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Decision No. 14,008

Appeal of DALE PHILLIPS, on behalf of MITCH PHILLIPS, from action of the Board of Education of the Caledonia-Mumford Central School District regarding student discipline.

Decision No. 14,008

(September 4, 1998)

Jones, Skivington & Kelley, attorneys for petitioner, Peter K. Skivington, Esq., of counsel

Harris, Beach & Wilcox, LLP, attorneys for respondent, James A. Spitz, Jr., Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Caledonia-Mumford Central School District ("respondent") which, among other things, revoked the permission previously granted to her son, Mitch, to attend respondent’s schools as a non-resident student. The appeal must be dismissed.

Petitioner resides in the City of Rochester, which is outside the geographical boundaries of respondent’s school district. In September 1996, upon petitioner’s application, the district enrolled Mitch as a tuition-paying student in its high school. On January 7, 1997, the district hosted a basketball game with the Honeoye Falls-Lima Central School District in the gymnasium of its elementary school. Following the game, a fight ensued in the school’s parking lot. The district superintendent and the high school principal investigated the incident and met separately with each student to discuss his involvement in the fight. Petitioner’s son admitted his participation therein but claimed that he became involved only after someone pushed him from behind.

Following the investigation, the principal issued disciplinary letters to the students involved, informing each of the penalties imposed. The penalties varied for each student and included the imposition of five or fewer days’ academic suspension, school service, social suspension for less than one year and suspension of spectator privileges at sporting events for a period of less than one year. Petitioner’s letter, dated January 15, 1997, informed her that because of Mitch’s participation in the incident of January 7, effective February 1, 1997, the district would revoke its permission for Mitch to attend its schools as a tuition-paying student. Additionally, Mitch received a 5-day academic suspension and a 10-day suspension from all school events and activities. He was also excluded from all extracurricular activities and, until January 1, 1998, barred from all athletic or social functions within the district. Petitioner appealed this decision to respondent board and, on or about January 30, 1997, the board affirmed the decision.

On February 13, 1997, petitioner instituted the instant appeal, arguing that respondent violated Mitch’s due process and other rights under Education Law "3214 and the provisions of respondent’s handbook when it failed to afford Mitch a hearing prior to suspending and, ultimately, expelling him from school. Petitioner also contends that the disciplinary decision was illegal and arbitrary inasmuch as it was rendered without a full investigation of the facts. Finally, petitioner argues that the penalty imposed against Mitch is excessive.

Respondent counters that the school authorities properly suspended Mitch in accordance with Education Law "3214 and that Mitch was not entitled to a hearing prior to being suspended. Respondent maintains that the decision to suspend Mitch is supported by competent evidence and that the penalty imposed is appropriate. On February 27, 1997, petitioner’s request for a stay of respondent’s decision pending the ultimate determination of this appeal was denied.

While the appeal before me was pending, on April 11, 1997, petitioner joined with the parents of several students of the Caledonia-Mumford High School and filed an Article 78 petition against respondent board and other members of the school district. The matter, brought by order to show cause in the Livingston County Supreme Court, sought to challenge the disciplinary measures imposed as a result of the January 7, 1997 incident. Specifically, the petition alleged that, when the respondents failed to provide the students with notice of the proposed disciplinary measures, notice of their right to participate in an informal hearing prior to the imposition of the sanctions and an opportunity to present their version of the facts and other evidence in mitigation of the penalties imposed, the students were denied their rights under the state and federal due process provisions, Education Law "3214, District Rule 7313, and the "Student Bill of Rights," as set forth in the district’s handbook. The petition also alleged that, inasmuch as the students were questioned without the prior written consent of their parents, the district violated the provisions of the Family Educational Rights and Privacy Act. The petition sought to have the disciplinary letters rescinded, the penalties nullified and any references to the incident expunged from the students’ records. It also sought an award of damages, costs and attorneys' fees under 42 USC "1983.

On May 30, 1997, the Supreme Court, Livingston County (Alonzo, J.), denied the petition in all respects following a detailed discussion of the merits. With respect to petitioners Dale and Mitch Phillips, the court noted specifically:

I have reviewed the petition of Mitchell Dominic Phillips which differs from the other petitions in that an additional penalty was imposed upon him. His permission to attend the Caledonia-Mumford Central School as a tuition paying student, was revoked. I find no basis to reach a different result in his case.

A student possesses no vested interest in attending a school other than the one which he is, by Education Law "3202, granted the right to attend. The decision to admit a non-resident tuition transfer student is totally discretionary with the district except to the extent that a student’s equal protection rights are involved. ***

The district superintendent, in revoking permission for Mitchell Phillips to attend as a non-resident student, acted with the authority granted her and under procedures required by [district] Rule[s] 7313 and 7131. The record reflects that this petitioner was treated no differently, from a due process perspective, than any other student upon whom disciplinary penalties were imposed.

My review of the pleadings filed with the Supreme Court reveals that the judicial proceeding relates to the same set of facts and raises essentially the same issues as are raised in this appeal. As such, this appeal must be dismissed. Clearly, it is contrary to the orderly administration of justice to have multiple tribunals making determinations concerning the same controversy (Appeal of Campbell, 33 Ed Dept Rep 132; Appeal of Regent, et al., 27 id. 398; Matter of Young, 22 id. 256). Two of the main issues raised by petitioner in this appeal -- whether the discipline imposed was illegal and whether petitioner’s son was denied due process -- were clearly raised by petitioner in the Supreme Court proceeding and were dismissed. Furthermore, petitioner’s claim that respondent’s determination is arbitrary and that the penalty imposed is excessive were inextricably intertwined with the issues raised in the Article 78 proceeding. Having chosen this forum in which to litigate her claims, petitioner has made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to "310 of the Education Law (Appeal of Jacobson, 37 Ed Dept Rep 75; Appeal of Green, 31 id. 512; Appeal of Hilow, 31 id. 78).

The doctrine of res judicata also compels the dismissal of this appeal because where, as here, a court of competent jurisdiction has already denied claims identical to those raised before the Commissioner, an appeal pursuant to "310 of the Education Law does not lie (Appeal of Faville, 28 Ed Dept Rep 396; Matter of Patti Ann H., 22 id. 632).