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Decision No. 13,618

Appeal of PATRICIA WEISS from action of the East Hampton Union Free School District regarding the district's drug policy.

Decision No. 13,618

(June 8, 1996)

Cooper, Sapir & Cohen, P.C., attorneys for respondent, Robert E. Sapir, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals actions of the East Hampton Union Free School District and its high school principal, Jay Niles, ("respondents") pertaining to the district's drug policy. The appeal must be dismissed.

In furtherance of the district's substance abuse policy, respondent Niles co-authored a letter with Thomas L. Scott, Town of East Hampton Chief of Police, addressed to business establishments requesting that they "voluntarily discontinue the sale of rolling paper." Petitioner alleges that uniformed officers hand-delivered such letters to local businesses. Petitioner, who uses cigarette rolling papers for cosmetic purposes, contends that respondents' actions interfere with her liberty interest, that the method of delivery is unconstitutional, and that the policy is preempted by state law which allows for the sale of rolling paper. She seeks a determination that the district lacks authority to engage in this conduct, that the policy is preempted by State law and therefore invalid, and that the use of police officers to deliver the letters was arbitrary and capricious, an abuse of discretion, and contrary to law.

Respondents contend that petitioner lacks standing because she is a nonresident and because she has not demonstrated that she is an aggrieved party. Respondents maintain that petitioner's claims are not justiciable pursuant to '310. Respondents also contend that the letter is protected by the First Amendment as free speech, that the district is not responsible for the actions of the police, and that the petition does not allege that the board had knowledge of this activity. They maintain that the policy is not preempted, not contrary to law, and not arbitrary, capricious, or an abuse of discretion.

The appeal must be dismissed for lack of standing. Petitioner has no standing to bring this appeal because she is not an "aggrieved party" as contemplated under Education Law '310. An "aggrieved party" is defined as one who demonstrates a personal injury to his or her civil, personal or property rights resulting from the action complained of (Appeal of Garwood, 35 Ed Dept Rep 297; Appeal of Shabot, 35 id. 289). Although petitioner claims that the district policy interferes with her personal liberty interest, she does not allege, nor provide evidence, that any merchants have stopped selling rolling papers. In an appeal before the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126). Petitioner has failed to meet that burden.

Furthermore, petitioner's claims are primarily constitutional (i.e., infringement of a liberty interest, preemption, constitutionality of the delivery method) and Education Law '310 is not the proper forum to decide novel constitutional questions (Appeal of Silano, 33 Ed Dept Rep 20; Appeal of Martin, 32 id. 381). I have reviewed petitioner's remaining claims and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE