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Decision No. 14,583

Appeal of J.T. and M.T., on behalf of their daughter K.T., from action of the Board of Education of the Albion Central School District regarding student discipline.

Decision No. 14,583

(June 12, 2001)

Oshlag, Saleh & Earl, L.L.P., attorneys for petitioners, Kevin D. Earl, Esq., of counsel

David W. Lippitt, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Albion Central School District ("respondent") to bring charges under Education Law "3214 against two students adjudicated juvenile delinquents.  The appeal must be dismissed.

In April 2000, the Orleans County Family Court determined that two Albion High School students, J.R. and E.S., had engaged in sexual conduct with petitioners" eight year-old son. Consequently, J.R. and E.S. were adjudicated juvenile delinquents and placed on probation for two years. As conditions of their probation, J.R. and E.S. were directed, among other things, to attend school, obey school rules and regulations, and refrain from any contact with petitioners" family. Specifically, J.R. and E.S. were ordered to maintain a distance of at least 200 yards from petitioners" family, unless it was necessary to be closer in a school setting, in which case they were instructed to "be as distant and uncommunicable [sic] as possible."

Petitioners" daughter is a junior at Albion High School ("Albion"). By letter dated January 8, 2001, petitioners requested that respondent suspend J.R. and E.S. from participating in regular classroom instruction at Albion, asserting that their very presence at the school posed a danger to the health, safety and welfare of their daughter, as well as to other students. In support of their position, petitioners submitted letters from three of their daughter"s friends, a letter from their daughter and a letter from their daughter"s therapist describing the detrimental impact J.R. and E.S."s presence have on her.

By letter dated January 17, 2001, respondent"s attorney advised petitioners that respondent"s authority to impose additional limits and restrictions on J.R. and E.S. was constrained by the Family Court order, and that the district lacked standing to appeal or modify that order. Moreover, he stated that the Family Court was fully aware that J.R. and E.S. and members of the petitioners" family might attend the same school, and did not prevent them from returning to Albion. Respondent"s attorney suggested that petitioners direct their concerns regarding J.R. and E.S. to the "Court and/or Probation Department."

In this case, respondent states that, to its knowledge, none of the conduct resulting in the juvenile adjudication occurred on district property or at district- sponsored events, and further that neither J.R. nor E.S. has engaged in any harassing, threatening or inappropriate physical contact toward other students on district property or at district-sponsored events. Although each student has a disciplinary referral in his file, neither of those referrals involved harassing, threatening or inappropriate physical conduct. Respondent states that it had not received any specific complaints that J.R. or E.S. had engaged in any inappropriate contact or behavior in the presence of petitioners" daughter. Respondent states that although petitioners" daughter approached Albion"s principal following a student assembly in the fall of 1999 complaining that J.R. had been seated behind her during the assembly, she did not state that J.R. had engaged in any inappropriate behavior towards her.

Petitioners request that the district commence disciplinary proceedings to suspend J.R. and E.S. from regular classroom instruction to prevent them from interacting with any other students in the district, including their daughter.

Respondent contends that this appeal should be dismissed for failure to join J.R. and E.S. as necessary parties and because petitioners do not have standing to challenge its determination. Respondent further argues that, because its district was not a party to the Family Court proceeding, it lacks authority to modify the conditions of probation and that the Commissioner of Education, likewise, has no jurisdiction in this matter. Lastly, respondent contends that the Family Court order and conditions of probation constitute collateral estoppel against respondent, preventing it from removing J.R. and E.S. based upon the facts and circumstances resulting in their adjudication as juvenile delinquents.

I will first address the issue of standing. It is well settled that an individual may not maintain an appeal pursuant to Education Law "310 unless he is aggrieved in the sense that he has suffered personal damage or injury to his rights (Appeal of J.K. and M.B., 40 Ed Dept Rep ___, Decision No. 14,500; Appeal of Shabot, 35 id. 289, Decision No. 13,544; Appeal of Goloski, 34 id. 565, Decision No. 13,410). Petitioners assert that respondent"s refusal to suspend J.R. and E.S. from Albion has had a deleterious effect on their daughter. By virtue of the harm petitioners allege their daughter has suffered, I find that they have standing to bring this appeal.

However, this appeal must be dismissed on procedural grounds for failure to join necessary parties. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Holliday, 40 Ed Dept Rep ___, Decision No. 14,549; Appeal of Armella, 40 id. ___, Decision No. 14,525; Appeal of Majka, 40 id. ___, Decision No. 14,497). Since a decision in favor of petitioners would potentially affect their status at Albion, J.R. and E.S. are necessary parties to this proceeding. As such petitioners were required to name J.R. and E.S. as respondents and personally serve them with a copy of the petition and notice of the petition (8 NYCRR "275.8; Appeal of Holliday, supra).

The appeal must also be dismissed on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Schiavi, 40 Ed Dept Rep __, Decision No. 14,569; Appeal of Finch, Pruyn & Company, Inc., 40 id. __, Decision No. 14,534). In this case, the conduct that resulted in the adjudication of J.R. and E.S. as juvenile delinquents is deplorable. However, I cannot find that the district abused its discretion in refusing to suspend these students.

There is no evidence in the record to indicate that J.R.'s or E.S.'s attendance at Albion poses an actual danger to the health, safety and welfare of Albion students (Appeal of Latterell, 35 Ed Dept Rep 487, Decision No. 13,608; Appeal of Mangaroo, 33 id. 286, Decision No. 13,050; Appeal of Pollnow, 21 id. 291, Decision No. 10,687). Neither J.R. nor E.S. has taken any action to harass, threaten or make physical contact with petitioners" daughter or any other student. Nor is there evidence that they have violated the limitations set forth in the Court order. In the event that there is, in fact, a violation of the order or school rules, respondent can bring charges, or, if appropriate, petitioners can return to Family Court to seek enforcement of the order. While it is indeed regrettable that petitioners' daughter is forced to revisit the emotional pain caused by the conduct of J.R. and E.S. each time she sees them at school, the mere presence of these students, without more, does not constitute a sufficient basis to compel the district to suspend them for endangering the health and safety of petitioners' daughter. This is especially true in view of the Court"s obvious intention to return these students to school, notwithstanding their juvenile delinquent status. In the absence of any specific improper acts by J.R. or E.S. directed against petitioners' daughter, an order of the Commissioner compelling the district to bring disciplinary action against them is not appropriate.

In light of the foregoing, I need not address the parties" remaining contentions. However, I direct school district personnel to be vigilant to ensure that J.R. and E.S. comply with the distance limitations set forth in the Court order, and with all school rules and regulations. I,

likewise, urge district personnel to be especially sensitive to the needs of petitioners" daughter in light of this difficult situation.

THE APPEAL IS DISMISSED.

END OF FILE