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Decision No. 13,065

Appeal of MARIE ULCENA from action of the Board of Education of the Babylon Union Free School District regarding security.

Decision No. 13,065

(December 14, 1993)

Suzanne Shende, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jacob S. Feldman, Esq., of


SOBOL, Commissioner.--Petitioner appeals actions taken by officers and employees of respondent Babylon Union Free School District ("the district") in response to two incidents on April 2, 1993. The appeal must be dismissed.

On April 2, 1993 a hostile verbal exchange, which petitioner describes as racially motiviated, occurred at Babylon Junior/Senior High School ("the high school") between J.H., a white student, and C.T., a black student ("the Friday morning incident"). High school staff intervened. After speaking with their respective parents, the assistant principal sent J.H. and C.T. home for the rest of the day. He informed them that they would be permitted to return to class after he had met with their parents.

Later that day, during a lunch period, J.H. allegedly exchanged hostile words off school grounds with F.M., another black student. F.M. never reported this incident to school officials. Fearing J.H., however, F.M. telephoned petitioner's home to request "a safe way home after school." Thereupon, petitioner went to the high school to express concern for the safety of her own children, who also attended school there. That afternoon, at the school's request, several police cars patrolled during dismissal. Respondent alleges, as well, that the assistant principal and the principal were present during the dismissal. Afternoon dismissal occurred without incident.

On the evening of April 2, 1993, the high school presented a production of "The Sound of Music" to a public audience. Although he did not attend the production, C.C., another black student, was present on school property at approximately 8:00 p.m. that evening. As he left the school, C.C. spotted a group of white students, including J.H. According to C.C.,

[i]t looked like they had two things that I could see, one was like an aluminum pole or a bat, and it shone in the light. The other looked like it might be a pool stick. We started to turn around, to go back into the school, and they started walking faster.

C.C. did not report his observations to school officials. He did, however, telephone petitioner's home to request a ride. Petitioner's sons, J.U. and R.U., drove to the school to pick C.C. up. After they had left school property, the car carrying petitioner's sons and C.C. was involved in an altercation with a car of white students ("the Friday night incident"). The record indicates that petitioner's vehicle was run off the road. A fight ensued, during which the car sustained additional damage and two students, including petitioner's son J.U., were stabbed.

Respondent alleges that the Friday night incident involved 10 to 12 individuals, several of whom were students in the district and several of whom were not. J.H. was one of the district students involved. At his mother's request, the principal scheduled a meeting for April 7, 1993 to discuss the Friday night incident. The meeting was originally intended for the principal, J.H.'s mother and two other parents. On April 7, however, approximately 15 parents, including petitioner, attended the meeting. The parents expressed concern regarding security at the school. They also raised the issue of racial tension within the district. The principal advised the parents that the district would investigate the Friday night incident and assured them that "steps would be taken" to ensure their children's safety in school.

On April 12, 1993, the first day after spring break, the principal and assistant principal met individually with district students involved in the Friday night incident and their parents. Following the parent conferences and because of conflicting statements made by the students, the principal and assistant principal found they could not determine who was at fault for the Friday night incident. However, they reviewed behavioral guidelines with the students and parents, and followed each conference with a letter confirming such guidelines. With the exception of petitioner's son, J.U., each student involved in the incident agreed to

- avoid conflict and conduct himself in a non-confrontational manner

- refrain from discussing or interacting with others regarding [the Friday night] incident

- continue to remain free of any instrument which can cause injury

- notify school administration of any potential conflict or occurrences which may lead to conflict and,

- [t]o the best of his ability ... [to] exercise his influence among his peers to ensure tranquility.

The letter confirmed that in the event students were found to have violated the behavioral guidelines, they would be subject to "extensive disciplinary proceedings." Petitioner would not agree to have J.U. bound by the guidelines as presented. Instead, she insisted upon certain modifications to which the principal apparently agreed.

At a meeting on April 12, 1993, the principal and the superintendent informed the board of education that they were unable to determine who was at fault for the Friday night incident. They were also unable to conclude that the Friday morning incident precipitated the Friday night incident. Consequently, they recommended to the board that no disciplinary action be taken against any of the students involved in the Friday night incident, pending the results of investigations by local law enforcement agencies. The board adopted the administrators' recommendations, and this appeal ensued.

The petition contains a general request for permission to file additional material pursuant to '276.5 of the Regulations of the Commissioner of Education (8 NYCRR 276.5). It does not identify any specific materials. By letter dated May 21, 1993, citing the request set forth in the petition, petitioner sought permission to submit the affidavits of Melvey, St. John and Slater, pursuant to '276.5. She was subsequently advised that the affidavits could not be considered until she provided an explanation for the lateness of their submission. No explanation was forthcoming. On July 6, 1993, however, petitioner served her reply to respondent's verified answer (8 NYCRR 275.14). The Melvey, St. John and Slater affidavits were attached to the reply, along with several additional affidavits and exhibits. Petitioner made no further application to submit such material pursuant to '276.5. Consequently, she was advised that the affidavits and exhibits set forth in her reply would be considered only insofar as they were responsive to respondent's affirmative defenses (8 NYCRR 275.3; 275.14).

Having reviewed the reply materials under the applicable regulations, I find that the affidavits of Dr. Michelle Fine and Dr. Reginald Wilson must be rejected because they present new issues not raised in the petition and are unresponsive to respondent's affirmative defenses (Appeal of Taber, 32 Ed Dept Rep 346, 351). The affidavit of Carol Slater is rejected as well, because it was never signed by the affiant. I have considered the remaining affidavits and exhibits only insofar as they address respondent's affirmative defenses.

Petitioner seeks relief on a broad range of issues. First, in light of the April 2 incidents, she requests

[the Commissioner's] protection for [J.U.'s], and other students' safety, well-being, and academic potential. Petitioner requests that the Commissioner review and remedy the decision made by (the principal) on April 2, to ignore the danger posed to Black students by an organized white gang of students determined to do them harm... ("the first claim").

The petition does not identify the April 2 "decision" to which the first claim refers. Petitioner contends, however, that student J.H. "made racially charged and threatening statements in the presence of several students, claiming he would do physical violence to Black students." Presumably, it is petitioner's view that, following the Friday morning incident, the principal and assistant principal knew or should have known of J.H.'s alleged threats, that sending J.H. home did not ensure against J.H. following through on such threats and, consequently, that the Friday night incident occurred because the administrators had handled the morning incident inappropriately.

To maintain an appeal pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights (Appeal of Allert, 32 Ed Dept Rep 538, 544). While petitioner may appeal on behalf of her son, J.U., she lacks standing to assert the rights of others (id.). To the extent petitioner appeals on behalf of other students, therefore, her claims are dismissed.

Respondent contends that petitioner lacks standing regarding J.U., as well, because he was not involved in the Friday morning incident. To establish standing, a petitioner must demonstrate that "the administrative decision for which review is sought [has had] a harmful effect upon the party asserting standing" (Appeal of Taber, 32 Ed Dept Rep 346, 349). J.U. was stabbed during the Friday night incident. If, as petitioner asserts, the Friday night incident occurred because high school administrators handled the Friday morning incident negligently, there can be no question that the administrators' action had a "harmful effect" on petitioner's son. On the record before me, however, I cannot conclude that the Friday morning incident was handled inappropriately or that the high school administrators had reason to foresee the Friday night incident.

The record indicates that both the principal and assistant principal investigated after J.H. and C.T. exchanged words during the Friday morning incident. Neither administrator was able to conclude that J.H. had made threatening statements. C.T., in fact, conceded he had no personal knowledge of such threats, but stated he had been informed of J.H.'s alleged comments by a third party. J.H. denied making the statements. Following the Friday morning incident, therefore, the administrators had no cause to believe that J.H. intended to "do physical violence to Black students." As indicated, moreover, neither F.M. nor C.C. reported their subsequent encounters to school officials. Consequently, because there is no evidence that negligence by the principal caused or permitted the Friday evening incident to occur, I cannot conclude that any administrative decisionmaking on April 2, 1993 resulted in harm to J.U., and I must sustain respondent's argument that petitioner lacks standing to assert the first claim.

Throughout the petition, petitioner requests

that school officials and employees be reprimanded and disciplined for actions that were indifferent to the safety, dignity, and equality of students.

To the extent petitioner alleges discrimination by respondent's officers and employees, her claim arises under the State and Federal Constitutions, and an appeal to the Commissioner of Education is not the proper forum for litigating such questions (Appeal of Cassin, 32 Ed Dept Rep 373, 376). In any event, any officer or employee with respect to whom respondent seeks discipline is a necessary party to this proceeding (Appeal of Taber, 32 Ed Dept Rep 346, 349-350, supra). Because petitioner failed to join any officer or employee as a necessary party, her requests for discipline must be dismissed (id.).

Petitioner alleges that a high school teacher made inappropriate racial comments following the Friday morning incident. The record indicates that respondent investigated this allegation and determined there was no cause to bring disciplinary proceedings against that teacher. In a second claim for relief, petitioner asks me to review respondent's determination. Again, however, petitioner lacks standing to advance this claim. As respondent observes, the petition does not allege that the teacher's alleged comments were directed to J.U., made with regard to J.U. or, indeed, even heard by him. Petitioner has neither alleged nor established that respondent's decision not to discipline the teacher in question resulted in harm to her son (Appeal of Taber, 32 Ed Dept Rep 346, 349, supra). The second claim is, therefore, dismissed.

Next, petitioner asks me to review respondent's " take proper action after the April 12th meeting" and to discipline the white students involved in the Friday night incident ("the third claim"). Petitioner refers to the board of education meeting at which the superintendent and principal recommended against disciplining district students involved in the Friday night incident, pending local law enforcement investigations. Because the incident occurred off school property, the local police had primary jurisdiction over the matter. Respondent's administrators, moreover, had been unable to determine who was at fault for the incident. On the record before me, therefore, I find that respondent's decision to defer to the appropriate law enforcement agencies was reasonable. The third claim is dismissed.

Finally, in her fourth claim for relief, petitioner seeks "affirmative measures" to ensure that conflicts like the Friday night incident do not occur in the future. In particular, petitioner requests "security measures...sensitivity training...and consideration of hiring more diverse staff in order to respond to the needs of the student body." Respondent, however, describes approximately 17 measures the district has taken to improve race relations following the April 2 incidents. Among other things, the principal states in his affidavit that,

j. The Human Connections Institute is implementing a parent/community/student workshop series designed to have students share their feelings and concerns and to help the community work towards reinforcing a sense of community across racial lines;

k. [He] attended a Bi-County Educators' Conference on Prejudice Reduction both for the perspective to be gained from the exchange of ideas and to enable the District to decide if there is a basis for an in-service training program;

q. The District will continue to post all professional employment advertising in publications designed to attract people of color for positions in the District.

The principal also stated that he and the superintendent are members of the Babylon Town Anti-Bias Task Force; that the district has scheduled an increase in support and counseling staff for human relations and at-risk intervention for 1993-1994; that, at the superintendent's recommendation, a human relations committee has been formed including members of the school community and the Village of Babylon to address school and community concerns regarding race relations; that a human relations club is being explored at the high school; and that established counseling groups will be continued with a special emphasis on racial matters. In light of the foregoing, I find the district has responded appropriately to the concerns petitioner raises in the fourth claim for relief. That claim is, therefore, dismissed as moot (Appeal of Allert, 32 Ed Dept Rep 538, 544-545, supra; Appeal of Dimilia, 30 Ed Dept Rep 391, 392).

Although the appeal is dismissed, respondent must remain sensitive and responsive to the issues raised herein. I encourage respondent to continue with the measures it has already begun toward improving race relations. I must observe, nonetheless, that several of the students submitting affidavits in support of the petition expressed frustration that their real concerns are not always being heard in the district. I, therefore, urge respondent to evaluate the effectiveness of its initiatives and, as necessary, to modify them to ensure that all students have an equal voice in the school community.