Appeal of LAURA D. SIX, on behalf of her daughter KARA M. SIX, from action of the Board of Education of the Horseheads Central School District regarding an athletic transportation policy.

Decision No. 17,631

(April 29, 2019)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, James A. Gregory, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the policy of the Board of Education of the Horseheads Central School District (“respondent”) relating to the transportation of student-athletes to and from interscholastic athletic events.  The appeal must be dismissed.

At the time of the events described in this appeal, petitioner’s daughter (“the student”) attended respondent’s high school and was a member of the cross-country running team.  Respondent requires student-athletes and their parents or guardians to annually sign an Interscholastic Sports Eligibility Rules and Consequences and Athletic Code of Conduct agreement, which outline the rules by which student-athletes and their parents/guardians must abide in order to participate in interscholastic athletics (the “athletic code of conduct”).  Respondent’s athletic code of conduct was last updated in April 2016.

Respondent also has a separate policy relating to field trips and excursions. Effective September 29, 2016, respondent amended its Field Trips and Excursions policy (the “field trip policy”), Regulation 4531-R, which provides in pertinent part:

Student athletes/extracurricular members must travel to athletic contests/extracurricular events in vehicles provided by the District.  In rare circumstances, and with prior approval by the Athletic Director or Building Principal, a student athlete/extracurricular member may be driven to an athletic contest/extracurricular event by a parent or guardian.

At the conclusion of an athletic/extracurricular event, it is expected that the student athlete/extracurricular member will return to school with the team/club in a vehicle provided by the District.  An athlete/extracurricular member may leave with his/her parent or guardian only if the authorization below has been executed and only if approved prior to the athletic/extracurricular event.

The authorization to which the policy refers is a standardized form which parents seeking to transport their child home from an event must complete.  One of the questions posed by the form which parents must complete is: “[r]eason for the request.”

During the 2016-2017 school year, in accordance with the field trip policy, petitioner made two written requests to transport her daughter from interscholastic cross-country running meets.  Petitioner’s request concerning a meet on October 1, 2016 was denied on September 27, 2016.  Petitioner identified the “[r]eason for the request” as a “[f]amily event” located in the city where the meet was to be held.  Respondent’s athletic director denied petitioner’s request on the ground that he needed “more detailed information” and indicated that he would not approve a request involving a “family event.”  Petitioner indicated to respondent that such denial caused the student to miss a family gathering occurring in the area of the cross-country running meet.

Subsequently, on October 6, 2016 petitioner again requested approval to transport her daughter following an away cross-country running meet for a family obligation.  Petitioner copied the superintendent on the email request to express her dismay at the subjective and intrusive nature of the transportation policy.  This request for parental transportation was granted.

Petitioner made two additional transportation requests during the following school year (i.e., 2017-2018).  Although the parties present differing characterizations of the conversations surrounding the requests, the record indicates that respondent approved petitioner’s requests for parental transportation from cross country meets held on September 30, 2017 and October 7, 2017.  This appeal ensued.

Petitioner contends that respondent’s policy is arbitrary and capricious because it limits the circumstances under which a parent or guardian may transport their child from an interscholastic athletic competition and conditions such requests upon the approval of the athletic director or principal.  Petitioner does not dispute respondent’s authority to develop or implement a transportation policy, but argues that conditioning parental transportation requests on the subjective determination of the athletic director or principal, absent any written guidelines establishing such criteria, is arbitrary and capricious.  Petitioner asserts that requiring parents and/or guardians to provide a reason for taking physical custody of their child at the conclusion of an athletic event is an unreasonable invasion of privacy.  Petitioner further asserts that the field trip policy requiring the approval of the athletic director or principal conflicts with the athletic code of conduct, which merely requires parents to provide notice to the coach and does not require prior approval by the athletic director or principal.

For relief, petitioner requests that respondent amend the transportation policy contained within the athletic code of conduct “so that it aligns with[,] and does not contradict[,] other rules or expectations.”  Petitioner also requests that respondent remove the “[r]eason for the request” portion of the field trip transportation request form.

Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies, as untimely, and as moot.  On the merits, respondent argues that the field trip transportation policy is consistent with Education Law §1804(11), which permits school districts to set conditions upon the circumstances under which a parent may transport a student home from extracurricular activities.  Respondent further argues that it had a rational basis for adopting its policy; namely, negative experiences associated with a more lenient version of the policy which gave parents substantial discretion to transport students to and from extracurricular activities.

First, respondent asserts that the petition should be dismissed for failure to exhaust administrative remedies.  In support of this argument, respondent cites Appeal of James L. (39 Ed Dept Rep 482, Decision No. 14,288), in which the Commissioner dismissed a portion of the appeal challenging an athletic suspension where the district’s athletic code of conduct established an internal appeal process.  Respondent asserts that its athletic code of conduct establishes appeal procedures for decisions regarding the rules and asserts that any appeal made by an athlete must be made to the athletic director which will then result in a meeting of the athletic council, as established by the athletic code of conduct, to determine the appeal.

Generally, a board of education has the discretion to adopt rules governing appeals of district decisions and may impose timelines in connection therewith (see Education Law §§1709[1]).  The conditions for appealing an adverse district decision, including any attendant timelines, must be reasonable and clearly communicated to parents (see e.g. Appeal of Halpern and Halpern, 58 Ed Dept Rep, Decision No. 17,480; Appeal of D.O., 53 id., Decision No. 16,543 [suspension notice containing “oblique” reference to code of conduct which prescribed a district timeline for an appeal held insufficient to provide notice of a restrictive policy of administrative exhaustion]).

The record indicates that petitioner raised her concerns relating to the transportation policy with the superintendent and to the board of education at its October 20, 2016 meeting.  The record further indicates that petitioner again raised her concerns with the policy in September and October of 2017 prior to bringing this appeal.  Respondent asserts that petitioner’s failure to utilize the process in the athletic code of conduct requires dismissal of the petition for failure to exhaust administrative remedies.  However, one of petitioner’s arguments challenging the field trip transportation policy is that the portion of this policy requiring athletic director approval is not contained within the athletic code of conduct.  In fact, the athletic code of conduct, which is part of the record in this appeal, merely requires written parent/guardian permission for alternative transportation to be approved by the coach.  Moreover, the field trip policy does not impose any internal appeal requirements which must be satisfied before bringing an appeal to the Commissioner pursuant to Education Law §310.  Therefore, because the appeal procedures cited by respondent relate to the provisions of the athletic code of conduct, and the field trip transportation policy challenged by petitioner is not contained within the athletic code of conduct, I decline to dismiss the appeal for failure to exhaust administrative remedies under these circumstances.

Nevertheless, most of petitioner’s challenges to the field trip transportation policy must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

First, to the extent that petitioner claims that she was aggrieved by the adoption of the field trip transportation policy, respondent asserts that, effective January 2016, the new rule was implemented to require all student-athletes to travel to and from athletic events using district transportation, unless a parent or guardian made a request for self-transportation within 24 hours of the event and such request was granted by the athletic director or the principal.  Respondent further contends that amendments were made to the policy effective for the 2016-2017 school year to limit the number of family trip exceptions, to one per student per season, except for rare and important family activities.  As noted above, petitioner challenges the student-athlete transportation policy as amended on September 26, 2016.  Therefore, any challenge to the adoption of such policy was required to be commenced within 30 days of the adoption of such policy.  Petitioner commenced this appeal by service on respondent on November 3, 2017, more than one year after the adoption of the policy, and has provided no excuse for the delay (see 8 NYCRR §275.16; Appeal of Kehoskie, 60 Ed Dept Rep, Decision No. 16,231; Application of Goldin, 39 id., Decision No. 14,158).  Therefore, to the extent petitioner challenges this policy at the time of its enactment such claim must be dismissed as untimely.[1]

To the extent that petitioner challenges the application of the student-athlete transportation policy to her daughter, such claims are also untimely.  As noted above, the sole request which respondent denied – and, thus, the only application of the field trip policy by which petitioner was aggrieved – concerned petitioner’s request to transport her daughter from an interscholastic athletic event on October 1, 2016.  This request was denied on September 27, 2016, over a year before petitioner commenced the instant appeal.  Petitioner has not set forth any explanation, let alone good cause, in the petition for this delay (see 8 NYCRR §275.16).  Therefore, petitioner’s challenge to respondent’s September 27, 2016 denial of her request to transport the student home from a cross-country meet on October 1, 2016 must be dismissed as untimely.

To the extent petitioner claims that she was improperly required to divulge private information protected by law in the transportation request forms, the only claim that could be considered timely is the claim arising from respondent’s October 7, 2017 decision on petitioner’s request.  Such claim must nevertheless be dismissed as petitioner has not met her burden of proving a clear legal right to the requested relief.  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

At the outset, petitioner has not identified the source of the privacy rights which she claims respondent has violated.  While petitioner generally refers to a “human right to a reasonable expectation of privacy” and her “freedom of movement,” she has not identified any specific laws which respondent has violated.  More importantly, however, the transportation request form merely requests that parents identify a “[r]eason” for their request; any suggestion that parents may identify, or respondent may solicit, personal information in response to this query is speculative and not supported by the record in this case.

Moreover, petitioner’s facial challenge to respondent’s field trip policy must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Here, petitioner challenges the field trip policy in effect during the 2017-2018 school year.  In its answer, respondent avers that the student-athlete transportation policy was amended subsequent to the filing of this appeal and that this amended policy is applicable beginning in the 2018-2019 school year.  Petitioner did not submit a reply or otherwise respond to these assertions.  As such, it appears from the record that the policy challenged by petitioner is no longer in effect.  Therefore, the issue is academic and petitioner’s challenge to this superseded policy must be dismissed as moot.

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

THE APPEAL IS DISMISSED.

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