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Decision No. 12,880

Appeal of THOMAS E. BUCKLEY, KURT STAFFORD, and SHARON BARANELLO from action of the Board of Education of the Lafayette Central School District, relating to student discipline.

Decision No. 12,880

(January 19, 1993)

Hancock & Estabrook, Esqs., attorneys for respondent, Renee L. James, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from the refusal of respondent Board of Education of the Lafayette Central School District to take action against certain faculty members concerning an incident involving petitioners' daughters. The appeal must be dismissed.

Prior to March 25, 1992, each petitioner had a daughter enrolled in the same third-period physical education class taught by Kristine Terrillion. Ms. Terrillion claims that she had difficulties with petitioners' daughters during the 1991-1992 school year because they disrupted class while she was talking, did not pay attention, and were insubordinate.

On March 23, 1992, Ms. Terrillion met with Kathleen Swisher, a school guidance counselor, to discuss these problems. According to their affidavits, Ms. Terrillion and Ms. Swisher wanted to resolve the situation without resorting to disciplinary measures, and decided to conduct what they describe as a "class discussion" on March 25, 1992.

At this point the accounts of the parties diverge widely. Petitioners claim that on March 25, Ms. Terrillion and Ms. Swisher conducted a "kangaroo court." Petitioners claim that for nearly one hour their daughters were the target of humiliation and ridicule, during which time their classmates were encouraged by Ms. Terrillion and Ms. Swisher to make negative and derogatory comments about them, with no opportunity to interrupt or speak in their own defense. Petitioners claim that this was a form of disciplinary action not authorized by school policy and amounted to psychological harassment resulting in depression, withdrawal, anti-social behavior, and a drop in school performance. Petitioners request that I order respondent district to apologize to their daughters, and to make a written commitment that this "punishment technique" will not be used again within district schools.

The answering papers present a substantially different version of events. The affidavits of Kristine Terrillion and Kathleen Swisher set forth incidents of insubordination, disruption, and talking in class prior to March 1992. Their affidavits stress that they met on March 23 because they wished to avoid any formal disciplinary measures, and decided to hold an informal class discussion on March 25, 1992. Their affidavits state that the "problem-solving discussion" was not intended as a punishment session, and that students were not allowed to make rude, negative, or derogatory comments about other students. Ms. Swisher's affidavit states that there was no mention by herself or Ms. Terrillion that the purpose of the discussion was to punish or single out a particular student. In addition to generally denying the claims of the petition and presenting their own factual claims, respondent raises the affirmative defenses that the petition fails to state a claim and that the petition is untimely.

As a threshold matter, I do not find that the petition is insufficient to state a claim, nor do I find that the appeal is untimely. Respondent claims that the board of education made a final determination not to pursue this matter on April 9, 1992, and claims that it communicated that decision to petitioners on April 10. The April 10 letter, however, merely reports that the superintendent discussed his investigation with the board during an executive session on April 9, and further states that the superintendent would be willing to meet with one of the petitioners at a mutually convenient time. It appears that petitioners met in executive session with the board on May 12, and that on May 28 the superintendent sent a letter stating, among other things, that the board of education "considers this matter closed." Accordingly, the time to appeal began to run on May 28, and this appeal, commenced on June 15, 1992, was timely.

However, the appeal must nevertheless be dismissed because petitioners bear the burden of proving the factual basis for their claim, and they have failed to do so in this matter (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150; Appeal of Bartowski, 25 id. 52). Under the regulations governing appeals, the proof supporting a claim must be verified (8 NYCRR ''275.5, 275.10, 276.2[d]). Although petitioners have in form complied with these regulations, they have only supplied the version of events which they have obtained second-hand from their children. The petition was sworn to by Thomas E. Buckley, Kurt Stafford, and Sharon Baranello, parents of the students involved, who were admittedly not present at the March 25 physical education class. There are no affidavits or other forms of sworn proof from the students themselves. Respondent, on the other hand, has set forth the sworn statements of the persons actually involved in the events of March 25, and petitioners have not rebutted those accounts with affidavits attesting personal knowledge. Moreover, petitioners' reliance on newspaper accounts to prove their case is misplaced, since newspaper articles do not constitute evidence of the truth of statements contained in them (Appeal of Toftegaard, 25 Ed Dept Rep 159; Matter of Freis, 23 id. 47; Matter of Norden, 23 id. 94). Taken as a whole, the material presented by petitioners fails to establish the facts necessary to demonstrate a clear legal right to the relief requested (Application of Summerville, 27 Ed Dept Rep 46; Appeal of Taylor, 27 id. 179).