Appeal of C.W., on behalf of her child, from action of the Board of Education of the Oakfield-Alabama Central School District regarding access to school property and student discipline.

Decision No. 18,253

(March 20, 2023)

The Legal Aid Society of Rochester, New York, attorneys for petitioner, Vipan S. Lang, Esq., of counsel

Hodgson Russ LLP, attorneys for respondent, Andrew J. Freedman, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Oakfield-Alabama Central School District (“respondent” or the “board”) prohibiting her child (the “student”) from accessing school property.  The appeal must be sustained to the extent indicated.

This appeal arises out of the circumstances described in Appeal of C.W. (61 Ed Dept Rep, Decision No. 18,121).  In brief, the student made concerning statements for which respondent imposed short- and long-term suspensions in fall 2021.[1]  Petitioner appealed.  In a decision dated May 16, 2022, I sustained the appeal in part, ordering:  (1) expungement of the student’s short-term suspension, (2) expungement of any reference to a “permanent suspension” from his educational record, and (3) “that respondent immediately re-admit the student to school in the Oakfield-Alabama Central School District.”

On May 31, 2022, respondent’s superintendent wrote to petitioner, indicating that although the student’s “out-of-school suspension ha[d] ended,” the district believed that his “presence on school property pose[d] serious and significant safety concerns to the school community.”  The superintendent then banned the student from school grounds unless the student obtained written permission from the principal or superintendent.  A violation of this directive, he wrote, would be reported to the police.  Petitioner appealed this action to respondent, which denied her appeal on July 29, 2022.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 8, 2022.

Petitioner argues that respondent unlawfully banned the student from school property because such exclusion constituted discipline and respondent otherwise failed to provide any reason therefor.  Petitioner further contends that respondent’s actions constitute unlawful discrimination.  Petitioner requests orders directing respondent to treat the student lawfully and “expung[ing] [the student’s] short-term and long-term suspensions related to this incident or any reference” thereto from his record.

Respondent argues that it possesses the authority to impose reasonable restrictions on the rights of individuals, including resident students, to access its property.  Respondent denies that its actions were disciplinary or discriminatory in nature. 

School boards may impose reasonable restrictions on individuals’ access to school property (Appeal of Brockway, 62 Ed Dept Rep, Decision No. 18,218; Appeal of Anonymous, 48 id. 503, Decision No. 15,931; Appeal of Anonymous, 48 id. 266, Decision No. 15,855; Appeal of Anonymous, 44 id. 260, Decision No. 15,167).  This authority, however, does not apply to a district’s resident students, who have a constitutional right to a sound basic education therein (see generally Appeal of McNamara, 37 Ed Dept Rep 326, Decision No. 13,871).  Any board prohibition on a resident student’s right to access school grounds must be imposed in connection with a suspension from instruction—which must, in turn, comply with the due process protections of Education Law § 3214.

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).

The appeal must be sustained to the extent indicated.  Fifteen days after I issued my decision in Appeal of C.W. (61 Ed Dept Rep, Decision No. 18,121), the superintendent banned the student from district property, permitting such access only with permission from himself or the high school principal.  Then and now, the superintendent has identified no new circumstances that occurred within that fifteen-day window to support the ban.  Instead, he argues that the property ban is justified by the student’s prior misconduct, some of which dates to 2018.[2]

For the reasons identified above, I find that respondent exceeded its authority to restrict the student’s access to school property.  I further find that respondent improperly imposed disciplinary consequences for prior misconduct in violation of Education Law § 3214.  Here, respondent had no basis upon which to revisit the student’s prior disciplinary history.  School districts may only take adverse action against students based upon prior disciplinary incidents where a student’s anecdotal record is:  (1) received into evidence at the penalty phase of a long-term suspension hearing; and (2) considered for the sole purpose of determining a penalty (Appeal of C.B., 57 Ed Dept Rep, Decision No. 17,272; Appeal of T.S., 57 id., Decision No. 17,233; Appeal of a Student Suspected of Having a Disability, 46 id. 453, Decision No. 15,562).  Most of the incidents of which respondent complains resulted in suspensions from instruction.  Those determinations represent respondent’s final determination as to the appropriate discipline under the circumstances; such prior incidents may not be resurrected, years later, to ban a student from school property (see Appeal of J.W., 60 Ed Dept Rep, Decision No. 18,007).  To hold otherwise would permit respondent to evade the protections outlined in Education Law § 3214.

Respondent’s general fears concerning school safety do not support a contrary result.  After cataloguing the student’s prior disciplinary record, the board president asserts:

there have been over twenty-five ... mass school shootings ... Those responsible for these horrendous acts are often current or former students with ... grievances or ideations [similar to those expressed by the student] ... [T]he board was not willing to take any chances with the safety and well-being of students and staff by allowing [the student] unfettered access to school grounds ....

While it is undeniable that “our nation is beset by an epidemic of such shootings”, and “school officials [must] retain the ability to protect their students and staff” (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,834), these sentiments do not provide districts with unfettered license to disregard students’ rights. 

Moreover, respondent’s quoted rationale for banning the student from school property is not supported by the evidence in the record.  There is no evidence, for example, that the student has ever possessed a firearm.  Indeed, many of his statements and conduct have contemplated self-harm.  These actions constituted a cry for help, not punishment.

I decline, however, to modify or clarify my previous order concerning the long-term suspension at issue in Appeal of C.W. (61 Ed Dept Rep, Decision No. 18,121) from the student’s record.[3]  Petitioner’s request amounts to a request to reopen that decision, which is untimely (8 NYCRR 276.8 [a] [application to reopen must be commenced within 30 days after the underlying decision]).

The student, BOCES, and respondent’s committee on special education have all moved on from this disciplinary incident that occurred over two years ago.  It is time for respondent to do the same.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, as of the date of this decision, the conditions imposed upon the student in respondent’s May 31, 2022 determination are annulled.

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