Decision No. 14,026
Appeal of KENNETH ANDELA, on behalf of LINDSAY SUE C. ANDELA, from action of the Board of Education of the Mount Markham Central School District regarding harassment and admission to the National Junior Honor Society.
Decision No. 14,026
(October 30, 1998)
Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel
MILLS, Commissioner.--Petitioner appeals the manner in which the principal and administration of the Mount Markham Middle School (the "Middle School") responded to his daughter’s complaints of harassment by another student. Petitioner also appeals the nonselection of his daughter for membership in the National Junior Honor Society. The appeal must be dismissed.
Petitioner’s daughter, Lindsay Sue C. Andela, was a student at the Mount Markham Middle School until the end of the 1995-96 school year. In March 1995, when Lindsay was in seventh grade, a boy in the school made inappropriate sexual comments to her. After district officials investigated the incident and conducted a parent conference, the boy received an in-school suspension and detention. Petitioner considered this penalty to be inadequate. Lindsay subsequently reported that she was harassed by the boy's girlfriend ("A.N."), who was in her grade, and other students throughout the school year.
Petitioner contacted the local District Attorney's office about the harassment, and an investigator from that office sent a letter to A.N. in June 1995 advising that any future incidents would result in a review of the allegations of harassment and permit the filing of criminal charges if warranted. The letter did not, however, express any opinion as to the validity of the harassment complaint. In August 1995, petitioner also sent a letter to the Middle School principal, Rene" Rudd, asking that steps be taken to ensure a better environment for Lindsay during the next school year.
In response to petitioner's concerns, the district developed class schedules that would keep the two students separated as much as possible, and Ms. Rudd also asked teachers at the beginning of the school year to supervise and inform her of any contact between the girls. In September 1995, Lindsay reported that A.N. visited a friend at a locker near hers. Although nothing happened, Lindsay feared that problems would arise if A.N. continued to visit near Lindsay's locker. Ms. Rudd stated, in a responding letter, that she could do nothing about A.N.'s presence because she had not done anything wrong, but that Ms. Rudd was "more than willing" to talk to her if anything offensive happened. The principal also spoke to Lindsay's teachers and guidance counselor to alert them to the situation and Lindsay's feelings, and proposed changing Lindsay's locker to another location, which Lindsay declined. The homeroom teacher also volunteered to provide supervision in the hallway.
In October 1995, Lindsay reported that she was pushed down a flight of stairs at the Middle School. Neither Lindsay, two friends who were nearby nor district staff actually saw anyone push her, although Lindsay said that she had felt a shove on her back that caused her to fall. Students in the area stated that, although she fell, no one pushed her. Ms. Rudd investigated and determined that A.N. had been in class at the time of the incident, but petitioner complained that that district had paid insufficient attention to the incident.
By November 1995, Lindsay was complaining to the principal and her guidance counselor almost daily, and even called Ms. Rudd at home. In April 1996, after a meeting with the board, petitioner accepted an offer of mediation between the girls. The mediation was held on May 2, 1996, with positive results. The girls entered into a written agreement resolving their issues. From that time to the end of the school year, petitioner reported that Lindsay's learning environment improved greatly.
In May 1996, students were selected for admission to the National Junior Honor Society ("NJHS"). Lindsay applied for admission on May 13, 1996. On May 16, 1998, Ms. Rudd and the NJHS advisor notified Lindsay that she was not selected for membership.
Petitioner alleges that the district did not respond appropriately to Lindsay's complaints of harassment. Petitioner also asserts that the district's administrators humiliated Lindsay and treated her like a second class student. Petitioner further contends that the district discriminated against her in the selection for NJHS membership. Petitioner requests that I order an investigation into all cases of discrimination within the Middle School. Petitioner further requests that I direct that the NJHS be administered by "more capable" hands or, in the alternative, that the NJHS be abolished from the Middle School.
Respondent denies that it discriminated against Lindsay. Respondent maintains that the district appropriately responded to Lindsay's concerns about perceived harassment. With regard to the NJHS, respondent contends that the district followed the selection procedures outlined in the NJHS Constitution and Handbook. Respondent asserts that a five-member Faculty Council considered Lindsay's application in exactly the same manner as every other application. Respondent states that the Faculty Council voted unanimously not to select petitioner's daughter for membership, because they did not believe that she exemplified the NJHS characteristics of outstanding scholarship, character, leadership, service and citizenship.
Respondent also raises a number of affirmative defenses. Respondent contends that this appeal is untimely, as it was brought more than 30 days after all of the incidents complained of took place; that petitioner failed to exhaust administrative remedies, as he never appealed the NJHS nonselection or any other district actions to the board of education; that petitioner failed to join necessary parties as to his claims that school administrators and the principal discriminated and should be investigated and admonished, and that administration of the NJHS should be reassigned to other persons; that the matter is moot, since petitioner’s daughter completed her studies at the Middle School in June 1996; that the petition fails to state a claim; that the decision to have a chapter of the NJHS or another academic club is within the jurisdiction of the district; and that petitioner lacks standing to appeal any and all alleged incidents of discriminatory action by the board.
This appeal must be dismissed as untimely insofar as it challenges the district's response to the complaints of harassment. An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within thirty 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). In the instant appeal, petitioner challenges the district’s response to his daughter’s harassment complaints made between March 1995 and May 2, 1996, the date of the mediation between the two students. On that date, the girls entered into a voluntary written agreement to resolve the situation, and petitioner agrees that, after the mediation, "the harassment was nearly halted and Lindsay’s learning environment improved greatly." Therefore, as to the harassment issue, the last date of any incident complained of would be prior to May 2, 1996, more than 30 days before this appeal was commenced. Petitioner has failed to demonstrate good cause for commencing this appeal after the expiration of this 30-day period. Thus, petitioner's claims regarding harassment must be dismissed as untimely.
Petitioner's claims concerning the NJHS are timely. Although the selection decision was made on or about May 16, 1996, more than thirty days prior to commencement of this appeal on July 5, 1996, the NJHS Constitution and Handbook expressly contemplate an appeal to the principal and then, if necessary, to the board of education (seeinfra). Petitioner sent a letter to Ms. Rudd on May 20, 1996 asking why Lindsay was not selected, which was answered by letters dated May 24, 1996 and June 4, 1996. As this appeal was commenced on or about 30 days after receipt by petitioner of the June 4, 1996 response letter, I will not dismiss this portion of the appeal as untimely.
Petitioner's claims regarding NJHS selection, however, must be dismissed for failure to exhaust administrative remedies. The local board of education is authorized under the NJHS Constitution to review selection decisions of the Faculty Council after an initial appeal to the principal (see, Appeal of Andela, 36 Ed Dept Rep 178; NJHS Constitution at Article V, "3; NJHS Handbook, "Frequently Asked Questions" at " 6). The record reflects that, although petitioner wrote to the principal on May 20, 1996 protesting Lindsay’s nonselection, which may be considered an appeal to the principal, there is no showing whatsoever that petitioner appealed the nonselection decision to the board of education. There is similarly no showing that petitioner's challenge to the district's NJHS selection procedures or his proposal to abolish the NJHS and establish an academic club in its place were ever presented to the board. Failure to exhaust administrative remedies requires dismissal of these claims (See, Appeal of Snetzko, 37 Ed Dept Rep 264).
The petition must also be dismissed insofar as it seeks relief against any party other than the board of education as a whole, because petitioner has failed to join the principal, superintendent or any other member of the school or district administration as a party in this appeal. Petitioner requests that I order an investigation into all cases of discrimination in the Middle School, and that "anyone within the administration" who has shown discrimination or acted in a biased manner should be admonished. Petitioner further requests that administration of the NJHS be placed in "more capable hands," implicitly requesting that the program be removed from the control of the persons now administering the program. It has long been recognized that a party whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a party (Appeal of Schuler, 37 Ed Dept Rep 512; Appeal of Krantz, 37 id. 257). A request for investigation of the actions of various individuals, public admonishment and reassignment of duties would unquestionably affect the rights of those involved, and such persons have the right to be identified and included as parties to the appeal.
In light of the foregoing disposition, I will not address the parties' remaining contentions.
THE APPEAL IS DISMISSED.
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