Appeal of M.S., on behalf of his sons B.S., M.S., Jr. and R.S., from action of the Board of Education of the Webutuck Central School District regarding student discipline.

Decision No. 15,733

(April 3, 2008)

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristen Amodeo Lanchantin, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Webutuck Central School District (“respondent”) to ban his son, R.S., from school property.  The appeal must be dismissed.

Petitioner’s three sons, B.S., M.S., Jr. and R.S., attend school in the Rhinebeck Central School District (“Rhinebeck”).  On February 9, 2007, petitioner and R.S. attended a basketball game between Rhinebeck and Webutuck at Webutuck High School.  One of petitioner’s other sons participated in the game.

By letter dated February 23, 2007, Webutuck’s superintendent notified petitioner that an incident occurred after the game wherein certain Rhinebeck students, including “[petitioner’s] son,” blocked the drive to the school entrance and were obnoxious and resistant.  He informed petitioner that “[a]s a result of his participation in this incident, your son will no longer be a welcome guest at any Webutuck home event.”  The superintendent sent copies of this letter to the county sheriff, the Rhinebeck and Webutuck high school principals and a member of the regional athletic league.

By letter dated February 28, 2007, petitioner requested that the superintendent retract his February 23, 2007 letter.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 2, 2007.

Petitioner claims, interalia, that the superintendent’s decision to ban any of his sons from attending events at Webutuck schools was arbitrary and capricious.  Petitioner also argues that the superintendent lacked the authority to take any action against any of his sons because he had no personal knowledge of their involvement in the February 9, 2007 incident, that the superintendent’s use of the phrase “your son” in his February 23, 2007 letter was “arbitrary” as it “could be used in an inappropriate manner” against any of his three sons, and that the superintendent acted “irresponsibly” and “maliciously” in circulating his February 23, 2007 letter.  Petitioner requests a determination that his sons are entitled to attend sports events held at respondent’s school district.

Respondent argues that the appeal must be dismissed for improper service and failure to state a claim upon which relief may be granted.  Respondent also maintains that R.S.’s actions violated its code of conduct and that the decision to prohibit R.S. from attending any future events at respondent’s schools was within the superintendent’s discretion.

I must first address two procedural issues.  After respondent submitted an affidavit in opposition to petitioner’s request for interim relief, petitioner submitted his own affidavit in response.  Although served on respondent by mail before respondent served its answer and not labeled a reply, it appears that petitioner may have meant this document to serve as a reply, and respondent does not object to treating it as such (seeAppeal of Ramroop, 45 Ed Dept Rep 473, Decision No. 15,385; Appeal of Trapani, 40 id. 653, Decision No. 14,576).  However, respondent does contend that the document must not be considered as it raises new facts and issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply document, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondent’s affidavit in opposition to petitioner’s request for interim relief.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]).

Petitioner submitted an affidavit of personal service stating that the superintendent was served with the petition when a copy was left with “a clerk” on March 22, 2007.  However, respondent claims that neither the district clerk nor the superintendent was actually served.  Respondent submitted an affidavit from the district treasurer stating that on March 22, 2007, a woman entered her office and handed her an envelope without identifying its contents or asking whether she was authorized to accept service.  The treasurer’s affidavit also states that she is not authorized to accept such service.  Therefore, the appeal must be dismissed for improper service.

Although I am constrained to dismiss this appeal on procedural grounds, I am compelled to comment on the penalty imposed by the district in this case.  Pursuant to Education Law §1709(2) and (33), a board of education has the authority to establish rules and regulations concerning order and discipline in the schools (Appeal of Oliver, 42 Ed Dept Rep 217, Decision No. 14,829; Appeal of Havens, 42 id. 13, Decision No. 14,758).  In addition, Education Law §2801 mandates that a board of education adopt a code of conduct addressing the “maintenance of order on school property, including a school function” and that such code govern the conduct of visitors.  Respondent adopted a code requiring that “all persons on school property or attending a school function ... conduct themselves in a respectful and orderly manner” and prohibiting the refusal to “comply with any reasonable order of identifiable school district officials performing their duties.” 

While a board of education has considerable discretion in establishing rules and regulations concerning order and discipline, when imposing penalties for the violation of such rules, a board must act rationally, reasonably and in accord with district policy.  In this case, respondent imposed a permanent restriction on R.S.’s ability to attend any future events at Webutuck.  Such penalty exceeded those permitted by respondent’s own code, which envisions only directing visitors who violate the code to leave school premises and, if necessary, contacting local law enforcement officials.

Moreover, when taken to its logical conclusion, such a permanent restriction could mean that, as a public high school student, R.S. could not attend any future school event or competition on Webutuck grounds, even if R.S. were a participant in such event.  In addition, should R.S. become a resident of respondent’s district as an adult, he would be banned from participating in activities on Webutuck grounds, including participating in the school-related events and activities of his own children or family members, or perhaps voting on Webutuck premises.  Under the circumstances presented in this appeal, such a result is extreme and could not be considered a rational exercise of discretion.

Nothing herein should be interpreted as tolerating inappropriate conduct on school grounds by visitors.  When such conduct occurs, school district officials are encouraged to seek the assistance of law enforcement and/or the courts where necessary to ensure the safety of students, staff and/or school property.

THE APPEAL IS DISMISSED.

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