Appeal of J.B., on behalf of her child, from action of the Board of Education of the Whitesboro Central School District, Brian Bellair, in his capacity as superintendent, and John Egresits, in his capacity as principal, regarding student discipline.

Appeals of S.R., on behalf of her children, from action of the Board of Education of the Williamsville Central School District, Darren J. Brown-Hall, in his capacity as superintendent, and William J. Bohen, in his capacity as principal, regarding student discipline.

Appeal of R.P., on behalf of his child, from action of the Board of Education of the Lancaster Central School District, Michael J. Vallely, in his capacity as superintendent, and Amanda Karnath, in her capacity as principal, regarding student discipline.

Appeal of P.S., on behalf of his child, from action of the Board of Education of the City School District of the City of Salamanca, Robert J. Breidenstein, in his capacity as superintendent, and Nicole Beaver, in her capacity as principal, regarding student discipline.

Appeal of A.H., on behalf of her child, from action of the Board of Education of the City School District of the City of Salamanca, Robert J. Breidenstein, in his capacity as superintendent, and Nicole Beaver, in her capacity as principal, regarding student discipline.

Appeal of J.V., on behalf of her child, from action of the Board of Education of the Coxsackie-Athens Central School District, Randall Squier, in his capacity as superintendent, and Freya Mercer, in her capacity as principal, regarding student discipline.

Appeal of K.H., on behalf of her child, from action of the Board of Education of the Hamburg Central School District, Michael Cornell, in his capacity as superintendent, and Danielle Lango, in her capacity as principal, regarding student discipline.

Appeal of K.H., on behalf of her child, from action of the Board of Education of the Hamburg Central School District, Michael Cornell, in his capacity as superintendent, and Thomas Adams, in his capacity as principal, regarding student discipline.

Appeals of R.D., on behalf of his children, from action of the Board of Education of the Orchard Park Central School District, David Lilleck, in his capacity as superintendent, and Diana Nigro, in her capacity as principal, regarding student discipline.

Appeals of R.D., on behalf of his children, from action of the Board of Education of the Orchard Park Central School District, David Lilleck, in his capacity as superintendent, and Brandon Hafner, in his capacity as principal, regarding student discipline.

Appeal of J.G., on behalf of her child, from action of the Board of Education of the Greece Central School District, Kathleen Graupman, in her capacity as superintendent, and Jason Juszczak, in his capacity as principal, regarding student discipline.

Appeal of J.R., on behalf of his child, from action of the Board of Education of the West Seneca Central School District, Matthew J. Bystrak, in his capacity as superintendent, and Jason R. Winnicki, in his capacity as principal, regarding student discipline.

Appeal of P.S., on behalf of his child, from action of the Board of Education of the Albion Central School District, Mickey Edwards, in his capacity as superintendent, and Angela Conway, in her capacity as principal, regarding student discipline.

Appeal of K.L., on behalf of her child, from action of the Board of Education of the Hamburg Central School District, Michael Cornell, in his capacity as superintendent, and Thomas Adams, in his capacity as principal, regarding student discipline.

Appeal of K.M, on behalf of her child, from action of the Board of Education of the Grand Island Central School District, Brian Graham, in his capacity as superintendent, and Jon Lattanzio, in his capacity as principal, regarding student discipline.

Appeal of J.B., on behalf of her child, from action of the Board of Education of the Hamburg Central School District, Michael Cornell, in his capacity as superintendent, and Thomas Adams, in his capacity as principal, regarding student discipline.

Decision No. 18,208

(October 26, 2022)

Bond, Schoeneck & King PLLC, attorneys for the Albion Central School District respondents, Lakshmi S. Mergeche, Esq., of counsel

Ferrara Fiorenza PC, attorneys for the Whitesboro Central School District respondents, Thomas F. Barrett, Esq., of counsel

Harris Beach PLLC, attorneys for the Williamsville Central School District, Lancaster Central School District, and Greece Central School District respondents, Tracie L. Lopardi and Laura M. Purcell, Esqs., of counsel

Hodgson Russ LLP, attorneys for the West Seneca Central School District and Grand Island Central School District respondents, Lindsay A. Menasco, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind, & Gregory, LLP, attorneys for the Coxsackie-Athens Central School District respondents, Daria Gerasimova, Esq., of counsel

Webster Szanyi LLP, attorneys for the City School District of the City of Salamanca, Orchard Park Central School District, and Hamburg Central School District respondents, Marnie E. Smith, Esq., of counsel

ROSA., Commissioner.--In these appeals, petitioners challenge various actions of respondents regarding student discipline and seek to remove numerous superintendents and principals from their positions in connection therewith.  Because the appeals arise out of similar facts and circumstances and present similar issues of fact and law, they are consolidated for decision (8 NYCRR 275.18).  The appeals must be dismissed and the applications for removal denied.

On January 24, 2022, a Nassau County trial court judge invalidated the New York State Department of Health (“NYSDOH”) rule mandating that face coverings be worn in all public buildings, including schools (see Demetriou v New York State Dept. of Health, 74 Misc 3d 792, 794 [Nassau County Sup Ct 2022]).  NYSDOH appealed the decision and requested a stay so the mandate would remain in effect.  The stay was granted in the afternoon of January 25, 2022 (see Order to Show Cause in Demetriou v New York State Dept. of Health, Index No. 616624/2021 [2d Dept 2022], available at https://ag.ny.gov/sites/default/files/matter_of_demetriou_v_new_york_state_department_of_health_2022-00532.pdf [last accessed Oct. 26, 2022]).

Petitioners are the parents of school-aged children (collectively, the “students”) who attended school on January 25, 2022 without wearing face coverings.  Respondents comprise the boards of education, superintendents, and principals of the schools the students attended.  In each of these appeals, respondents asked the students to wear face coverings on January 25, 2022.  In some cases, the students complied with the request.  In other cases, the students left school to avoid wearing a face covering.  These appeals and applications ensued.  Petitioners’ requests for interim relief were denied.

Petitioners argue that respondents unlawfully required the students to wear face coverings at school on January 25, 2022 and impermissibly disciplined the students for failing to do so.  Petitioners seek (1) to have all disciplinary records relating to the incidents of January 25, 2022 expunged; (2) an order permitting the students to attend school without wearing face coverings; and (3) removal of the administrators named as respondents pursuant to Education Law § 306.

Respondents argue, among other things, that the appeals must be dismissed as moot and that removal of the named administrators is unwarranted.

The appeals 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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).

As of March 2, 2022, NYSDOH’s mask rule is no longer in effect; thus, facial coverings are no longer mandatory in New York schools (Appeal of M.F., 61 Ed Dept Rep, Decision No. 18,122).  Additionally, respondents do not maintain any records of student discipline for any of the students related to their failure to wear face coverings on January 25, 2022.  Notably, out of the 20 students at issue in these appeals, only one appears to have been disciplined for refusing to wear a face covering.[1]  Thus, no further relief can be afforded, and the appeals are hereby dismissed as moot.

Insofar as petitioners seek removal of the named administrators pursuant to Education Law § 306, the applications must be denied.  The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  Under the Education Law, the term “school officer” includes any “elective or appointive officer in a school district whose duties generally relate to the administration of affairs connected with the public school system” (Education Law § 2 [13]; see Appeal of Johnston, 50 Ed Dept Rep, Decision No. 16,184).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

To the extent petitioners seek removal of school principals, section 306 is inapplicable because principals are not school officers subject to removal (see Appeal of L.B., 56 Ed Dept Rep, Decision No. 16,998).  To the extent petitioners seek to remove superintendents, petitioners have failed to demonstrate that the superintendents willfully violated a provision of the Education Law or disobeyed an order or regulation of the Board of Regents or the Commissioner.[2]  Accordingly, the requests for removal are denied.

Given the above conclusions, any individual respondents within the scope of Education Law § 3811 are entitled to certification that they acted in good faith.  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  I hereby certify for the purpose of Education Law § 3811 that each individual respondent subject to its provisions acted in good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

To the extent they are not explicitly addressed herein, petitioners’ remaining arguments are without merit.

THE APPEALS ARE DISMISSED.

THE APPLICATIONS FOR REMOVAL ARE DENIED.

END OF FILE