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Decision No. 13,573

Appeal of JEANNINE G. WELLS (a.k.a. Wendy McGregor Wells), on behalf of ASHLEY M. WELLS and RORIE J. WELLS, from action of Larry Crumb, Head Bus Driver, and Edmund P. Backus, Superintendent, of the Hamilton Central School District regarding student harassment.

Decision No. 13,573

(March 13, 1996)

Matthew R. Fletcher, Esq., attorney for respondents

MILLS, Commissioner.--Petitioner appeals the treatment of her children, Ashley and Rorie, by the head bus driver, Larry Crumb, and the superintendent, Edmund P. Backus, ("respondents") of the Hamilton Central School District. The appeal must be dismissed.

Petitioner alleges that respondents harassed her children and discriminated against them because she raised concerns about district transportation practices at a school board meeting. She states that a school bus driver, at the direction of respondent Crumb, told her children that they must board their school bus at the designated pickup point and that they could not cross the road to board the bus as it returns down the road. She specifically objects to the manner in which the bus driver conveyed this information to her children, which she asserts made them feel as if they were being disciplined. She also alleges that the policy is discriminatory because other children cross roads to board school buses. Petitioner also asserts that her children's bus driver intentionaly drove past them at the bus stop in retaliation for her objections to respondents' transportation policies and that her daughter was required to act as a crossing guard at a dangerous location. Petitioner seeks a determination that respondents Crumb and Backus have maliciously discriminated against her children. Respondents contend that petitioner's claim is untimely and that she has failed to demonstrate a legal right to relief.

As a threshold matter, I will not consider the material added by petitioner in the reply which is not responsive to respondents' answer. In her reply, petitioner makes further allegations and requests additional relief. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14), not to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Crawmer, 35 Ed Dept Rep 206; Appeal of Aarseth, 33 id. 522; Application of Verity, 31 id. 485).

In addition, I cannot consider the video tape provided by petitioner, because she did not provide a copy to respondents. Section 275.8 of the Commissioner's regulations specifically states, "A copy of the petition, together with all of petitioner's affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . ."

As a threshold matter, petitioner's claim must be dismissed because it is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). All actions forming the basis of petitioner's complaint occurred more than 30 days prior to the filing of this appeal, and petitioner offers no excuse for the delay. Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it must be dismissed on its merits because petitioner fails to demonstrate that her allegations form a basis for relief. Section 275.10 of the Commissioner's regulations requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner has not provided any evidence that she has a legal right to relief arising from respondents' alleged actions.

Moreover, the relief which she seeks -- a determination that Larry Crumb and Edmund P. Backus have maliciously discriminated against her children -- is declaratory in nature. The Commissioner does not issue declaratory rulings in appeals brought pursuant to Education Law '310 (Application of Marshall, 33 Ed Dept Rep 26; Appeal of Heizman, 31 id. 387).