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Decision No. 14,738

Appeal of GERALD A. MOORE, on behalf of his daughter KEZIA, from action of the Board of Education of the Scotia-Glenville Central School District regarding a school trip.


Decision No. 14,738

(June 19, 2002)


McCary & Huff, LLP, attorneys for respondent, Margaret D. Huff, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals a decision by the Board of Education of the Scotia-Glenville Central School District ("respondent") denying his request for a hearing on the cancellation of a trip to France and for reimbursement of the cancellation fee. The appeal must be dismissed.

On or about May 7, 2001, one of respondent"s high school French teachers submitted a request to the high school principal for an optional overnight trip to France during winter break in February 2002 for certain French students. The cost of the trip was to be paid by participating students with no expense to the district. On May 21, 2001, respondent approved the request.

On or about May 25, 2001, the French teacher sent a letter to parents describing the trip and indicating that all arrangements would be made by Vistas in Education ("VIE"), a private travel company. Information prepared by VIE, including payment deadlines and its cancellation policy, was also provided. Under VIE"s policy, cancellations must be sent in writing by the traveler directly to VIE. The policy further stated that cancellations made by phone or by the teacher would not be honored.

In June of 2001, petitioner"s wife issued a $250.00 check to VIE as a deposit for her daughter"s participation in the trip.

On September 11, 2001, terrorists attacked the Pentagon and the World Trade Center and a third hijacked plane crashed in Pennsylvania. On September 12, 2001, the United States Department of State issued a worldwide caution regarding travel.

On September 24, 2001, respondent held a special meeting to discuss overseas trips and whether they should be cancelled in light of the terrorist attacks and the travel caution, but took no action at that time. At a regularly scheduled board meeting on October 1, 2001, respondent continued its discussion regarding overseas trips. Again, respondent took no action on the issue. However, the meeting minutes indicate that the superintendent would seek advice from the district"s attorney regarding a possible resolution canceling overnight trips and that the superintendent and high school principal would let the French teacher "know that the administration has decided the trip to France will not go."

By letter dated October 3, 2001, parents were informed of the superintendent"s recommendation to respondent that all international travel planned through the school program be cancelled. The letter noted that under VIE"s cancellation policy, $100.00 of each deposit was non-refundable, but that VIE was reconsidering its refund policy.

On October 3, 2001, petitioner e-mailed the superintendent, asking respondent to reconsider the cancellation of the trip to France. He further asked that parents be given notice of the meeting and an opportunity to be heard on the issue. On that same date, petitioner e-mailed VIE asking for a full return of deposits because the cancellation was "based on a reasonable fear of terrorist attacks targeted against Americans." VIE refused petitioner"s request.

On October 4, 2001, petitioner e-mailed the superintendent and argued that respondent had no authority to cancel the trip. He asked that all efforts to cancel the trip cease immediately and that a meeting of teachers, students and families be held. He also asked for the rules and policies to appeal the decision to cancel the trip.

By letter dated October 5, 2001, the superintendent responded to petitioner, stating that respondent did not cancel the trip, but rather withdrew its approval of the trip as a school-sponsored activity. He further stated that respondent"s action did not prevent the trip from taking place or preclude a personal decision by any parent to permit his/her child(ren) to travel outside the United States.

On October 9, 2001, petitioner e-mailed the superintendent asking him to inform the French teacher that the district did not cancel the trip and that if she proceeded to cancel it, she was doing so on her own. The superintendent e-mailed petitioner on that same date and stated that pursuant to his instructions, the French teacher informed VIE that the trip had been cancelled and that she was no longer involved in planning the trip but would work on the recovery of deposits. He again stated that petitioner was free to pursue a private, non-school sponsored trip.

By letter dated October 10, 2001, school administrators informed parents that VIE would not return the $100.00 non-refundable cancellation fee, but would give parents the option of using the deposit monies toward a trip to be held during the 2002-2003 school year. Petitioner elected to receive the $150.00 refund and asked the superintendent if there was a way to be reimbursed for the balance from district funds.

On October 22, 2001, petitioner sent a letter to the superintendent asking that respondent reconsider the decision to cancel the trip or fully reimburse students for the cancellation fee. He also asked that respondent review the superintendent"s failure to provide him with information concerning a parent"s right to appeal a decision made by the superintendent.

At a regularly scheduled board meeting held on October 22, 2001, respondent voted to rescind its prior resolution approving the request for an overnight trip to France at no expense to the district. The resolution further authorized the superintendent to take any and all action necessary to effectuate respondent"s action. Petitioner was present for part of the meeting.

On October 29, 2001, the superintendent sent a copy of the resolution to VIE. He also asked VIE to refund the deposits in full.

By letter dated November 5, 2001, petitioner was informed that respondent"s action of October 22, 2001 resolved his appeal and that the school district would take no further action on the matter. This appeal ensued.

Petitioner contends that respondent failed to provide him and his daughter with minimal due process, including notice and an opportunity to be heard, under the State and Federal Constitutions and the district"s student bill of rights. Petitioner further claims that respondent exceeded its authority by canceling the trip instead of merely withdrawing its approval of the trip as a school-sponsored activity. He argues that respondent tortiously interfered with his contract with VIE resulting in the loss of the cancellation fee. Petitioner seeks an order overturning respondent"s decision denying petitioner a hearing on the cancellation of the trip and his request for reimbursement of the cancellation fee. Petitioner also seeks an order requiring respondent to reimburse petitioner and to establish due process procedures to address similar circumstances in the future.

Respondent contends that the actions taken by respondent and its superintendent in canceling and rescinding its approval of the trip were rational, reasonable and within its statutory authority, particularly in light of the events of September 11, 2001. Respondent further claims that petitioner and his daughter were provided with any and all due process to which they were entitled. Respondent asserts that the appeal should be dismissed as untimely and that petitioner failed to effect proper service on respondent. Finally, respondent contends that the Commissioner lacks jurisdiction over the appeal because it raises novel issues of constitutional law and seeks a monetary remedy.

I note that the trip was to have occurred in February 2002 during the 2001-2002 winter break. The Commissioner of Education will only decide matters in actual controversy and will not ordinarily render a decision on a state of facts that no longer exist or which subsequent events have laid to rest (Appeal of Carney, 39 Ed Dept Rep 255, Decision No. 14,229; Appeal of Rollins, 38 id. 192, Decision No. 14,012; Appeal of Harvey, 37 id. 194, Decision No. 13,840). Accordingly, to the extent petitioner challenges respondent"s refusal to provide a hearing on the cancellation of a trip that was supposed to have occurred in February 2002, the appeal is moot.

Moreover, an appeal must be instituted within 30 days from the making of the decision or the performance of the act complained of, except for good cause shown in the petition (8 NYCRR "276.16). The date from which the 30-day limitation runs is the date of respondent"s final determination (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep 212, Decision No. 14,464; Appeal of a Student Suspected of Having a Disability, 38 id. 52, Decision No. 13,980). With the exception of petitioner"s claim for reimbursement, the date of respondent"s final action regarding the trip occurred on October 22, 2001 when respondent rescinded its approval of the trip and authorized its superintendent to take action to effectuate that decision. Petitioner was present at that meeting. Petitioner commenced this appeal on December 4, 2001, more than 30 days after respondent"s decision.

Petitioner contends that the appeal was delayed because respondent did not provide him with the superintendent"s letter to VIE notifying them of respondent"s decision until December 3, 2001. I find, however, that such letter was not necessary to commence an appeal challenging respondent"s action taken at a public meeting on October 22, 2001.

Petitioner also claims that his daughter"s sudden illness prevented him from timely commencing this appeal. While I am sensitive to this claim, petitioner fails to specify in his papers how his daughter"s illness prevented him from timely commencing the appeal. Petitioner alleges that his daughter was hospitalized and subsequently required home care through November 12, 2001 and attended school for half-days through December 3, 2001. On the record before me, it is not even clear that petitioner was the individual responsible for providing his daughter with such care. Thus, petitioner has failed to demonstrate good cause for his delay in challenging respondent"s October 22, 2001 action rescinding its prior approval of the trip. Accordingly, his request for relief concerning the same must be dismissed as untimely.

However, I decline to dismiss as untimely petitioner"s allegations regarding reimbursement of the cancellation fee. Respondent"s action on October 22, 2001 did not address the issue of reimbursement of the cancellation fee. It was not until he received the November 5, 2001 letter, that petitioner was notified that respondent would not take any action with respect to his request for reimbursement of the cancellation fee. As such, I find petitioner"s appeal timely with respect to this claim.

However, I must dismiss petitioner"s reimbursement claim for lack of jurisdiction. The crux of petitioner"s reimbursement claim is that respondent wrongfully interfered with his alleged contract with VIE. An appeal to the Commissioner is not the appropriate forum in which to obtain review of this contention. The appropriate forum for such a proceeding is a civil court (Appeal of Cardo, 38 Ed Dept Rep 255, Decision No. 14,027; Appeal of Cohen, 30 id. 252, Decision No. 12,452). In addition, it is well settled that the Commissioner of Education lacks authority to award money damages (Appeal of a Student with a Disability, 41 Ed Dept Rep ___, Decision No. 14,613; Appeal of Kozak and Hetey, 40 id. 195, Decision No. 14,459; Appeal of Wendy and Robert L., 39 id. 224, Decision No. 14,222). Thus, to the extent petitioner seeks reimbursement of the cancellation fee, the appeal must also be dismissed.

In light of the foregoing disposition, I need not address the parties" remaining contentions.