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Decision No. 14,038

Appeal of SHERYL PHILLIPS, on behalf of MITCHELL PHILLIPS, from action of the Board of Education of the Enlarged City School District of Troy regarding a board policy.

Decision No. 14,038

(November 25, 1998)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondent, James A. P. McCarthy, Esq., of counsel

MILLS, Commissioner.--Petitioner Sheryl Phillips is the mother of Mitchell Phillips, who was a sophomore at Troy High School at the time of the appeal. Petitioner appeals the enactment by the Board of Education of the Enlarged City School District of Troy ("respondent") of a revised student dress code policy. The appeal must be dismissed.

On August 7, 1996, respondent adopted Board Policy #5312. It provides:

Student Dress:

Students of the Enlarged City School District of Troy, New York are expected to dress in attire which does not conflict with the educational process. Nap [sic] sacks, heavy coats and hats are prohibited from the classroom and/or library during school hours. Nap [sic] sacks, heavy coats and hats are to be left in the student’s locker during school hours.

Petitioner alleges that respondent violated its own board policies in adopting this policy. Petitioner also alleges that respondent failed to meet its legal obligation to develop this revised policy "locally in consultation with teachers, administrators, other school service professionals, students and parents" (8 NYCRR "100.2(l)). Petitioner contends that policy #5312 is overbroad and has no legitimate purpose.

Respondent contends that the appeal is untimely. Respondent also contends that the petition must be dismissed because it is premature, fails to state a claim upon which relief may be granted, fails to comply with the procedural requirements of the Education Law and the Commissioner’s regulations, and there is no justiciable controversy.

On October 3, 1996, petitioner commenced this appeal and requested interim relief. I denied petitioner’s request for interim relief on October 29, 1996.

I must first address several procedural issues. Respondent contends that petitioner’s reply is not responsive to respondent’s affirmative defenses and contains additional materials and arguments not contained in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Rampello, 37 Ed Dept Rep 153; Appeal of Lawson, 35 id. 450, Appeal of Brush, 34 id. 273). Therefore, I will not consider those portions of petitioner’s reply containing new allegations and material not responsive to new material or affirmative defenses set forth in the answer.

With regard to timeliness, an appeal to the Commissioner 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). Respondent contends that the petition is untimely and petitioner failed to set forth good cause to excuse the late filing. In the petition, petitioner contends that respondent violated its own policies in adopting policy #5312 at its regular board meeting on August 7, 1996. Petitioner did not commence this proceeding until October 3, 1996, more than thirty days later. Petitioner attempts to excuse her failure to file her petition within 30 days of respondent’s adoption of the policy by stating that she did not receive "copies of the August 7, 1996 meeting until September 18, 1996." (Presumably, petitioner means copies of the minutes of the August 7 meeting.) Petitioner argues that the petition was filed within 30 days of September 18.

Respondent passed the policy in question at its regular board meeting on August 7, 1996. Thus, petitioner was required to file her petition within thirty days of August 7. However, she did not file her appeal until almost sixty days later, on October 3. Petitioner’s contention that she did not know the outcome of the meeting until September 18 is disingenuous. Not only was the August 7 meeting a regular board meeting, but petitioner’s husband is a member of the board of education and was present on August 7. Moreover, petitioner provides no explanation or good cause why she did not or could not obtain copies of the minutes of the August 7 meeting until September 18 or why the lack of those minutes precluded her from filing the petition within thirty days. Furthermore, petitioner’s position is controverted by claims in her reply that information regarding respondent's actions at that meeting became public before September 18, at a September 11 meeting. Since the petition was not filed until October 3, 1996, and petitioner has provided no good cause for the delay, I find that the petition is untimely and must be dismissed.

While I need not address petitioner’s alternative theories of timeliness claimed for the first time in her reply since they constitute belated arguments that should have been asserted in the petition, the appeal would nonetheless be dismissed if they were considered. Petitioner claims that she is actually appealing respondent’s failure to suspend its new policy after her husband’s request at the September 11 meeting. To the extent that this was actually the subject of petitioner’s appeal, it constitutes a request for reconsideration of respondent’s original action. It is well settled that requests for reconsideration do not extend the thirty-day time period for filing appeals (Appeal of Blaske, 37 Ed Dept Rep 277).

While I have dismissed the appeal on procedural grounds, I am nonetheless compelled to make some observations about school violence and the creation of a safe learning environment for all students. Respondent asserts that its revised student dress code is intended to address its legitimate interest in teaching students socially appropriate behavior and life skills, and to eliminate potential health and safety hazards. I do not doubt respondent's sincere desire to address these serious concerns and find respondent's efforts to promote student safety and avoid school violence commendable. However, the instant record includes only limited evidence of respondent's efforts to engage all elements of the school community in a meaningful discussion of its proposed solution to the problem. Significant policy decisions that may impact on student rights, such as the policy at issue in this appeal, require careful consideration and thoughtful discussion within the school community, including parents, teachers and students. I, therefore, urge respondent to promote such a discussion, which will enhance respondent’s ability to fulfill its mission to safely educate the district’s students by enacting rules narrowly tailored to address legitimate concerns.