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Decision No. 14,994

Appeal of L.M., on behalf of his son T.M., from action of the Board of Education of the Ballston Spa Central School District regarding school safety.


Decision No. 14,994

 (December 8, 2003)


Girvin & Ferlazzo, P.C., attorneys for respondent, Kathy Ann Wolverton, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals various actions by employees of the Board of Education of the Ballston Spa Central School District ("respondent") and alleges they failed to maintain a safe environment in respondent"s middle school.  The appeal must be dismissed.

T.M. was an eighth grade student at respondent"s middle school during the 2002-2003 school year.  T.M. experienced several problems at school, including verbal and physical altercations with other students.  Petitioner and his wife expressed concern about T.M."s safety to school administrators, including the middle school principal and counselor for at-risk students.  T.M. also met with several school officials, including the counselor.  Although it appears from the record that school administrators made several attempts to address T.M."s difficulties, petitioner was not satisfied with their efforts.

In early June, petitioner and his wife requested that T.M. be permitted to finish the school year studying at home and that a plan be established for T.M. to take his final exams.  The principal, guidance counselor, and student dean offered to provide T.M. with an aide or escort in school halls and bathrooms, but his parents did not accept the proposal.  Because of scheduling conflicts, respondent"s staff could not accommodate petitioner"s request to allow T.M. to take his final exams in a certain room.  Petitioner alleges that T.M. was subjected to harassment while taking exams.  This appeal ensued.

Petitioner alleges that students have repeatedly harassed T.M. and have not been appropriately disciplined by respondent"s staff.  He also accuses respondent of providing an unsafe environment for T.M. and his sister.  Petitioner contends that when he has contacted various school administrators about T.M."s problems, they have not responded in a timely fashion and have not taken appropriate action.  To support his claims, petitioner submits e-mail communications with school administrators, letters and photographs to illustrate injuries T.M. allegedly sustained from an altercation at school.

Petitioner requests that I direct respondent to fulfill its obligation to provide a safe environment, consistent with its code of conduct and mission statement, and instruct teachers and students that it will not tolerate acts contrary to the code or mission statement.  Petitioner also asks that I direct respondent to outline the steps it will take to ensure that T.M. and his sister have safe environments at their schools during the 2003-2004 school year.  Finally, petitioner requests that respondent ensure timely communication and follow-through on any resulting plan.

Respondent maintains that it has appropriately handled petitioner"s concerns.  Respondent emphasizes that it has taken significant steps to address discipline issues at the middle school and has instituted innovative programs to facilitate appropriate student behavior.

Respondent raises several procedural defenses including timeliness, mootness, failure to exhaust administrative remedies, prematurity and failure to join necessary parties.  Respondent also alleges the petition fails to state a claim upon which relief can be granted.

The appeal must be dismissed as 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 any delay is excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Recore, 42 Ed Dept Rep ___, Decision No. 14,856; Appeal of Phillips, 40 id. 241, Decision No. 14,471).  Petitioner served the petition on July 10, 2003.  With the possible exception of the alleged harassment during final exams, all of the events petitioner complains about occurred significantly more than 30 days prior to commencement of the appeal.  Specifically, the petition begins with events in May 2002 and continues with allegations concerning events through May 2003.  To the extent that petitioner complains of events that occurred more than 30 days before July 10, 2003, his claims must be dismissed as untimely.

To the extent that petitioner"s claim that T.M. was harassed during his June exams is timely, the appeal must be dismissed on the merits.  In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of Brannon, 42 Ed Dept Rep ___, Decision No. 14,830; Appeal of Olsen, 42 id. 20, Decision No. 14,761).  Petitioner"s conclusory allegations that T.M. was harassed during exams are not supported by factual evidence.  Thus, he has not met his burden of proof.

Petitioner"s claim for relief regarding T.M."s sister must be dismissed as premature.  The petition does not establish that she has encountered any threat to her safety.  It is well established that the Commissioner will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of American Quality Beverages, LLC and Tom"s Vending, 42 Ed Dept Rep 153, Decision No. 14,805; Appeal of Sheppard, 41 id. 150, Decision No. 14,643).

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