Matter of N.G-M. and Brooklyn Urban Garden CS

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N. G-M. (hereinafter “complainant”), the parent of a sixth-grade student (the “student”) who attended Brooklyn Urban Garden Charter School (“BUGS” or “the school”), filed a complaint regarding multiple issues, largely relating to the school’s instruction and discipline of the student.  The complaint must be sustained to the extent indicated.

 

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 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.

 

Complainant submitted an Education Law § 2855 (4) complaint to the school’s board of trustees (“board”) on May 1, 2017.  She thereafter submitted two additional communications on May 4, 2017, and on August 31, 2017.  By letter dated November 6, 2017, the board informed complainant of its determination related to all three of complainant’s submissions.  Complainant then submitted the instant complaint to the Regents, the school’s authorizer.

 

Complainant presents a host of claims related to the student’s experience at BUGS, including allegations that the school:  (1) failed to follow its policy in imposing an out-of-school suspension; (2) offered inadequate academic support; (3) improperly allowed the student to upload a video to a video-sharing website, YouTube, while at school; (4) failed to address bullying and harassment of the student; and (5) did not respond to complainant’s allegations in a timely manner.  Complainant seeks relief including expungement of the suspension, financial compensation, and a formal apology.

 

The student’s out-of-school suspension must be expunged from his record.  The school’s family handbook authorizes the dean to suspend a student for five days or less upon “notice to inform the students of the charges against him or her.”  The handbook then describes due process procedures that mirror those of Education Law § 3214, including the requirement that the school provide written notice that a student “may be suspended from school … by personal delivery or express mail delivery within 24 hours of the decision to impose the suspension at the last known address or addressed of the parents or guardians.”[1]  The purpose of this notice, as the handbook explains, is to permit an informal conference with the dean and to question complaining witnesses.

 

The school acknowledges that it provided the written notice via email, not regular mail.  The school was not legally required to adopt these specific procedures.  Having done so, however, it must strictly observe them.  BUGS students, parents, and guardians, rely on the information provided to them by the school relating to its operations—in this case, the disciplinary procedure outlined in the handbook—and they must retain confidence that such information is accurate and uniformly enforced.  Thus, I am constrained to find that written notice was not offered in conformity with the school’s charter.[2]  In previous appeals to the Commissioner pursuant to Education Law § 310, it has been determined that violations of the notice and due process provisions of Education Law § 3214 compel expungement of a student’s suspension.  Given the school’s admitted violation of the aforementioned notice and due process protections within its handbook, which mirror those of Education Law § 3214, I find that the student’s suspension must be expunged from his record (see 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).

 

            Complainant has not demonstrated that the school violated any aspect of its charter with respect to the student’s academics.  The record reveals that the school offered support to the student by modifying instruction and offering academic interventions.  The record also reflects that, despite the school’s offer and recommendation thereto, complainant did not consent to an evaluation for special education. 

 

            Similarly, the record does not demonstrate that the student was authorized, or permitted, to record and upload a video on social media during “Global Scholars” class.  The school indicated, in a response to complainant, that all students and parents signed a contract stating that “students may only use applications, websites and programs required to completed assignments/projects and only those that have been approved by [the classroom teacher].”  The school indicates that the classroom teacher “permit[ted] [the student] to make a video during class because he had already finished the project that his classmates were working on.”  It appears that the student unilaterally elected to upload a video to his personal YouTube account.  While complainant attaches great significance to a teacher’s comment (to the student) that “I thought you were making a YouTube video … about your day today or school in general,” I do not find that this proves the school’s permission or authorization.  It is also unclear whether the teacher’s reference to “YouTube” was a reference to that specific product, or to video software generally.

 

With respect to complainant’s allegations of bullying or harassment, the record supports the school’s assertion that the student experienced “confrontations and disputes with … different children throughout the year, and … each individual situation was addressed appropriately.”  The record further reflects that the school investigated all such incidents and regularly communicated with complainant.  While the school admits that the student was inadvertently placed next to a student who had previously pushed him, this occurred for a matter of seconds and was promptly rectified.

 

 However, I am compelled to note that, at the time the complaint was filed, the school’s Dignity for All Students Act (“DASA”) policy was inadequate.  Specifically, the DASA policy did not:  (1) require that school employees who witnessed, or received a report concerning, a reportable offense notify the DASA Coordinator within one day; (2) direct students to report all incidents of bullying and harassment to the school’s DASA Coordinator; and (3) require that any harassment, bullying, or discrimination that might constitute criminal conduct be reported to an appropriate local law enforcement agency.   These deficiencies violated the school’s obligations under DASA (see especially Education Law § 13) and its charter.  To ensure that the school’s DASA policy is legally complaint, I will order that it immediately take action to do so, if it has not done so already.[3]

 

With respect to complainant’s remaining contentions, there is no basis in the record to disturb the board’s determination.  While complainant disagrees with many the school’s actions and responses thereto, she has not met her burden of proving that the school violated Education Law Article 56, the school’s charter, or any other provision of law relating to the charter school’s management or operation.

 

Other than her request for expungement, complainant’s requests for various forms of relief, including financial compensation and apologies from school officials, must be denied.  The Commissioner lacks the authority to order the issuance of an apology (Appeal of Lloyd, 39 Ed Dept Rep 537, Decision No. 14,303).  Likewise, there is no statute that authorizes the Regents to award monetary damages or, or reimbursement in a charter school complaint (compare Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244 [so holding under appeal pursuant to Education Law § 310]; Application of Kolbmann, 48 id. 370, Decision No. 15,888 [same]).

 

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

 

IT IS ORDERED that, the Board of Trustees of Brooklyn Urban Garden Charter School annul and expunge from the student’s record all references to the student’s short-term suspension, imposed on or about April 28, 2017, that is the subject  of this appeal; and

 

IT IS ORDERED that, within thirty days of the date of this decision, Brooklyn Urban Garden Charter School shall submit for review and approval, to the New York State Education Department’s Charter School Office, all policies, procedures, and guidelines required by the Dignity for All Students Act, if the school has not already done so.

 

IN WITNESS WHEREOF, I, Betty A. Rosa, 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                                      2022.

 

 

Commissioner of Education