Decision No. 13,808

(August 6, 1997)

Jacobson & Levenstein, attorneys for petitioners, Myron Levenstein, Esq., of counsel

Jaspan, Schlesinger, Silverman & Hoffman, LLP, attorneys for respondent, Lawrence J. Tenenbaum, Esq., of counsel

CATE, Acting Commissioner.--Petitioners challenge the refusal of the Board of Education of the East Williston Union Free School District ("respondent") to allow their daughter to attend a Halloween Party held at a public middle school in respondent's district. The appeal must be dismissed.

Petitioners reside within respondent's district and their daughter attends Friends Academy, a private school. In October 1995, petitioners' daughter was invited by her friends to attend a Halloween party that was being held on October 31, 1995, beginning at 7:00 p.m., at the I.U. Willets Road School, a public middle school in respondent's district which is located in an area known as the Roslyn County Club. Petitioner Michele G. Jacobson learned from another parent that only district students were allowed to attend the party. On October 28, 1995, petitioner Myron G. Jacobson contacted the principal of the school who advised him that Clarice could not attend the party because she did not attend the Willets Road School. Myron Jacobson then contacted respondent's superintendent, who upheld the principal's decision. Further attempts by petitioners to persuade the principal to reverse his decision were unsuccessful. Michele Jacobson brought Clarice to the Willets Road School on the evening of October 31, 1995 to attend the party, but the principal refused to allow her to enter the party. On November 16, 1995, petitioners served respondents with a notice of claim.

On September 15, 1996, respondent scheduled the 1996 Halloween Party, again limited to students of the Willets Road School. Petitioners commenced an action against respondent in Nassau County Supreme Court on September 16, 1996 seeking consequential and punitive money damages for respondent's alleged negligent and intentional refusal to allow Clarice entry to the 1995 Halloween Party and also requesting a preliminary injunction compelling respondent to allow their daughter to attend any future event to which students of the district are invited, especially the 1996 Willets Road School Halloween Party. On October 23, 1996, Justice Thomas P. Phelan denied their request for an injunction and in his decision stated that the Halloween Party is a school function for which respondent can properly limit attendance to students of the Willets Road School (Jacobson, et al. v. East Williston Union Free School District, 170 Misc. 2d 93, 649 NYS2d 1002). On March 10, 1997, Justice Phelan granted respondent's December 18, 1996 motion to dismiss petitioners' complaint. (Jacobson, et al. v East Williston Union Free School District, Sup. Ct., Nassau Co., Index No. 027623/96). Petitioners commenced this appeal on December 30, 1996.

Petitioners contend that respondent's Halloween Party is not a school function, rather it is a continuation of an annual event formerly sponsored by the Roslyn County Club community, but conducted by respondent since 1995. Petitioners also contend that because they are residents of the district, Clarice is entitled to the use of the district's facilities and services, including the party. Petitioners request that I review the actions of respondent in denying Clarice admission to the party, that I issue an order prohibiting respondent from preventing Clarice's use of respondent's facilities and services, together with attorney's fees and costs.

Respondent contends that the party is a school function held annually since 1990 and run by the teachers and administrators of the Willets Road School, with the assistance of the Willets Road Parent-Teacher Organization, and is entirely separate from any other party which may have been held in the community. Respondent states that the party has always been limited to students of the Willets Road School, who must submit permission slips signed by their parents in order to attend, and that even students of other schools in the district are not allowed to attend the party. Respondent also contends that no Halloween Party has yet been scheduled for 1997. Respondent raises a number of defenses including election of remedies, res judicata, untimeliness, prematurity, failure to exhaust administrative remedies and mootness.

This appeal must be dismissed as untimely as to petitioners' request for review of respondent's actions in refusing to allow Clarice to attend either the 1995 or the 1996 Halloween Party. An appeal to the Commissioner of Education pursuant to Education Law '310 must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR '275.16). Petitioners instituted this appeal on December 30, 1996, more than 30 days from respondent's decisions regarding admission to those parties. Petitioners state that they were unaware of their right to file an appeal pursuant to Education Law '310. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of A.B., 36 Ed Dept Rep 155; Appeal of Kline, 35 id. 91; Appeal of a Child with a Disability, 33 id. 672). I find no evidence of unusual circumstances in this case. Therefore the appeal must be dismissed as untimely as to the 1995 and 1996 parties.

As for petitioners' request for admission to future district events, the appeal is premature and must be dismissed. Petitioners have not requested entry to any particular future event, although it is likely that they are looking toward the possibility of the 1997 Willets Road School Halloween Party. Respondent contends that there has been no formal decision that the party will be held in 1997. Petitioners will not be aggrieved unless and until respondent has made a decision to schedule the party (Appeal of Sullivan, 23 Ed Dept Rep 264). It is well established that I will not render advisory opinions or decide issues which have not yet become justiciable (Appeal of Sullivan, supra; Appeal of Rhodes, 21 Ed Dept Rep 632).

In addition, it is well settled that the prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner of Education (Appeal of a Student with a Disability, 36 Ed Dept Rep 287; Appeal of Goldberg, 29 id. 476; Appeal of Andreasen, 26 id. 246). The record indicates that petitioners commenced an action in Nassau County Supreme Court arising out of the same set of facts and seeking similar relief to that sought in this appeal. In light of petitioners' election of remedies, I am constrained from deciding the merits of this appeal.

In view of the foregoing disposition, it is unnecessary to address the parties' remaining claims.

THE APPEAL IS DISMISSED.

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