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Decision No. 13,421

Appeal of JOAN M. LINDAUER, on behalf of her daughter, TRACY, from action of the Board of Education of the Arlington Central School District relating to student discipline.

Appeal of ANTHONY and DENISE MC KEE, on behalf of their daughter, TARA, from action of the Board of Education of the Arlington Central School District relating to student discipline.

Decision No. 13,421

(June 6, 1995)

Raymond G. Kuntz, Esq., attorney for respondent, Raymond G. Kuntz and Mario L. Spagnuolo, Esqs., of counsel

SOBOL, Commissioner.--Petitioners, the parents of two students in the Arlington Central School District, have initiated separate appeals challenging disciplinary action against their daughters by the Arlington Board of Education ("respondent"). The appeals have been consolidated for decision because they involve similar facts and issues. Both must be dismissed.

Following a girls' basketball game on February 14, 1994, petitioners Tracy Lindauer and Tara McKee tried to attend a team meeting. When the coach informed Tracy and Tara that they could not attend, Tracy attempted to force her way into the meeting room and eventually succeeded in pushing past the coach. When respondent's assistant principal ordered Tracy and Tara to leave, Tracy challenged his authority. Tara then made a statement implying that she intended to disrupt an upcoming "awards night" ceremony.

Respondent's principal subsequently investigated the incident. After interviewing 23 individuals, the principal determined that Tracy was guilty of insubordination, disorderly conduct and conduct that endangered the welfare of other students. The principal also found Tara guilty of disruptive behavior and disorderly conduct. After reviewing their records, which are described as "good overall," the principal imposed a four day in-school suspension on Tracy and a one day in-school suspension on Tara. These appeals ensued.

Before reaching the merits, it is necessary to address several procedural issues. The record reveals that petitioners' replies contain new material which was not previously set forth in the petitions. A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Application of Verity, 31 Ed Dept Rep 485; Appeal of Pronin, 27 id. 203). Therefore, I will not consider the material added by petitioners in the replies to the extent that such material does not respond to new material or affirmative defenses set forth in the answers (8 NYCRR 275.14).

Respondent contends that the appeals must be dismissed because petitioners failed to join necessary parties. Petitioners seek an order imposing discipline against the girls' basketball coach. Petitioners also seek an order directing written apologies by respondent's two principals, an assistant principal and the superintendent. Since petitioners request remedies that affect those individuals, they are necessary parties to these appeals. As such, they should have been served with the notices and petitions and afforded an opportunity to respond to petitioners' claims (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Healy, 29 id. 391; Appeal of Zimmerman, 28 id. 382). Because petitioners failed to join them, the appeals must be dismissed.

The appeals must also be dismissed on the merits. Petitioners contend that the in-school suspensions imposed on their daughters were not justified and that Tracy was subjected to excessive physical force by the girls basketball coach. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Gaslow, 34 Ed Dept Rep 293; Appeal of Singh, 30 id. 284). In support of their contention, petitioners have submitted several unsworn and inconclusive statements. However, sworn affidavits submitted by the basketball coach, respondent's athletic director, a physical education teacher, a principal, an assistant principal, a team member, a game referee, a game spectator and two parents clearly establish that Tracy and Tara were guilty of aggressive, disruptive behavior and insubordination on February 14, 1994. Moreover, the record does not support petitioners' assertion that the basketball coach used excessive force against Tracy. Further, while petitioners contend that Tara has been discriminated against and harassed by the basketball coach, petitioners present no evidence to support their contention. Accordingly, there is no basis for expunging the suspension from Tracy's or Tara's records.

Petitioners have also sought the production of relevant documents by respondent under the Freedom of Information Law (FOIL). The appropriate forum for addressing alleged FOIL violations is in the Supreme Court of the State of New York, not a '310 appeal to the Commissioner of Education (Appeal of Williams, 33 Ed Dept Rep 318; Appeal of Kushner, 31 id. 351; Application of Eisner, 31 id. 517). To the extent petitioners make claims for records under the Family Educational Rights and Privacy Act (FERPA), I note that the U.S. Department of Education has sole authority to enforce that law (20 USC '1232g, 34 CFR '99.22; Appeals of Children with Handicapping Conditions, 32 Ed Dept Rep 2; Appeals of Children with Handicapping Conditions, 31 id. 26).

I have considered petitioners' remaining contentions and find them without merit.

THE APPEALS ARE DISMISSED.

END OF FILE