respondent asserts that disciplinary matters are within the discretion of the school’s director, and that in this case the director properly exercised his discretion in imposing a three-day suspension. Specifically, respondent asserts that its director’s decision to suspend S***** was based solely upon her attempt to kick another student, and that a three-day suspension for such actions was both authorized by the school’s disciplinary code and warranted. Moreover, respondent asserts that its school counselor spoke directly to complainant’s daughter about the kicking incident, and that this satisfied any and all procedural requirements. Finally, respondent denies any wrongdoing with respect to S*****’s purse, which it indicates was subsequently found.
As an initial matter, complainant’s allegations with respect to her daughter’s purse must be dismissed due to lack of subject matter jurisdiction. 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). Here, complainant’s claim with respect to her daughter’s purse fails to allege any such violations of law or the charter. To the extent complainant seeks money damages for the loss of her daughter’s pursue, her remedy is to bring an action in court for damages. A charter school complaint is not the proper forum to determine such a claim.
Moreover, complainant’s allegations regarding BASCS’ failure to provide adequate alternative instruction must also be dismissed. Pursuant to Education Law §2854(1)(b), charter schools must comply with the compulsory education requirements of Education Law Article 65, including the alternative instruction requirements set forth therein (see Education Law §3214[3][e]). It does not appear that these allegations were ever submitted to respondent’s board of trustees for its consideration. Accordingly, pursuant to Education Law §2855(4), this issue is not properly before me.
Complainant’s claims regarding alternative instruction must also be dismissed as moot. 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. Here, not only has the term of S*****’s suspension expired, but she is no longer a student at respondent’s school. Accordingly, there is no longer any actual controversy and no basis for awarding relief to complainant with regard to alternative instruction.
I find, however, that petitioner is entitled to relief to the extent she alleges that respondent failed to fully comply with the requirements of its disciplinary code and seeks expungement of the suspension from her daughter’s disciplinary file.[2]
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 every charter school’s charter. Here, with respect to short-term student suspensions (defined by respondent’s charter as suspensions of five days or less), respondent’s charter at page 706 provides, among other things:
The director may impose a short-term suspension. Before imposing a short-term suspension, the director shall verbally inform the student of the suspension, the reason or reasons for it, and whether it will be served in school or out of school. The student shall be given an opportunity to deny or explain the charges.
It is undisputed that the suspension imposed on complainant’s daughter was a short-term suspension. Thus, according to the express terms of respondent’s disciplinary code, prior to imposing a suspension on complainant’s daughter, respondent’s director was required to inform her of the suspension and give her an opportunity to explain or deny the charges. Here, however, respondent only asserts that its school counselor spoke to S***** about the incident, and nowhere is it alleged that she, or anyone else, verbally advised S***** that she would be suspended as a result. In addition, it does not appear that S***** was provided with an adequate and proper opportunity to explain her alleged actions. Thus, I find the suspension to be improper and sustain complainant’s claims with respect to the same.
Finally, I have considered complainant’s other claims and find that they do not warrant additional relief.
THE COMPLAINT IS SUSTAINED IN PART.
IT IS ORDERED that the three-day suspension of complainant’s daughter be annulled and expunged from her record; and
IT IS FURTHER ORDERED that respondent ensure that its staff fully comply with all aspects of the student discipline code as set forth in its charter.
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 , 2008.
Commissioner of Education
[1] Complainant alleges that on November 8, 2007, she received a telephone call from respondent’s dean of students saying that her daughter had been suspended for threatening a female student; a claim for which it was later determined that there was insufficient evidence to support. In addition, complainant alleges that respondent suspended her daughter, at least in part, due to an alleged bus vandalism incident for which she was later exonerated.
[2] Although respondent advises that short-term suspensions are not included in a student’s permanent record, it appears that this information is still included as part of the student’s general disciplinary file.