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Decision No. 13,412

Appeal of LAURA EPSTEIN from action of the Board of Education of the Islip Union Free School District regarding a school board policy.

Decision No. 13,412

(May 11, 1995)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Neil Block, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal of respondent Board of Education of the Islip Union Free School District to rescind its policy concerning the tape recording of conferences, lessons and meetings. The appeal must be dismissed.

On August 24, 1993, respondent adopted policy #353 restricting the tape recording of parent/teacher/administrator conferences, student recordings of classroom lessons and meetings, unless preapproved by the teacher or administrator involved. On November 15, 1994, petitioner sought to have respondent repeal this policy. On December 20, 1994, respondent revised the policy by adding:

Exceptions to the above apply to handicapped children at Committee on Special Education meetings or meetings with staff members while discussing special education placements.

On December 21, 1994, respondent notified petitioner that her request to have the policy rescinded was denied. This appeal followed.

Petitioner asserts that policy #353 violates her constitutional rights. Respondent contends the appeal is untimely, that the Commissioner does not decide novel issues of constitutional law and that petitioner is not aggrieved by the policy and, therefore, lacks standing.

An appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). The record reflects that respondent's determination was made on December 20, 1994. Petitioner commenced this appeal on January 29, 1995, more than 30 days after the date of respondent's decision. As her excuse for the delay, petitioner claims she lacked access to information necessary to file this appeal due to the closing of school buildings during the 1994 holiday recess, and also cites pressing business commitments. However, petitioner does not establish what information she failed to have access to due to the school's closure or how this affected her ability to file an appeal. Nor does petitioner offer any explanation of how her business commitments prevented her from filing a timely appeal. Accordingly, I am not persuaded that the circumstances asserted by petitioner constitute a reason to excuse her delay in commencing this appeal. I therefore dismiss the appeal as untimely.

The appeal must also be dismissed because petitioner has failed to demonstrate any present injury or violation of her rights. She asserts no instance in which she has been denied an opportunity to tape record a conference. Instead, she seeks a declaration from me about events that she anticipates will occur in the future. The Commissioner does not issue declaratory rulings in appeals brought pursuant to Education Law '310 (Appeal of Marshall, et al., 33 Ed Dept Rep 26; Appeal of Heizman, 31 id. 387; Appeal of a Child Suspected of Having a Handicapping Condition, 30 id. 316). Petitioner's allegations are premature and, as such, are not ripe for review (Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 53; Application of a Child with a Handicapping Condition, 29 id. 245; Matter of C. St. Cyr v. NYC SD, Bd. of Ed., 27 id. 351). Accordingly, the petition must be dismissed.

Even if the appeal were not procedurally defective, I would dismiss it on the merits. Education Law '1709(2) authorizes boards of education "to establish such rules and regulations concerning the order and discipline of the they may deem necessary to secure the best educational results." It is within the board's authority to require prior approval for classroom visitation because there are times when the presence of a non-instructional adult would hamper the free and open exchange of information and discussion (Appeal of Canazon, 33 Ed Dept Rep 124). It is similarly reasonable for a school district to determine on a case-by-case basis (with the exception of CSE meetings and discussions regarding special education, Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 178) whether tape recording a conference or classroom lesson will inhibit discussion. Accordingly, I find respondent's policy to be within its authority and rationally related to the district's legitimate interest in maintaining order in the classroom.