Division of
Human Rights
NEW YORK STATE
DIVISION OF HUMAN RIGHTS
———_—___—_
| NEW YORK STATE DIVISION OF
HUMAN RIGHTS on the Complaint of
AMY CHISHOLM ON BEHALF OF MINOR CHILD
MIKAYLAH CHISHOLM, DETERMINATION AFTER
Complainant, | INVESTIGATION
v,
Case No.
HEUVELTON CENTRAL SCHOOL DISTRICT, 10217072
HEUVELTON CENTRAL SCHOOL DISTRICT,
BOARD OF EDUCATION, SHANNAN JORDAN,
JOSHUA MCALLISTER, JESSE COLBURN,
Respondents
1
On 4/11/2022, Amy Chisholm filed a complaint with the New York State Division of
Human Rights (“Division”), charging the above-named Respondents with an unlawful
discriminatory practice relating to education because of race/color, sex in violation of N.Y. Exec.
Law, art, 15 (“Human Rights Law”).
After investigation, the Division has determined that it has jurisdiction in this matter and
that PROBABLE CAUSE exists to believe that the Respondents have engaged in or are engaging
in the unlawful discriminatory practice complained of. Pursuant to the Human Rights Law, this matter is recommended for public hearing. The
parties will be advised of further proceedings.
Dated: October 31, 2022
Binghamton, New York
STATE DIVISION OF HUMAN RIGHTS
we DOA Gade
or P. DeAmelia
Regional Director Information to the Parties
Following Determination of Probable Cause
‘The New York State Division of Human Rights (“Division”) is the administrative
agency charged with enforcing the New York State Human Rights Law. The Division
investigates complaints of discrimination, determines whether there is probable cause to believe
that discrimination has occurred, and conducts a public hearing of the complaint where probable
cause is found. Probable cause has been found in this case, and the matter will now proceed to a
public hearing before an Administrative Law Judge.
Ifa Complainant does not have a private attorney, the Division will assign an attorney to
present the case in support of the complaint. The Division attorney at all times represents the
Division, not the Complainant personally. Substitutions and reassignments of Division attorneys
and Administrative Law Judges are within the Division's discretion.
The hearing process will start with the preliminary conference conducted by telephone, at
which time the hearing dates for the taking of testimony will be agreed upon. There is no formal
discovery. Parties must exchange document and witness lists prior to the preliminary
conference.
The preliminary conference will include an opportunity for the parties to discuss possible
settlement of the case. If Respondent wishes to make an offer of settlement prior to that time,
Respondent should contact the Director of Prosecutions at (718) 741-8396.
The parties have a continuing obligation to keep the Division advised as to all changes in
the case including:
1. Changes in name, address, email address and/or telephone number of the parties and
successors in interest. Due to COVID-19 the Division is conducting public
hearings by video conference. Therefore, an email address must be provided if
you have not already provided one. See further information below in the FAQs
Commencement of proceedings in another forum.
Settlement of the case.
3.
Any of the above information should be timely provided to the Division, IN WRITING on the
attached form to the following by mail, email or fax:
New York State Division of Human Rights
Attn: Chief Administrative Law Judge
One Fordham Plaza, 4th Floor
Bronx, New York 10458
Fax: (718) 741-8333
Email: hearings@dhr.ny.gov Information to the Parties
Page 2
If the Complainant wishes to seek dismissal of this matter to proceed in an alternate
forum, an application should be filed with the Chief Administrative Law Judge at the above
listed address, preferably within twenty (20) days of the date of this determination.
The parties also have a continuing obligation to maintain certain information and records
such as:
1, Parties must keep track of the whereabouts of their witnesses.
2. Parties are obligated to identify and preserve all evidence relating to the case,
including evidence relating to any incidents which relate to the case that occur after
the Division makes a finding of probable cause, and including all evidence whether
for or against that party’s interests.
Parties are responsible for recording and keeping evidence relating to any increase or
reduction in damages.
Finally, if you would like to request a copy of the investigation file, please do so
promptly. Put your request in writing to:
New York State Division of Human Rights
Attn: FOIL Officer
One Fordham Plaza, 4th Floor
Bronx, New York 10458
Fax: (718) 741-8256
Email: foil@dhr.ny.gov
Please note that your request for documents, or the Division’s response or date of
response thereto, will not affect the date of the hearing, and cannot be used to request a
postponement or rescheduling of the hearing. Costs for copying, established by statute, will
apply Information to the Parties
Page 3
INFORMATION ABOUT THE HEARING PROCESS
The following are general responses to frequently asked questions. The responses are not legal
advice and should be used for informational purposes only.
WHAT LAWS GOVERN THE HEARING PROCESS?
The New York State Human Rights Law (N.Y. Exec, Law, art, 15), and the Division’s Rules of
Practice (9 N.Y.C.R.R. § 465) outline the policies and procedures that govern the hearing
process held at the New York State Division of Human Rights. The Human Rights Law and the
Division's Rules of Practice are available on the Division’s website at www.dhr.ny.gov. The
New York Civil Practice Law and Rules and the Federal Rules of Procedure and Evidence are
inapplicable to Division proceedings, although they are relied upon as a guide for the orderly
introduction and acceptance of evidence. Please cite to New York State case law wherever
possible in all submissions to the Division.
WHAT IS A PUBLIC HEARING?
Where the Division finds probable cause after investigation, the Human Rights Law requires that
the entire case be heard at a public hearing before an administrative law judge, where all relevant
evidence is presented and the testimony of witnesses is taken under oath and subject to cross-
examination
A public hearing is a trial-like proceeding at which relevant evidence is placed in the hearing
record. It is a hearing de novo, which means that the Commissioner's final decision on the case
is based solely on the content of the hearing record. The public hearing is presided over by an
Administrative Law Judge (ALJ), and a verbatim transcript is made of the proceedings.
‘The hearing may last one or more full days. The hearing sessions are generally scheduled on
consecutive days. Parties are notified of all hearing sessions in advance, and the case may be
adjourned to a later date only for good cause.
Respondent can retain private counsel for the hearing. If Respondent is a corporation, itis,
required to be represented by legal counsel. Complainant can retain private counsel for the
hearing but is not required to do so. If Complainant is not represented by private counsel, the
Division’s counsel prosecutes the case in support of the complaint. Attorneys for the parties or
for the Division may issue subpoenas for documents and/or to compel the presence of witnesses.
After the public hearing is concluded, the ALJ prepares a recommended order that is sent to the
parties for comment
After comments are received, the Commissioner issues a final order. The Commissioner either
dismisses the complaint or finds that discrimination occurred. If the Commissioner finds that
discrimination occurred, Respondent will be ordered to cease and desist and take appropriate
action, such as reinstatement, training of staff, or provision of reasonable accommodation to a Information to the Parties
Page 4
known disability. The Commissioner may award money damages to Complainant, including
back pay and compensatory damages for mental pain and suffering, and in certain instances,
punitive damages and attorney fees. The Commissioner may also order Respondent to pay civil
fines and penalties to the State of New York. Either party may appeal the Commissioner's Order
to the State Supreme Court within 60 days. Orders after hearing are transferred by the State
Supreme Court to the Appellate Division for review.
IMPORTANT
If you have questions regarding your case, please contact the Calendar Clerk via email at
hearings@dhr.ny.gov or by telephone at (718) 741-8261. Please do not contact your regional
office; they do not have any information on the hearing process
FREQUENTLY ASKED QUESTIONS
1, How is the Division conducting public hearings during the COVID-19 pandemic?
During the COVID-19 pandemic, all public hearings are conducted via videoconferencing,
Zoom. The Division has suspended all in-person public hearings until further notice.
2. Will my hearing be a public hearing, although it is conducted via Zoom?
Yes. All scheduled public hearings will be posted on the Division's website, with
instructions to the public about how to gain access to the public hearings by sending an
email to: hearings@dhr.ny.gov.
3. When should an answer to the complaint be filed?
At least two business days prior to the scheduled preliminary conference, Respondent and
any necessary party, must file a written answer to the complaint, sworn to and subject to the
penalties of perjury. The written answer must be filed with the assigned ALJ and served
upon each of the other parties to the proceeding. The answer must contain all affirmative
defenses.
4. When should the preliminary conference statement be filed?
At least five days before the scheduled preliminary conference date, the parties must submit
the following information to the assigned Administrative Law Judge, a copy of which must
be served upon each of the other parties: (a) a brief statement of each issue in the case: (b) a
detailed description of each proposed exhibit and its relevance to the issues identified; and
(©) a list of proposed witnesses, with an explanation of their identity and the scope of their
knowledge of the facts of the case.
5. When should the parties exchange exhibits?
‘The parties must exchange their proposed exhibits at least five days before the scheduled
preliminary conference. 10.
u.
12.
13,
14.
Information to the Parties
Page $
How do I communicate with the ALJ?
All formal papers, including, but not limited to the answer, must be submitted via personal
service, mail or fax (with an original to follow), with a copy to all parties, for proper
docketing and timely filing. Formal papers submitted via electronic mail
(hearings@dhr.ny.gov) are deemed courtesy copies and do not constitute proper service
Can I speak with the ALJ?
Ex-parte communication (i.e., by only one party) with the ALJ assigned to the ease is
strictly prohibited. The parties may jointly request a conference with the ALJ through the
Office of Administrative Law Judges
What do I bring to the public hearing, such as documents, witnesses, etc.?
You should bring all documents and witnesses relevant to your claims and/or defenses
You should also bring proper identification
What if I need interpretation services?
Interpretation services will be provided at no charge. Please alert your Division
representative and the Office of Administrative Law Judges at (718) 741-8255 if an
interpreter is required.
What should | do if I have a conflict with the hearing date that is scheduled?
You should submit, as soon as possible, a written request for an adjournment of the hearing,
stating the basis for your request, to the ALJ assigned and all parties.
On what basis will the ALJ grant an adjournment?
No adjournment of the hearing shall be granted except for actual engagement before a
higher tribunal or for other good cause shown. Settlement discussions or settlement in
principle do not constitute good cause.
What is the proper attire?
Please dress in a manner that shows respect for these important proceedings.
Am [ allowed to eat during the public hearing?
No. But you are allowed to bring water.
May I enter into a private settlement?
Private settlements will not be accepted for cases filed after October 12, 2021. If you reach
a settlement, you must use the Division’s Stipulation of Settlement. The language
contained in the Division’s Stipulation of Settlement has been approved by the 15.
16.
17.
18.
19.
20.
a.
Information to the Parties
Page 6
Commissioner and must be strictly followed by the parties. You may request a copy of the
Division's Stipulation of Settlement by contacting the Office of Administrative Law Judges
by telephone at (718) 741-8255 or via email at hearings@dhr.ny.gov
What do I do with my cellphone or other electronic device?
All cellphones and other electronic devices must be tuned off or placed in silent mode
during the hearing, unless you are participating by telephone or videoconferencing
Attorneys, parties, witnesses, and any other persons attending the hearing are prohibited
from taking photographs, making video or audio recordings, broadcasting or telecasting the
public hearing, at any time, whether or not the public hearing is in session
What happens if I do not appear for the public hearing?
Complainant's failure to appear at a public hearing may result in a dismissal of the
complaint. Respondent's failure to appear may result in a default finding against that
Respondent.
How long is the public hearing?
Public hearings are generally scheduled for two (2) days. Each scheduled date starts at 9:30
am, and ends at 5:00 p.m. Be prepared to be present until the end of the day
Can I bring my child(ren) to the public hearing?
No. You must make childcare arrangements.
Are electronic signatures accepted?
No. Please refer to the New York Technology Law § 304 and the New York Electronic
Signatures and Records Act for more information
May an attorney not admitted in New York State represent a party at a public
hearing?
Please see 22 N.Y.C.R.R. § 523.2 and guide yourself accordingly
May a law student admitted to the practice of law pursuant to an Appellate Division
Order and under the supervision of a licensed attorney appear at a public hearing?
Please see 22 N.Y.C.R.R. § 805.5, Judiciary Law § 478 and § 484, and relevant Appellate
Division rules, NEW YORK STATE
DIVISION OF HUMAN RIGHTS
TO: Files REGION: Albany
FROM: Victor P. DeAmelia DATE: October 21, 2022
Regional Director
SDHR CASE NO: 10217072-22-D-RS-
SUBJECT: Amy Chisholm on behalf of minor child Mikaylah Chisholm v. Heuvelton Central
‘School District, Heuvelton Central School District, Board of Education, Shannan
Jordan, Joshua MeAllister, Jesse Colburn
FINAL INVESTIGATION REPORT AND BASIS OF DETERMINATION
1. CASE SUMMARY
This is a complaint, filed by complainant, Amy Chisholm, on Mon 4/11/2022. The complainant
who is , charges the respondents with unlawful discriminatory practices in relation to education
because of race/color, sex.
Il. | SUMMARY OF INVESTIGATION
Complainant's Position:
Complainant, Amy Chisholm on behalf of her minor child Mikaylah Chisholm, alleges the
Respondents have been engaging in unlawful discriminatory practices in relation to education
because of race/color, sex.
Respondents’ Position:
“The Respondents include the Heuvelton Central Schoo! District, the Heuvelton Central School
District Board of Education, and other individuals individually named. The Respondents deny
that the Complainant has been subject to any unlawful discriminatory actions by any of the
Respondents.
Investigator’s Observations
Summary of Investigative Steps
1. Reviewed all materials submitted by parties
2, Requested and reviewed additional information from Respondents regarding “restorative
activities.” Summary of Investigation Observations
Mikaylah Chisholm is a 7" grade student in Heuvelton Central School District. While she has
attended the school the principal was Shannan Jordan, the superintendent Jesse Colbum and
coach of the basketball team Joshua McAllister. Ms. Chisholm is a bi-racial female, whose
mother is White and father is Black.
Ms. Chisholm states that sometime during the 2020 to 2021 academic school year, she was
called a “n***er" and a “bitch” on multiple occasions. Ms. Chisholm’s mother alleges that she
and her daughter brought this to the school’s attention. They allege that there were no visible
consequences for the offending students and that the school was fully aware of the situation and
treated the offending students with impunity
Respondents deny the allegation and state that only one incident was found in the 2020-2021
school year related to the use of the “n-word.” A student, referred to as GT, direct the “n-word”
at Ms. Chisholm. GT was given a one-half day of in schoo! suspension because of his actions.
In 2021, Ms. Chisholm states that she experienced several incidents of being called the “n-word”
by one student, in particular. When reported, nothing was done to this student, Later, Ms
Chisholm states that she was called the “n” word by a different student who she also reported to
principal Shannan Jordan. The student was given a one lunch detention. Ms. Chisholm argues
that she was given a similar discipline of a one lunch detention because she had reacted to the
student using the n-word by giving him the middle finger.
Respondents agree that there was at least one time, in November 2021, where a student was
given a one lunch detention for his use of the “n-word.” Respondents deny that there is any
record of Complainant receiving a one lunch detention during that period for any actions towards
the student. Instead, Respondents state that they did find Complainant was given a one lunch
detention for kicking another student in 2021. The student who was kicked was one of two
students who received referrals for using the “n-word” in conversation with each during gym
class. The word itself was allegedly not used in front of Ms. Chisholm, but later reported to Ms.
Chisholm by other students.
Also in November 2021, Ms. Chisholm sated that she was approached by another student who
asked her if she wanted to join the KNK. When Ms. Chisholm asked what the letters KNK
meant, the student stated the “Kill Nigger Klub.” According to Ms. Chisholm, and her mother,
nothing was done despite the incident being reported to the school.
According to Respondents the allegation was reported to Ms. Jordan who investigated the
situation and found it to be ‘unfounded,’ Students were interviewed who gave conflicting and
inconsistent results with some students staying that “Kill Niggers Klub” was never stated and
that the KNK actually stands for “Kidnap Neighbors Klub.”
It is noted that the above referenced incidents fall outside of the one-year statute of limitation for
alleged discrimination of this type. However, the incidents can be used to demonstrate continuous discrimination based on race.
On or about February 8, 2022, Ms. Chisholm alleges that several students posed their bodies to
spell out the word “n***a” and that a picture was taken of them doing this on school property, in
the gymnasium. The picture was share with Ms. Chisholm by her sister, Maia Chisholm, who
was also a student (in a higher grade) with the same school district. The picture was provided to
the Division and confirms the action and Respondents do acknowledge that this incident did
occur.
Ms. Chisholm also alleges that this was done in the presence of at least one teacher: Coach
McAllister. Upon receipt of the picture, Ms. Chisholm called the school and spoke to the school
principal. Complainant believes the school suspended the students who appeared in the
photograph and that some of them were members of the Boys Varsity Basketball Team,
Respondents stated that each student received 32 days out of school suspension, or they received
15 days out of school suspension, with completion of an 18-hr cultural competency course and
participation in restorative re-entry/harm circles with the aggrieved and involved parties.
Respondents state that the restorative activities cost an excess of $95,000.00. A copy of the
efforts undertaken under the restorative activities was provided by Respondents.
Ms, Chisholm argues that while the suspended students did not attend “Senior Night”, there was
a photograph involving members of the Boys Varsity Basketball Team. In this photograph the
jerseys of the suspended students were held up in what seemed to be an act of solidarity. Further,
that this was done with the knowledge of the coach, Joshua McAllister.
Respondents state that the students were barred from attending the Senior Night activities.
Respondents state that after presentations were made senior players who were graduating
“spontaneously” asked for a photo and held up the jerseys during this photograph. Respondents
deny that any teacher supported the actions taken by the suspended students.
Ms, Chisholm states that later the same week Coach McAllister sent out correspondence to all
members of the basketball team to cancel the practice and offered a team fishing trip to “get
away from the noise.” Ms. Chisholm feels that this was in response to the suspension of some of
the players, in a ploy to soften their punishment.
In response the Respondents state that it was a parent who approached the coach to ask if he
would consider cancelling a Saturday practice so that the parent could take the team fishing. The
Respondents state that the coach agreed and that the coach did not join the fishing trip.
On or about the middle of March 2022, Ms. Chisholm states that a video resurfaced that included
‘Ms. Jordan (principal) and Jesse Colburn (Superintendent). This video also included 6 students.
In the video they were dancing to rap music containing words such as “bitch” and “n***er”,
Also stated during the video, in the song, “suck on a dick, now the bitch need a Tic Tac.”
Respondents note that this was an older video, taken in January 2021. They state that at the time
the video was made, neither staff nor the students were aware of the lyrics. Respondents state that the music had unintelligible lyrics and that they were secondary to the music. Respondents
state that the moming after filming it was discovered that the lyrics were explicit, and that Mr.
Coburn informed the Board of Education in writing of the incident. He also told the student who
had recorded the video to remove it from social media, which she did. Respondents state that the
account that resurfaced with the video, and lyries, was removed within 24 hours after its posting,
On or about the third weekend of March 2022, Ms. Chisholm states that there was a
championship game in Glens Falls, NY. Complainant alleges that the suspended players did play
in this game and that there was a photograph with all the players wearing medals. The suspended
students were also in the picture.
Respondents state that the suspended students did not play in this game per an order of the
Superintendent and that the Superintendent sent a letter to the Ms. Chisholm’s mother regarding
the championship game. Respondents state that the Superintendent was not in attendance at the
game or in the picture alleged, Respondents state that adults in the picture include the head coach
and assistant coach. Respondents state that the suspended basketball players completed their
suspension and had returned to watch the game. In the alleged picture the Respondents state that
these players were wearing street clothes underneath the jerseys. Respondents state it is believed
that the student came to the floor at the end of the game of their own accord and that they were
not invited by any employee of the District.
Respondents also noted that Ms. Chisholm was dishonest during the investigation of another
student experiencing the use of the “n-word,” On or around February 17, 2022, a student referred
to as CV was alleged to have yelled “run n-word” at another student (not Ms. Chisholm). The
allegation was made by another student witness (not the person who was running). No other
student, including the one who was purported running, heard the comment. Ms. Chisholm
initially stated corroborated the witness, stating she had heard the comment firsthand as well.
However, Ms. Chisholm later retracted her statement and apologized for the fib. There was no
other corroboration of the incident
It is noted that Ms, Chisholm’s sister, Maia Chisholm, also has a related complaint regarding
ilar allegations under Division case number 10217076.
2
JA Mie
Helen Torres Ramos
Human Rights Specialist II
Submitted by
Il, BASIS FOR DETERMINATION
Complainant, Amy Chisholm on behalf of her minor child Mikaylah Chisholm, alleges the
Respondents have been engaging in unlawful discriminatory practices in relation to education
because of race/color, sex. Ms. Chisholm is a bi-racial female whose mother is White and whose sojo011g eUo!oy
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