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Decision No. 15,164

Appeal of ELIZABETH and DAVID PASSER, on behalf of their children RACHEL, SAMUEL, EMILY and DAYNA, from action of the Board of Education of the Mexico Central School District regarding a seasonal display.


Decision No. 15,164

(January 31, 2005)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the action of the Board of Education of the Mexico Central School District ("respondent") permitting the seasonal display of single candles in the windows of its high school. The appeal must be dismissed.

The Dollars for Scholars Foundation is a national network of community volunteers that raises money to award scholarships for postsecondary education. The local chapter of Dollars for Scholars in respondent�s district awards scholarships to selected seniors of respondent�s high school who plan to enroll in a college, university, vocational or business school. Since the Fall of 2000, the local chapter has raised funds by displaying single electric candles in the windows of respondent�s high school in exchange for monetary donations to the scholarship fund from donors who sponsor a candle in memory of a family member, student, teacher or other loved one.

In 2001, petitioners donated to the fund for a "memory light" in honor of a Jewish immigrant from Russia. However, on September 30, 2003, petitioners complained to respondent that the display was exclusionary promoting Christianity and its cultural customs. Respondent did not respond to petitioners� complaint and permitted the Dollars for Scholars Foundation to proceed with its seasonal candle lighting from October 30, 2003 until February 2, 2004. Petitioners commenced this appeal on November 19, 2003. Petitioners� request for interim relief was denied.

Petitioners assert that a single candle placed in a window is an advent candle. They contend that respondent violated the First and Fourteenth Amendments of the United States Constitution when it permitted the Dollars for Scholars Foundation to display an alleged Christian symbol in its high school. Respondent asserts interalia that petitioners failed to join necessary parties and that a single candle in a window is neither an exclusively religious symbol nor was it used as a religious symbol in this context. Respondent also maintains that the appeal should be dismissed on procedural grounds.

At the outset, I note that respondent objects to petitioners� reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of General , 43 Ed Dept Rep 146, Decision No. 14,948; Appeal of Crosier, 42 id. 232, Decision No. 14,835).  Therefore, while I have reviewed petitioners� reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Simmons, 43 Ed Dept Rep -7, Decision No. 14,899; Appeal of Recore, 42 id. 283, Decision No. 14,856; Appeal of Dickinson, 39 id. 41, Decision No. 14,168).   Petitioners seek to prevent the local chapter of the Dollars for Scholars Foundation from conducting a fundraising activity.  Clearly, a determination in petitioners� favor would adversely affect this organization.  Accordingly, petitioners� failure to join the foundation as a party requires dismissal of the appeal.

The petition must also be dismissed on the merits. In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear right to the relief requested (8 NYCRR �275.10) and the burden of establishing the facts upon which he seeks relief (Application of Bean, 42 Ed Dept Rep 171, Decision No. 14,810; Application of Lilker, 40 id. 704, Decision No. 14,588). Petitioners� request for relief requires that they first establish that single candles displayed in the windows of respondent�s high school are religious symbols. However, they have offered no evidence beyond their conjecture that the display was religious. To the contrary, the evidence submitted by petitioners and respondent establishes that the display of single candles in the windows of respondent�s high school was nonreligious. On the record before me, I find that petitioners have failed to meet their burden of proof.

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