Appeal of ANONYMOUS from action of the Board of Education of the Mamaroneck Union Free School District and Paul R. Fried, Superintendent, regarding denial of access to district property.

Decision No. 15,931

(June 23, 2009)

Brad A. Stuhler, Esq., attorney for petitioner

Ingerman Smith, L.L.P., attorneys for respondents, Emily J. Lucas, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Mamaroneck Union Free School District (“board”) and Superintendent Paul R. Fried (collectively, “respondents”) to ban her from attending her children’s home athletic events.  The appeal must be dismissed.

On December 12, 2008, I sustained a previous appeal brought by petitioner in which she challenged respondents’ March 20, 2008 decision to ban her from district property (Appeal of Anonymous, 48 Ed Dept Rep ___, Decision No. 15,855 [“Anonymous I”]).  The facts and procedural history underlying both appeals are set forth in Anonymous I and will not be repeated here.

In Anonymous I, I found that respondents’ imposition of a total ban on petitioner’s access to district property was not “reasonably and narrowly limited in scope” or necessary for the protection of the district’s staff and students.  I annulled the ban and ordered that, “pending the resolution of the disciplinary charges against petitioner, respondents may continue to impose reasonable restrictions on petitioner’s access to district property in accordance with this decision.”

By email to the district’s assistant superintendent (“assistant superintendent”) dated January 21, 2009, petitioner requested permission to attend several high school events, including her children’s home lacrosse games and track meets.  In a January 26, 2009 email, the assistant superintendent granted petitioner’s request to attend a number of events, including a college information night, senior musical, senior athletic dinner, senior family celebration, senior prom and graduation.  However, the assistant superintendent denied petitioner’s request to attend other events, including all home lacrosse games and track meets.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 3, 2009.

Petitioner argues that respondents’ imposition of a “total ban” on her attendance at her children’s home athletic events is arbitrary and capricious, bears no nexus to the disciplinary charges pending against her, and violates my December 12, 2008 decision and order.  Petitioner maintains that, prior to respondents’ January 26, 2009 decision, she was never denied access to “any of her children’s sporting events” and that respondents’ decision is evidence of its “abusive campaign of harassment and intimidation” against her, which also includes assigning her to an office without adequate heat, ventilation and lavatory facilities.  Petitioner seeks a declaration that this ban is “null and void” and reinstatement of the limited restrictions on her access to district property that were in effect until March 20, 2008.

Respondents contend that petitioner fails to state a claim upon which relief may be granted.  Respondents also maintain that their decision is reasonable, within their authority and consistent with my decision in Anonymous I.

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 its schools (Appeal of Anonymous, 48 Ed Dept Rep ___, Decision No. 15,855; Appeal of M.S., 47 id. 396, Decision No. 15,733; Appeal of Oliver, 42 id. 217, Decision No. 14,829).  A board of education also has discretion regarding access to school property (see Education Law §414; Lloyd v. Grella, et al., 83 NY2d 537).  As I noted in Anonymous I, while courts have upheld restrictions on the access of district employees and school board members to school grounds, such restrictions have been “partial” and “limited in nature” (seePearlman v. Cooperstown Cent. School Dist., 2003 WL 23723827 [NDNY]; Silano v. Sag Harbor Union Free School Dist. Bd. of Educ., 42 F3d 719, certden 515 US 1160).

The record in this case indicates that respondents have denied petitioner access to home lacrosse and track events.  Petitioner argues that this ban is “precisely what the Commissioner’s decision [in Anonymous I] rejected.”  I disagree.  Anonymous I involved a total and complete ban on petitioner’s access to school property at any time for any reason.  I found this ban to be unreasonable as it was unlimited in scope and “prohibit[ed] petitioner from entering district property for any reason ... regardless of whether her presence at any particular activity or event bears any relation to the disciplinary charges pending against her.”  In the instant appeal, however, it is undisputed that, while respondents have denied petitioner’s access to certain events and activities, they have also allowed her to attend numerous events on district property.

Respondents note that the disciplinary charges pending against petitioner include “berating, harassing, threatening and/or intimidating behavior ... toward several district employees.”  As a result, respondents explain that they have thoroughly reviewed each of petitioner’s requests and have been “extremely careful and thoughtful in trying to provide a safe atmosphere for all individuals on school grounds while balancing petitioner’s requests to access the district’s property under the circumstances.”  Specifically, respondents state that they have permitted petitioner to be on district grounds “during events for which there is adequate supervision and administrators present in a highly supervised environment.”  Respondents explain that they denied petitioner’s request to attend home high school athletic events because such events are “ungoverned” and “district administrators are not required to be present.”  Moreover, the athletic fields to which petitioner seeks access are located “within a few hundred feet from the main entrance to the district’s high school.  [A]llowing petitioner unbridled access to athletic fields would permit petitioner to be in the presence of many of the complainants who have alleged and testified to acts of misconduct by petitioner ....” 

Finally, petitioner alleges in her reply that on March 9, 2009, a judge “granted [her] husband access to attend all school events at Mamaroneck High School in which his children are participating.  Therefore, the individual who[se] alleged conduct precipitated the district’s illegal March 20, 2008 ban ... can now himself attend all of his children’s athletic events while ... [p]etitioner cannot.”  However, petitioner submits no evidence to support this claim, nor has she produced any proof that the underlying criminal charges against her husband have been dismissed or otherwise resolved.  Moreover, as noted above, respondents have explained that the January 26, 2009 decision was based on the seriousness of the disciplinary charges pending against petitioner and the fact that she had requested permission to attend unsupervised athletic events at the high school.  There is no indication on the record before me that respondents considered the alleged actions of petitioner’s husband in their January 26, 2009 decision.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Based on the record before me, I find that petitioner has failed to meet her burden.  Accordingly, I cannot conclude that respondents’ determination was arbitrary, capricious or unreasonable.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE