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Decision No. 13,063

Appeal of ROBERT and MICHELLE ANDERSON on behalf of their children Travis, Ashley and Shelby, from action of the Board of Education of the Liverpool Central School District regarding disciplinary action against a teacher and an intra-district transfer.

Decision No. 13,063

(December 8, 1993)

Devorsetz, Stinziano, Gilberti & Smith, P.C., Esqs., attorneys for petitioners, Laura L. Spring, Esq., of counsel

O'Hara & O'Connell, Esqs., attorneys for respondent, Joseph G. Shields, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent board of education's refusal to initiate disciplinary action against a teacher and grant their children intra-district transfers to a new school. The appeal is dismissed.

Petitioner, Michelle, believing she had been asked by Ms. Madonia, a sixth grade teacher, to explore options for improving computer facilities at the elementary school, began an investigation of the status of such facilities. In preparation for an April 17, 1993 presentation to the board of education, petitioner requested that the teaching assistant in charge of the computer lab provide her with an itemized list of the lab's needs for presentation to the board. The building principal was informed of this request, and a meeting of the computer committee was scheduled for April 16, 1993 to discuss the request.

On April 15, 1993, a teacher, Ms. Beck, spoke with petitioner Michelle regarding the computer lab at the Craven Crawford Elementary School. The record reflects an enormous discrepancy in what transpired in that conversation. Petitioners assert that Ms. Beck informed petitioner that unless she "backed off" her involvement in the computer lab, there would be retribution against her children. Ms. Beck asserts that petitioner Michelle expressed ambivalence in proceeding with the matter before the board of education and was concerned about retribution against her children.

On April 16, 1993, petitioner Michelle met with the principal and they discussed Ms. Beck's alleged threats against her children. The principal informed the superintendent of the alleged threats, and an investigation was commenced on April 19, 1993. On April 28, 1993 petitioners, with their attorney, met with Ms. Beck, the president of the teachers' union and Dr. Martin, the director of elementary education. Petitioners expressed their concerns and Ms. Beck responded. Ms. Beck apologized to petitioner for conveying what was perceived by petitioner Michelle as a threat to her children. Dr. Martin emphasized the district's intolerance for retaliatory tactics against students, and the principal was to review this with staff. Dr. Martin assured petitioners that there was no reason for Ms. Beck to interact with their children, and the principal was told to instruct teachers not to pressure parents to accomplish tasks or projects which should be completed by district personnel.

On May 24, 1993 respondent board conducted a hearing to determine whether there was probable cause for bringing charges against Ms. Beck pursuant to Education Law '3020-a. The board determined no probable cause existed and petitioners were so notified by letter dated June 10, 1993.

On June 14, 1993, petitioners asked that a parent/teacher conference report be removed from their son's student folder. They also requested that all three of their children be transferred from Craven Crawford Elementary School to another elementary school in the district. In a letter dated June 16, 1993, petitioners were informed of the board's decision to remove the report from their son's folder and deny the transfer request. This appeal followed.

Petitioners seek to have me compel respondent to bring disciplinary charges against Ms. Beck pursuant to Education Law '3020-a. They also seek to have their children transferred to another elementary school. Respondent contends the board had a reasonable basis to conclude that disciplinary action against Ms. Beck was unwarranted. Respondent further asserts that the decision to deny petitioners' transfer request was consistent with school district policy.

Concerning petitioners' request that I order disciplinary charges be brought against Ms. Beck, a board of education has broad discretion in determining whether disciplinary action is warranted (Appeal of Allert, 32 Ed Dept Rep 538; Appeal of Mitzner, 32 id. 15; Appeal of Magee, 30 id. 479). However, there must be a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Mitzner, supra; Appeal of Kantor, 31 Ed Dept Rep 319). Petitioners submit only their assertion that Ms. Beck threatened their children. Without more than this assertion, petitioners fail to meet their burden to establish the facts upon which they seek relief (8 NYCRR '275.10; Appeal of Mitzner, 32 Ed Dept Rep 536; Appeal of Keller, 32 id. 47; Appeal of Singh, 30 id. 284). Based on my review of the record before me, I conclude that respondent's determination not to bring disciplinary action was reasonable.

Regarding petitioners' transfer request, Education Law '1709(33) authorizes a board of education to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Appeal of Joannides, 32 Ed Dept Rep 278; Matter of Older, et al. v. Board of Ed., 27 NY2d 333). Moreover, in the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert den 382 US 905). Accordingly, decisions regarding intra-district transfers will be overturned only when there is a clear showing that the board's action was arbitrary, capricious or contrary to sound educational policy (Appeal of Joannides, supra; Appeal of Goldup, 30 Ed Dept Rep 477).

Respondent's policy regarding intra-district transfers authorizes such transfers upon evidence that it is in the best interests of the child or children involved. Petitioners offer conclusory assertions that presume the necessity of transferring their children. However, petitioners did not demonstrate how the transfer was in the best interests of their children. In fact, the record reflects that petitioners' children were doing well in the current setting. Therefore, there is no basis for concluding that respondent's transfer determination was arbitrary, capricious or contrary to sound educational policy. Because petitioners' claims are based on speculation, petitioners have failed to meet their burden of establishing the facts upon which relief may be granted (8 NYCRR 275.10; Appeal of Parrish, et al., 32 Ed Dept Rep 261; Appeal of Verity, 31 id. 485), and the appeal must be dismissed.