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Decision No. 14,829

Appeals of ROBERT P. OLIVER, on behalf of his daughter CASSAUNDRA, from action of the Board of Education of the Bay Shore Union Free School District, Leland Christensen, Superintendent Evelyn Blose Holman, Security Director Paul Brady, Germaine Moore, Jerry G. Berka, Gregory Nardone, Mary Louise Cohen, Kevin Kelly and Randolph Kirchner regarding access to school district property.



(January 9, 2003)


Ghenya B. Grant, Esq., attorney for petitioner


Ingerman, Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--In two separate appeals, petitioner challenges the decision of the Board of Education of the Bay Shore Union Free School District ("respondent") to limit petitioner"s access to school district property and seeks to annul respondent"s Code of Conduct ("code").  Because the appeals involve the same set of facts, they are consolidated for decision.  The appeals must be dismissed.

On or about July 18, 2001, petitioner entered respondent"s high school building to pick up his daughter and was confronted by security guard McCray, who asked petitioner to identify himself.  Petitioner refused the guard"s request and respondent security guard Germaine Moore ("Moore") accompanied petitioner as he continued to his daughter"s classroom.  Petitioner became upset when Moore spoke to his daughter and a physical altercation ensued.  The Assistant to the Superintendent for Administration, Leland P. Christensen ("Christensen"), met with petitioner that same day to discuss the matter.  By letter dated July 18, 2001, Christensen barred petitioner from entering school district property. Petitioner commenced the first appeal on February 15, 2002 and his request for interim relief was denied on March 5, 2002. 

By letter dated March 1, 2002, Christensen notified petitioner that he would be allowed to enter school property for specific appointments with school staff approved in advance by the building principal, to attend specific school events with the prior permission of the principal and to pick up his daughter at a location designated in advance by school officials.  Petitioner commenced a second appeal on April 3, 2002 challenging these restrictions and seeking to annul respondent"s code.

In the first appeal, petitioner contends that he was defending himself against Moore and that he was denied due process before being barred from school property.  Petitioner also contends that respondent refused to provide him with a copy of its school safety policy. Petitioner argues that he is being denied the right to participate in his daughter"s education and asks for a determination that he is no longer permanently barred from school district property. 

In the second appeal, petitioner continues to assert that he was denied due process.  He also argues that the penalty imposed is not authorized by respondent"s code and that the code is unconstitutional because it is vague and establishes different standards for students, teachers and district employees.  Petitioner asserts that he was prevented from participating in a teacher conference in violation of the Family Educational Rights and Privacy Act ("FERPA").  Petitioner asks that the code be invalidated and that restrictions on his access to school district property be reversed.

Respondent asserts that petitioner"s attack on Moore justifies its decision to restrict his access to school district property.  Respondent contends that the appeals are untimely and moot and that petitioner failed to exhaust administrative remedies.  Respondent argues that the petitions fail to state claims upon which relief may be granted and that an appeal to the Commissioner of Education is not the appropriate forum for the resolution of constitutional or FERPA claims.  Respondent states that petitioner failed to serve the petition on the individually named respondents.  Finally, respondent asserts that petitioner has no protected liberty or property interest in entering school property and that he was provided with adequate due process.

Initially, I must address the jurisdictional issues. Section "275.8 of the Commissioner"s regulations requires that a petition be personally served upon the named respondents.  The record shows that petitioner served the petitions upon the board of education but failed to serve the individual respondents Leland Christensen, Superintendent Evelyn Blose Holman, Security Director Paul Brady, Germaine Moore and the individual board members named in the caption.  Therefore, the appeals are dismissed as to all parties except respondent board of education.

Additionally, in the second appeal, petitioner claims that respondent violated FERPA.  The Commissioner of Education lacks jurisdiction to consider petitioner"s FERPA claim.  The United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Application of T.D., 41 Ed Dept Rep __, Decision No. 14,646;  Appeal of Tucker, 39 id. 824, Decision No. 14,393; Appeal of Lawson, 38 id. 713, Decision No. 14,124).  Therefore, petitioner"s FERPA claim is dismissed.

     The first appeal is also untimely.  An appeal to the Commissioner must be commenced 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).  Petitioner was notified by letter dated July 18, 2001 that respondent was restricting his access to school district property.  He did not commence the appeal until February 15, 2002.  Petitioner concedes that his first appeal is late, but states that he waited until criminal charges arising out of the same incident were resolved because he feared they would prejudice his appeal.  However, he states that his criminal case was adjourned in contemplation of dismissal on November 2, 2001 and this appeal was filed more than four months later.  Therefore, the first appeal must be dismissed.

     The first appeal is also moot. The Commissioner of Education will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of V.P., 42 Ed Dept Rep __, Decision No. 14,754; Appeal of K.M., 41 id. __, Decision No. 14,699; Appeal of N.B., 40 id. 515, Decision No. 14,542).  In the first appeal, petitioner sought to revoke respondent"s decision to bar petitioner from school district property.  The record indicates that petitioner is now permitted to meet with school staff and attend school events with prior approval by the school principal and to pick up his daughter at a designated location.  Since petitioner is no longer barred from school property, the first appeal is moot.

Finally, to the extent that both appeals challenge respondent"s authority to restrict petitioner"s access to school district property, they are without merit.  Education Law "1709(2) and (33) give boards of education the authority to establish rules and regulations concerning order and discipline in the schools (see, e.g., Appeal of Havens, 42 Ed Dept Rep __, Decision No. 14,758; Appeal of Canazon, 33 id. 124, Decision No. 12,997).  In addition, Education Law "2801 mandates that a board of education adopt a code of conduct addressing the safety and security of students and school personnel.  Respondent submits a copy of its code which contains a list of prohibited conduct and a range of penalties.  Petitioner argues that the penalty imposed on him is not included in respondent"s code.  However, the code clearly states that respondent may impose sanctions consistent with the penalties listed.  The first listed penalty states that a visitor"s ""authorization, if any, to remain on school grounds...shall be withdrawn," the visitor may be directed to leave school grounds and refusal to leave could subject the visitor to arrest for trespass.  I find that the penalty imposed upon petitioner is consistent with this provision.

The record reveals that respondent"s security staff merely performed their duty to protect students by asking petitioner to identify himself as he entered the building.  After petitioner refused to give his name, Moore attempted to identify the student and her connection to petitioner before petitioner was allowed to leave the school building with her. Statements from Moore and a teacher who witnessed the events indicate that instead of cooperating with respondent"s safety procedures, petitioner initiated a physical altercation.  In light of petitioner"s behavior on school property, I find respondent"s restriction of petitioner"s access well within its authority.

     In light of this disposition I need not address the parties remaining contentions