Appeal of P.F., on behalf of his daughter G.F., from action of the Board of Education of the Sachem Central School District relating to the designation of a co-salutatorian.

Decision No. 16,039

(March 26, 2010)

Ingerman Smith, LLP, attorneys for respondent, Orla J. McCabe, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sachem Central School District (“respondent” or “board”) to appoint co-salutatorians of the 2009 graduating class.  The appeal must be dismissed.

Petitioner is the father of G.F., a member of the 2009 graduating class in respondent’s high school.  At the beginning of the first semester of G.F.’s senior year, she was ranked third in her graduating class, with a grade point average of 118.00, and another senior, E.M. was ranked second, with a grade point average of 118.06.  At the end of the first semester, averages were recalculated and E.M.’s ranking dropped to third with a grade point average of 118.52, and G.F. was ranked second with a grade point average of 118.56.  By letter dated February 10, 2009, G.F. was named salutatorian of respondent’s high school, and E.M. was notified that he ranked third.  At a board meeting on February 25, 2009, E.M’s mother questioned the district’s decision not to confer the title of salutatorian on E.M.  By board resolution dated May 6, 2009, respondent designated E.M. and G.F. co-salutatorians of the 2009 graduating class.  This appeal ensued. Petitioner’s request for interim relief was denied on June 4, 2009.

Petitioner claims that the board acted arbitrarily and irrationally in adopting a resolution to name co-salutatorians of the 2009 graduating class.  In addition, petitioner claims that G.F. was slandered at board meetings and that petitioner’s Freedom of Information Law (“FOIL”) requests were improperly denied.  Petitioner requests that the board resolution be overturned, that E.M. not be recognized as co-salutatorian at awards night, graduation or in any district publication or activity.  Petitioner also asks that respondent appoint an advisory liasion to assist residents with the appeal process and with understanding FOIL and Open Meetings Laws and have an education lawyer on retainer to advise residents of their legal rights.  Petitioner also requests that respondent adopt policies to address student conflicts and parental threats and that petitioner be reimbursed for the expenses of this appeal.

Respondent counters that it was within its discretion to name a co-salutatorian and that the selection of co-salutatorians did not result in any demotion of petitioner’s daughter.  Respondent also alleges that the appeal must be dismissed as moot, for failure to join necessary parties and lack of standing.  Respondent also contends that I lack jurisdiction over the FOIL allegations and defamation issues raised in this appeal and asks that I disregard any new allegations raised by petitioner in his reply.

I will first address respondent’s procedural concerns.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the 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.

Respondent alleges that the appeal must be dismissed for failure to join the other co-salutatorian as a necessary party.  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 G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  In this case, the interests of E.M. would be adversely affected if the Commissioner were to grant the relief requested.  An affidavit of service reveals that E.M.’s mother was personally served with a notice of petition and petition.  Moreover, E.M. is represented by counsel in this appeal and response papers have been submitted on his behalf.  Therefore, the technical defect of failing to name E.M. in the caption is deminimis, did not result in any prejudice, and is not a sufficient basis for me to dismiss this appeal (seeAppeal of Diane P., 37 Ed Dept Rep 637, Decision No. 13,945).

To the extent petitioner requests that the board’s decision be overturned, the appeal, must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Tine, 46 Ed Dept Rep 579, Decision No. 15,600; Appeal of N.C., 46 id. 358, Decision No. 15,532; Appeal of Lombardo, 46 id. 282, Decision No. 15,508).  This is especially true when petitioner has sought interim relief as to all or most of his claims and that relief has been denied (Appeal of Martin, 41 Ed Dept Rep 35, Decision No. 14,605).  Here, the announcements have been made, the award ceremonies have been held and both students have graduated, leaving no possibility for meaningful relief.

Even if this appeal were not dismissed as moot, it would be dismissed on the merits.  Designation of a valedictorian or salutatorian is a local award for which reasonable standards may be imposed by a board of education (Appeal of Pesce, 47 Ed Dept Rep 497, Decision No. 15,765; Appeal of Martin, id. 35, Decision No. 14,605; Appeal of S.P., 37 id. 640, Decision No. 13,946).  Respondent’s decision to designate co-salutatorians was based on the minimal difference between the grade point averages of G.F. and E.M. and consistent with respondent’s past practice of appointing two valedictorians when grade point averages were extremely close.  I am satisfied from the record before me that the district’s method of selecting co-salutatorians is reasonable, that it followed its policy in this particular case and that its determination of class rank was neither arbitrary nor irrational.  I, therefore, find no basis to substitute my judgment in this matter (seeAppeal of Pesce, 47 Ed Dept Rep 497, Decision No. 15,765; Appeal of Jobson; 47 id. 347, Decision No. 15,719).

Petitioner’s FOIL allegations and defamation claims must be dismissed for lack of jurisdiction (seeApplication of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; and Appeal of Lilly, 43 id. 459, Decision No. 15,050).  In addition, the Commissioner has no authority to award reimbursements in an appeal pursuant to Education Law §310 (Appeal of F.P., 46 Ed Dept Rep 134, Decision No. 15,465; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).

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

THE APPEAL IS DISMISSED.

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