Appeal of A.S., on behalf of his grandson M.W., from action of the Board of Education of the Churchville-Chili Central School District regarding student discipline.

Decision No. 17,801

(December 9, 2019)

Law Office of James Cole, attorneys for petitioner, James W. Cole, Esq., of counsel

Harris Beach PLLC, attorneys for respondent, Anne M. McGinnis, Esq., of counsel

TAHOE., Acting Commissioner.--Petitioner appeals the determination of the Board of Education of the Churchville-Chili Central School District (“respondent”) to suspend his grandson M.W. (“M.W.”) from school.  The appeal must be dismissed.

This is one of three appeals challenging student suspensions arising out of the same incident (see Appeal of A.C., 59 Ed Dept Rep, Decision No. 17,799; Appeal of K.M., 59 id., Decision No. 17,800).  At all times relevant to this appeal, M.W. attended high school in respondent’s district.  On April 26, 2019, M.W. was involved in a physical altercation that broke out among several students in the high school’s cafeteria.

By letter dated April 26, 2019, the high school principal (“principal”) suspended M.W. for five days for engaging in violent conduct.  The letter additionally recommended that respondent’s superintendent schedule a hearing to address whether an additional, longer suspension would be appropriate.  The letter was delivered to petitioner’s residence but addressed to M.W.’s mother, who is petitioner’s daughter.[1]

By letter dated April 26, 2019, the superintendent scheduled a long-term suspension hearing on April 30, 2019.  The letter indicated that the superintendent had appointed a hearing officer to conduct the hearing.  This letter was likewise delivered to petitioner’s residence but addressed to M.W.’s mother.  On April 29, 2019, petitioner met with the principal to discuss the charge against M.W.

On April 30, 2019, petitioner attended the hearing with M.W.  The district submitted video surveillance footage of the altercation into evidence and called several witnesses to testify.  Ultimately, the hearing officer found M.W. guilty of the charge and recommended that he receive an additional 22-week suspension.  In a decision dated May 2, 2019, the superintendent adopted the hearing officer’s finding of guilt and suspended E.C. through January 7, 2020.  Petitioner appealed the superintendent’s decision to respondent.  By letter dated May 31, 2019, respondent upheld the superintendent’s decision.  This appeal ensued.

Petitioner raises numerous procedural objections to the long-term suspension hearing, including that he did not receive proper notice of the long-term suspension hearing; that the hearing officer deprived M.W. of his rights during the hearing; and that the hearing officer permitted the district to submit prejudicial evidence.  Petitioner also argues that the long-term suspension is excessive under the circumstances and violates the district’s code of conduct.  For relief, petitioner seeks reversal of respondent’s determination and either expungement of M.W.’s long-term suspension or modification of the penalty to conform to the district’s code of conduct.

Respondent contends that petitioner lacks standing to initiate this appeal because he is not M.W.’s legal guardian.  Respondent further argues that its determination was not arbitrary or capricious and that petitioner has failed to carry his burden of proof with respect to any of his claims.

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

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).

Here, petitioner does not purport to be M.W.’s parent, custodian, or legal guardian.  Instead, petitioner merely asserts that he is M.W.’s grandfather and that M.W. resides with him.  Although petitioner indicates that M.W.’s mother does not reside with him or M.W. and “does not even reside within the ... [d]istrict,” petitioner does not claim that M.W.’s mother has relinquished her parental rights or transferred custody of M.W. to petitioner.  Nor has petitioner submitted a reply to refute respondent’s claims that M.W.’s mother “continues to be actively involved in [M.W.’s] life and education” and that petitioner has not provided the district with documentation establishing that he is M.W.’s guardian.  Simply being the grandparent of a student does not confer standing upon petitioner in an appeal pursuant to Education Law §310 (see Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Appeal of K.M., 49 id. 244, Decision No. 16,015; Appeal of M.H., 43 id. 210, Decision No. 14,973).  Accordingly, on this record, I find that petitioner has failed to establish that he has standing to appeal respondent’s determination to suspend M.W., and the appeal must be dismissed (see Appeals of J.J., 58 Ed Dept Rep, Decision No. 17,659).[2]

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

THE APPEAL IS DISMISSED

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