
    [862 NYS2d 696]
    LaShawn P. Allen, Respondent, v Harlem International Community School, Appellant.
    Supreme Court, Appellate Term, First Department,
    May 30, 2008
    APPEARANCES OF COUNSEL
    
      Wallie Simpson, Principal, Harlem International Community School, appellant pro se. LaShawn P. Allen, respondent pro se.
   OPINION OF THE COURT

Per Curiam.

Judgment entered on or about May 10, 2007 affirmed, without costs.

The record establishes that the trial court applied the appropriate rules and principles of substantive law and accomplished “substantial justice” (CCA 1804, 1807) in awarding judgment to plaintiff in this small claims action. In concluding that defendant improperly expelled plaintiffs daughter from its private school, the court appropriately gave effect to the “Rules and Regulations” made part of the governing enrollment agreement, whose provisions, reasonably interpreted, authorized a student’s expulsion only in situations involving a student’s use of illegal drugs (para 3) or resort to “violent behavior” (para 4 [d]). We reject, as did Civil Court, defendant’s strained argument that the daughter’s utterance of the words “[sjhut up” on school premises and her “obstinacy” in repeating the statement somehow qualified as “violent behavior” within the meaning of paragraph 4 (d). While the dissent points to the seemingly “acrimonious relationship” between plaintiff and the school’s principal (Simpson) as justification for the daughter’s expulsion, it bears emphasis that Simpson, defendant’s lone witness, made no such assertion at trial, instead relying exclusively on what she described, albeit without substantiation, as the daughter’s rude and contentious behavior as the sole basis for her decision to summarily expel the daughter from school. On this record, the trial court could reasonably find that the principal’s decision was not in compliance with the school’s own rules and regulations (cf. Stone v Cornell Univ., 126 AD2d 816 [1987]), the binding effect of which defendant does not dispute.

Also without merit is defendant’s contention that a tuition refund was precluded by language found in its registration form advising parents that “ten percent of the tuition will be refunded if I withdraw my child . . . from [school] three weeks before the school session begins in September . . . [and] that no other refunds will be made.” The quoted provision was plainly intended to cover the situation, not here present, where a student voluntarily leaves or “withdraw[s]” from the school, and cannot be read to insulate defendant from liability for its own demonstrated breach of the enrollment agreement through the unauthorized expulsion of a student.

Since the terms of defendant’s enrollment agreement do not expressly or with certainty authorize the draconian punishment given to plaintiffs daughter or restrict plaintiffs recovery of a tuition refund, “it cannot be said that a determination adverse to [defendant-jappellant is so shocking as to not be substantial justice” (Blair v Five Points Shopping Plaza, 51 AD2d 167, 169 [1976]; see Williams v Roper, 269 AD2d 125 [2000], lv dismissed 95 NY2d 898 [2000]). We note that defendant does not challenge the amount of the damage award on appeal and that the award, in any event, is supported by the record.

McKeon, EJ.

(dissenting). During the school year 2006-2007, plaintiffs daughter was enrolled as a student at defendant Harlem International Community School (the school), a private charter grammar school (as best as can be determined from the record), the principal of which was Wallie Simpson.

According to Ms. Simpson, plaintiffs daughter was a discipline problem who had been previously suspended from school for her disruptive comportment. Flaintiff denies this, and the trial court accepted plaintiffs version of events.

Both parties agree, however, that Ms. Simpson, as a form of punishment for a perceived school rule infraction, required plaintiffs daughter to write the words “I will not say shut up” 1,000 times. This disciplinary assignment apparently exacerbated an already acrimonious relationship between plaintiff and Ms. Simpson.

By her own testimony, plaintiff acknowledged that she sought to file harassment charges with police who, it seemed, went to the school to investigate. Soon thereafter, Ms. Simpson expelled the plaintiffs daughter for what she termed, “incorrigible behavior” and plaintiffs efforts to involve police in what was an ordinary grammar school disciplinary matter.

This small claims action followed in which plaintiff sought reimbursement for tuition paid for the school year. Relying on school regulations distributed to parents, the trial court held that plaintiffs daughter could only be expelled for violent behavior. Since no one suggests that she was guilty of such conduct, the trial court ruled that defendant breached its contract with plaintiff to educate her daughter and awarded damages of $1,500. I disagree.

The rules and regulations relied upon by plaintiff — and the trial court — were promulgated by the school to illustrate the varying degrees of punishment which “may” be imposed depending on the severity of a student’s disciplinary infraction. There is no legal basis to contend, as did the trial court, that the rules or regulations constituted a binding contract between school and parent or, for that matter, school and student. Quite the contrary, “private schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of their students” (Hutcheson v Grace Lutheran School, 132 AD2d 599, 599 [1987]).

Hence, I cannot abide with the trial court’s conclusion that the school could only expel a student for violent behavior. What about chronic truancy, inappropriate sexual conduct on school property, habitual disrespectful conduct toward students and teachers — is the school without recourse to address such behavior merely because these activities are not expressly enumerated in its rules and regulations?

The trial court made much of Ms. Simpson’s inability at trial to produce written documentation of plaintiffs daughter’s past misconduct. However, this overlooks plaintiffs own testimony that she had stopped speaking to Ms. Simpson and that her mother (the student’s grandmother) was acting as de facto parent in dealing with the school. It requires no great leap to conclude that there was a “history” between plaintiff and the school.

A private school may expel a pupil when such action is in the best interest of the school, the child or other students (Hutcheson v Grace Lutheran School, 132 AD2d at 600).

For decades, parochial schools have disciplined students by requiring written assignments, either on paper or on a blackboard. Have school administrators or teachers, from time to time, been unfair in doling out such discipline? Perhaps. But that is hardly a reason to complain to police and require New York’s finest to travel to a grammar school to investigate a disciplinary assignment which required a child to write “I shall not say shut up” multiple times. Nor does it promote a healthy learning environment for a parent to file harassment charges with a government agency, as plaintiff sought to do here, because of her displeasure with a disciplinary code. Clearly, there is no claim that the school engaged in corporal punishment or criminal conduct. Rather, this is a situation where a student was a poor fit with a school, so much so that the orderly operation of the school was being disrupted by a parent’s actions.

Further, one gets the sense from reading the record that plaintiff and the trial court believe that Ms. Simpson and her school are archaic in the modes of discipline imposed upon the students. Maybe they are right. However, the rules and regulations distributed to parents make abundantly clear that the school adheres to strict disciplinary standards. And a parent cannot be heard to complain that the rules do not provide a forewarning of what to expect. Some parents, for whatever reason, want a school which is committed to making good conduct a staple of the educational experience. That is their right.

So too, plaintiff had rights regarding her daughter’s education. But they did not include requiring a school to conform to plaintiffs thoughts of what constituted appropriate student discipline. If she considered the school too strict, plaintiff should have sent her child elsewhere, to a school which was in harmony with her philosophy on education.

Plaintiff got what she bargained for: an ultra-strict private school run by a no nonsense principal who is a strict disciplinarian. Defendant did not breach its contract with plaintiff; rather, it was plaintiff, by her extreme measures, who breached it with defendant.

Inasmuch as the judgment issued in plaintiffs favor did not achieve “substantial justice” consistent with substantive law principles (see CCA 1807), I respectfully dissent and vote to reverse and dismiss the action.

Schoenfeld and Heitler, JJ., concur; McKeon, EJ., dissents in a separate opinion.  