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Decision No. 13,544

Appeal of SCOTT SHABOT, on behalf of his son, JORDAN SHABOT, from action of the Board of Education of the East Ramapo Central School District regarding student placement.

Decision No. 13,544

(January 31, 1996)

Greenberg, Wanderman & Fromson, attorneys for respondent, Stephen M. Fromson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the policy of the Board of Education of the East Ramapo Central School District ("respondent") regarding enrollment in its three junior high schools. The appeal must be dismissed.

The East Ramapo Central School District operates three junior high schools, Kakiak, Pomona and Spring Valley. Petitioner alleges that Kakiak operates at approximately 50 percent capacity while Pomona runs at almost 100 percent, thereby denying children equal educational opportunities and resulting in unnecessary transportation costs. Although petitioner acknowledges that respondent has hired a consultant to study the situation during the 1995-96 school year, he characterizes the problem as "deliberate overcrowding" and asks me to direct respondent to change its policy.

Respondent raises a number of defenses including lack of standing, failure to comply with the requirements for a petition, and failure to state a claim.

The appeal must be dismissed for lack of standing. An individual may not maintain an appeal pursuant to Education Law '310 unless he is aggrieved in the sense that he has suffered personal damage or injury to his rights (Appeal of Goloski, 34 Ed Dept Rep 565; Appeal of Ulcena, 33 id. 328). Although petitioner has purportedly brought this appeal on behalf of his son, Jordan, the petition is devoid of any allegation establishing injury to him. Further, respondent contends, and petitioner has not denied, that Jordan is not affected in any way by the current situation because he is in the fifth grade and will not attend junior high school until the 1997-98 school year.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Pupil placement is a matter of educational policy, which lies within the professional judgment and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, 485 NYS2d 358, citing, Hoffman v. Board of Educ., 49 NY2d 121, 424 NYS2d 376 and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564, 435 NYS2d 358; Appeal of Sponcy, 33 Ed Dept Rep 126). Accordingly, absent a showing that respondent's policy is arbitrary, capricious, or an abuse of discretion, such determination may not be disturbed (Matter of Britt v. Rogers, supra; Appeal of Goldup, 30 Ed Dept Rep 477). In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Nash, 35 Ed Dept Rep ___, Decision No. 13,516 dated November 15, 1995; Appeal of Haff, 35 id. 130) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). On the record before me, petitioner has failed to establish facts sufficient to conclude that respondent's policy is arbitrary, capricious, or an abuse of discretion. Rather, respondent's decision to hire a consultant to study the situation and to make recommendations before changing its policy is reasonable.

THE APPEAL IS DISMISSED.

END OF FILE