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Decision No. 13,457

Appeal of ROBERT SKATES, on behalf of his son, SEKOU, from action of the Board of Education of the City School District of the City of Ithaca, regarding civil rights.

Appeal of ANTHONY POOLE, on behalf of his son, A.J. "ZIMBABWE", from action of the Board of Education of the City School District of the City of Ithaca, regarding civil rights.

Decision No. 13,457

(July 20, 1995)

Bond, Schoeneck & King, Esqs., attorneys for respondent, R. Daniel Bordoni, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal the failure of the Board of Education of the City School District of the City of Ithaca ("respondent") to discipline school district personnel for alleged civil rights violations. Since the appeals involve related facts and law, I am consolidating them for decision. The appeals must be dismissed on procedural grounds.

On January 21, 1994, petitioners' sons, Sekou and Zimbabwe, attended a dance held inside at respondent high school. Ms. Newton, a teacher, observed Sekou wearing a long winter coat at the dance for approximately two hours. Ms. Newton also observed Sekou use the telephone four times during the evening. Then, Ms. Newton observed Zimbabwe arrive and immediately enter the bathroom with Sekou. Ms. Newton notified Ms. Posner, vice principal, of her observations, and her suspicion that drugs might be involved. Mr. Pullano, another teacher, escorted Sekou and Zimbabwe out of the bathroom where he and Ms. Posner searched them. No illicit drugs were found.

Petitioners subsequently sought the discipline of Ms. Newton, Ms. Posner and Mr. Pullano for an alleged improper search. Respondent investigated and on July 13, 1994, the superintendent informed petitioners that disciplinary action was not currently warranted. Petitioners filed an appeal with the State Division of Human Rights and the Commissioner of Education.

Petitioners assert that Newton, Posner and Pullano violated respondent's rules by searching Sekou and Zimbabwe. Petitioners seek to have me order respondent to take disciplinary action against Newton, Posner and Pullano for alleged violations of their sons' civil rights. Respondent contends that the appeals must be dismissed for failure to join necessary parties and because petitioners have elected another forum in which to raise their civil rights claims.

When an individual's rights may be affected by a determination in an appeal brought pursuant to Education Law '310, that individual must be joined as a party (Appeal of Smith, 34 Ed Dept Rep 346; Appeal of Cardinal, 34 id. 76; Appeal of Sanfilippo, 33 id. 500). Petitioners request that disciplinary action be taken against Ms. Newton, Ms. Posner and Mr. Pullano. However, neither Ms. Newton, Ms. Posner nor Mr. Pullano have been joined as parties. Accordingly, the appeals must be dismissed.

Moreover, the record shows that petitioners filed complaints with the New York State Division of Human Rights alleging discrimination on the basis of race -- the same claims made in this proceeding. According to the record, those complaints were still pending at the time this appeal was filed. Because petitioners have already chosen a forum in which to litigate their claims, they may not relitigate the same issues in this proceeding (Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439; Appeal of Bolecek, 26 Ed Dept Rep 154).

In light of the foregoing, I do not reach the merits of petitioners' claims.