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Decision No. 18,127

Appeal of JOEL R. DAVIDSON from action of the Board of Education of the Granville Central School District and Thomas McGurl in his capacity as superintendent regarding an election.

Decision No. 18,127

(May 31, 2022)

Girvin & Ferlazzo, PC, attorneys for respondent, Erin R. Morris, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Granville Central School District (“respondent”) and Thomas McGurl in his capacity as superintendent (“superintendent”) concerning a budget vote and election.  The appeal must be dismissed.

Respondent held its annual budget vote and election on May 18, 2021 at its Junior/Senior High School (the “campus”).  The record reflects that respondent adopted COVID-19 protocols for the 2020-2021 school year that generally prohibited members of the public from entering the campus.  An exception was made for voters, who were allowed to enter the campus to vote but required to leave thereafter.

On election day, petitioner arrived on the campus to hand out flyers in support of certain candidates for election to the board.  There were no markers to delineate 100 feet from the polling site.[1]  Petitioner selected a location that was more than 100 feet from the polling site and proceeded to hand out flyers.[2]  Upon learning that petitioner and others were electioneering on campus, the superintendent directed a school resource officer (SRO) to ensure that any such activity occurred off campus.  The SRO spoke to petitioner, who agreed to relocate to a sidewalk.

Thereafter, respondent received complaints that petitioner and others were intimidating voters.  These voters indicated that they “felt like they were being stopped by [petitioner and others] at the [campus] entrance.”  The SRO again spoke to petitioner.  While initially unwilling to relocate a second time, petitioner eventually moved to a location outside the entrance gate of the campus.  Petitioner continued his electioneering thereafter without incident.  This appeal ensued.

Petitioner contends that respondent wrongfully prohibited him from engaging in electioneering more than 100 feet from the polling site and denies that his conduct was intimidating or harassing.  For relief, petitioner seeks a “public statement” by respondent that it “violated [his] First Amendment rights”; a directive that it “cease and desist” from “interfering” with electioneering more than 100 feet away from polling sites; and an order that respondent ensure the placement of 100-foot markers during elections.

Respondent argues that petitioner seeks relief that cannot be obtained in an appeal to the Commissioner of Education.  Respondent further contends that it was allowed to prohibit all electioneering on the campus pursuant to its COVID-19 policy.  In any event, respondent argues that it reasonably requested that petitioner relocate due to reports of voter intimidation and his obstruction of “traffic and the ingress and egress to [d]istrict property.” 

Petitioner’s requests for declarations that respondent violated his First Amendment rights must be dismissed as outside the scope of an appeal under Education Law § 310.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law § 310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Thus, I decline to entertain petitioner’s request for declarations that respondent violated his First Amendment rights by enforcing its COVID-19 policy and prohibiting him from electioneering in certain locations.[3]

Additionally, there is no basis in the record to order respondent to prospectively comply with Education Law § 2031-a.  The parties do not dispute the nature of the 100-foot requirement; they disagree only as to whether it applied under the unique circumstances of the 2020-2021 school year, where respondent’s COVID-19 policy prohibited the public from entering the campus.[4]  The superintendent indicates in an affidavit that he is “aware of the rights individuals … have to electioneer on school property” and “affirm[s] that[,] in future years, the [100-foot] markers will be installed at the appropriate location.”  I am satisfied that respondent is aware of its legal obligations and that the circumstances described herein were unique to the 2020-2021 school year.  As such, there is no basis upon which to grant petitioner’s requested relief.

In light of this determination, it is unnecessary to address the parties’ remaining contentions.




[1] Education Law § 2031-a (2) provides, in pertinent part, that “no person shall do any electioneering within the polling place, or within one hundred feet therefrom ...” (see Appeal of Toure, et al., 54 Ed Dept Rep, Decision No. 16,660).


[2] The parties dispute the distance of this location, ranging from 140 feet (respondents) to 250 feet (petitioner).  The difference is immaterial for the purposes of this appeal.


[3] Prior decisions of the Commissioner and court decisions suggest that any relief for a First Amendment violation would take the form of either fiscal compensation, which I lack jurisdiction to award (Cullen v Fliegner, 18 F3d 96 [2d Cir 1994]), or overturning the results of the election, which petitioner does not request (see e.g. Appeal of Jarmond and Johnson, 56 Ed Dept Rep, Decision No. 17,108; Appeal of Toure, et al., 54 id., Decision No. 16,660).


[4] Given respondent’s position, it would have been unnecessary, and potentially confusing, to install 100-foot markers, as this would suggest that electioneering was permitted on portions of the campus.