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Decision No. 16,206

Appeal of R.A., on behalf of his son M.A., from action of the Board of Education of the Pine Valley Central School District and Peter Morgante, Superintendent, regarding student discipline.

Decision No. 16,206

(March 16, 2011)

Sellstrom Law Firm, LLP, attorneys for petitioner, Stephen E. Sellstrom, Esq., of counsel

Lundberg & Gustafson, LLP, attorneys for respondents, Dana A. Lundberg, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Pine Valley Central School District (“board”) and Superintendent Morgante (“superintendent”) (collectively “respondents”) to suspend his son, M.A., from extracurricular activities and dismiss him from the National Honor Society.  The appeal must be dismissed.

During the 2009-2010 school year, M.A. attended Pine Valley High School.  On May 16, 2010, M.A. attended a gathering at a state park where alcohol was consumed.

By letter dated May 26, 2010, the principal informed petitioner that M.A. would be disciplined in accordance with the district’s Code of Conduct for Members of Extracurricular Activities and Athletics 2009 (“Code of Conduct”).  Accordingly, M.A. was placed on probation for one school year and was also placed on a “No Privilege” list.  He was permitted to practice with the baseball team but not allowed to participate in any playoff games.  In addition, the principal notified R.A. that the Student Council and National Honor Society would convene to discuss M.A.’s status.  By letter dated June 1, 2010, M.A. appealed the principal’s May 26, 2010 decision to suspend his privileges from extracurricular activities.  By letter dated June 8, 2010, the superintendent denied that appeal.

On the morning of June 4, 2010, the district’s Faculty Council met to discuss M.A.’s National Honor Society status.  M.A. was invited to offer a statement regarding the events of May 16, 2010 at a second meeting held that afternoon.  M.A. declined to do so and, by letter dated June 4, 2010, was dismissed from the National Honor Society.  By letter dated June 25, 2010, M.A. appealed and, by memorandum dated July 9, 2010, the principal denied his appeal.

On July 7, 2010, petitioner commenced a proceeding pursuant to Article 78 of the New York State Civil Practice Law and Rules in Supreme Court, Chautauqua County, for a judgment prohibiting respondents from disciplining M.A.  On or about July 22, 2010, petitioner filed an amended petition with the court.

By letter dated July 12, 2010, petitioner appealed the principal’s July 9, 2010 decision, upholding M.A.’s dismissal from the National Honor Society.  By letter dated July 15, 2010, the superintendent denied that appeal.  This appeal ensued.

Petitioner alleges that M.A.’s punishment was disproportionate to the alleged violation and that M.A. was denied due process.  Petitioner maintains that M.A. did not violate the Code of Conduct.  Petitioner requests an order “prohibiting implementation of any discipline/punishment by respondents against [M.A.] arising and/or related to the incident on May 16, 2010 and directing the expungement of any and all references to the punishment and the May 16, 2010 incident.”

Respondents allege that the appeal is untimely, that district officials complied with all applicable procedures and that the discipline imposed is supported by the record.

The appeal must be dismissed on procedural grounds.  The prior commencement of an action or proceeding in another forum for the same or similar relief constitutes an election of remedies which precludes the initiation of an appeal to the Commissioner (Appeal of Hinson, 48 Ed Dept Rep 437, Decision No. 15,908; Appeal of A.D., 46 id. 236, Decision No. 15,492; Appeal of Qureshi, 43 id. 504, Decision No. 15,066).  It would be contrary to the orderly administration of justice for the Commissioner to decide issues that a petitioner has elected to raise in another forum (Appeal of T.G. and R.G., 46 Ed Dept Rep 95, Decision No. 15,451).  The record indicates that petitioner commenced an action in New York State Supreme Court, Chautauqua County, against respondents arising out of the same set of facts and seeking the same relief as that sought in this appeal.  In light of petitioner’s election of remedies, I am constrained to dismiss this appeal.