Decision No. 14,232

(October 18, 1999)

MILLS, Commissioner.--Petitioner appeals the action of a director of a school play dismissing his daughter Megan from the cast. The appeal must be dismissed.

Petitioner asserts that Megan was denied due process because she was dismissed from the play without notice and without disciplinary proceedings. He claims that Megan cannot be protected from a hostile environment at the school. He requests that the director of the play be removed from the teaching staff, that other co-directors be reprimanded, that the principal be held accountable and that the district issue a public apology to Megan.

The Queensbury Union Free School District ("respondent") asserts that the petition fails to state a cause of action, is untimely and moot. Respondent also asserts that the high school principal investigated the circumstances surrounding Megan’s dismissal, determined that Megan was insubordinate and that the play's director acted appropriately. Respondent asserts further that the actions of its employees and administrators were neither arbitrary, capricious nor an abuse of discretion, and that Megan and her parents had a full opportunity to be heard by the play directors and the board of education.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted 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). Megan was dismissed from the play in early March 1999 and her parents appeared before the board of education on March 8, 1999. The petition was not served until June 15, 1999, more than 90 days later. Accordingly, the petition is dismissed as untimely.

The appeal must also be dismissed for failure to join necessary parties. Petitioner asks me to remove Janet Davies, the director of the play, from the teaching staff, reprimand Stephen Leonard and Richard Joyce, co-directors of the play, and hold Terence Tryon, the high school principal, accountable for failing to carry out district policy. Thus, to the extent petitioner requests that I take action against these individuals, petitioner’s claims must be dismissed in accordance with 8 NYCRR "275.8 for failure to properly join such individuals as parties to the appeal (Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of Duffy, 36 id. 257, Decision No. 13,718).

The appeal is also dismissed on the merits. In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Trombley, 39 Ed Dept Rep ___, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 id. 694, Decision No. 14,120). To the extent petitioner seeks disciplinary action against district employees, it is the board of education that has the authority to take such disciplinary action, not the Commissioner. Moreover, a board of education has broad discretion to determine whether disciplinary action against an employee is warranted (Appeal of Catherine B., supra; Appeal of Rivenburg, 35 id. 27, Decision No. 13,451). On the record before me, petitioner has not demonstrated a clear legal right to the relief he requests.

Furthermore, a board of education has very broad authority to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Appeal of Catherine B., supra; Appeal of Douglas and Judy H., et al, 36 Ed Dept Rep 224, Decision No. 13,707). Thus, respondent had the discretion to curtail Megan’s participation in the play. Based upon the record, I cannot find that such discretion was abused. In addition, I note that the procedures specified in Education Law "3214 do not apply to suspensions from extracurricular activities (Appeal of Douglas and Judy H., et al., supra).

I have considered petitioner’s remaining arguments and find them without merit.

THE APPEAL IS DISMISSED.

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