Petitioner in this appeal to the New York State Commissioner of Education sought the removal of a member of a
The decision of the Commissioner of Education, Decisions of the Commissioner of Education No. 18,474, is set out below:
"Petitioner’s child (“student”) attends
respondent’s high school. During a board meeting on
"Respondent argued that the GSA could be “better named” because the word “sexualities” was salacious. Respondent further opined that the board had a degree of authority to regulate student clubs, citing the “North American Man Boy Love Association” and the (hypothetical) “intersex student pole dancing instruction club” as examples.
"At subsequent board meetings on March 27
and
"As pertinent here, respondent made
additional remarks during a
"Petitioner argues that respondent’s
comments at the March 13 and
"Respondent contends that the application should be dismissed as untimely. Respondent also contends that petitioner’s allegations do not support the relief requested.
"First, I must address a procedural matter. Following commencement of this application, petitioner submitted additional evidence in the form of legal costs incurred by the board in connection with the student’s Dignity for All Students Act (“Dignity Act”) complaint filed against respondent. Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5). While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).
"Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). The board’s legal costs incurred in response to the student’s Dignity Act complaint are not relevant to the issues presented in this application. As such, they will not be considered.
"The application must be denied as
untimely. An appeal to the Commissioner must be commenced within 30 days
from the decision or act complained of, unless any delay is excused by the
Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena,
57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457,
Decision No. 15,914). The 30-day timeframe also applies to a removal
application pursuant to Education Law § 306 (8 NYCRR 277.1; Application
of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of
Budich, 48 id. 383, Decision No. 15,892).
Petitioner did not commence the instant appeal until
"Petitioner asserts that the petition is timely because it was commenced within 30 days of the board’s denial of the student’s Dignity Act complaint concerning the above remarks. This is an insufficient basis to excuse petitioner’s delay in commencing the removal proceeding (see Appeal of Carlson, 63 Ed Dept Rep, Decision No. 18,304; Application of S.D., 60 id., Decision No. 18,009; Appeal of D.B., 59 id., Decision No. 17,807). “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245). Respondent’s statements were made during public meetings, which provided petitioner with constructive notice thereof (Appeal of L.N. et al., 61 Ed Dept Rep, Decision No. 18,105).[1] Accordingly, the application must be denied.
"Although the application must be denied as untimely, respondent’s March 2023 remarks—particularly his invocation of a pedophile advocacy organization while discussing the propriety of the GSA—were unnecessarily inflammatory. His argument that the word “sexualities” is provocative is unsupported by the record. Respondent’s own code of conduct uses the phrases “sex” and “sexual orientation” several times—as does as a plain language summary thereof designed for elementary school students.[2] I remind respondent that board members may not “us[e] a pretext of inappropriateness or obscenity” to disparage “lesbian, gay, bisexual, transgender, nonbinary and gender expansive people ...” (Appeal of Moms for Liberty of Wayne County and Marchitell, 63 Ed Dept Rep, Decision No. 18,402).
"Additionally, respondent prolonged the instant controversy by defending his remarks over the next several months. Board members take an oath of office to uphold the law and faithfully discharge their duties (NY Const, art XIII, § 1; Public Officers Law § 10; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315). This includes the “duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district” (Appeal of Williams, 61 Ed Dept Rep, Decision No. 18,116). The time spent addressing respondent’s remarks and the ensuing controversy was far from constructive. I admonish respondent to avoid such digressions in the future.
"In light of this disposition, I need not address the parties’ remaining arguments.
"THE APPLICATION IS DENIED."
Footnotes:
[1] Alternatively, petitioner
demonstrated his actual knowledge of the March and September 2023 comments at
meetings of the board on
[2] Mohonasen Central School District, “Districtwide Code of Conduct,” available at https://www.mohonasen.org/about-us/policies-and-procedures/districtwide-code-of-conduct/(link is external) and “Code of Conduct Plain Language Summary for Elementary School Students,” available at https://www.mohonasen.org/code-of-conduct-plain-language-summary-for-elementary-students/(link is external) (last accessed Aug. 2, 2024).
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