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Decision No. 14,402

Appeal of LEA SIMPSON, on behalf of BRANDON, KELSEY and ZACHARY SIMPSON, from action of the Board of Education of the Westport Central School District regarding shared decisionmaking.

Appeal of TIMOTHY SHERMAN, on behalf of BENJAMIN SHERMAN, from action of the Board of Education of the Westport Central School District regarding shared decisionmaking.

Appeal of CORI A. MEAD, on behalf of CURTIS K. MEAD, from action of the Board of Education of the Westport Central School District regarding shared decisionmaking.

Appeal of PENELOPE CONWAY, on behalf of FREDERICK CONWAY, from action of the Board of Education of the Westport Central School District regarding shared decisionmaking.

Decision No. 14,402

(July 19, 2000)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Norman H. Gross, Esq., of counsel

MILLS, Commissioner.--In separate appeals, petitioners challenge the adoption by the Board of Education of the Westport Central School District ("respondent") of a multi-age classroom learning structure in the absence of its compliance with the shared decisionmaking process. Because the appeals present identical facts and legal issues, they are consolidated for decision. The appeals must be dismissed.

Petitioners are the parents of students enrolled in respondent’s district. At its meeting on April 6, 1998, respondent decided to implement a multi-age classroom learning structure for the 1999-2000 school year. According to the board resolution, respondent’s superintendent was to work with district faculty during the course of the 1998-99 school year on steps necessary to prepare for the implementation of the new program. The parties disagree as to the extent of the discussions that occurred at the board and community level concerning multi-age classroom learning and the involvement of the district's shared decisionmaking team prior to respondent’s decision to implement the program. The appeals were initiated on August 13, 1999 and August 16, 1999. Petitioners’ requests for interim relief pending a determination of the merits were denied on September 3, 1999.

Petitioners submit that respondent did not follow its shared decisionmaking plan in reaching its decision to convert the district from a traditional classroom learning structure to a multi-age classroom learning structure. Petitioners further assert that respondent has failed to demonstrate the need for such a change in classroom structure. They also claim that respondent acted arbitrarily and capriciously by failing to adequately research multi-age classroom learning structures or other forms of educational learning structures before reaching its decision. Petitioners ask that respondent be directed to follow the Commissioner's shared decisionmaking regulation as well as the district's shared decisionmaking plan. They further request that respondent be directed to demonstrate the need to implement a change in classroom structure and to study other forms of learning structures. Finally, petitioners request that respondent be required to compile research based evidence and evaluate any changes in teaching structures or methods through the use of experiment and control groups.

Respondent asserts that the appeals are untimely. Respondent further submits that it has the authority to determine classroom grade-level groupings and that petitioners have failed to demonstrate that its decision was arbitrary, capricious or contrary to sound educational policy. Respondent contends that neither the Commissioner’s regulations nor the district’s shared decisionmaking plan required its use of the shared decisionmaking process in reaching a decision in this matter. Respondent also asks that I disregard petitioners’ reply papers because they include new assertions and exhibits.

Petitioners submitted a reply with exhibits. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Mennella, 39 Ed Dept Rep 306, Decision No. 14,245; Appeal of Morris, et. al., 38 id. 427, Decision No. 14,066; Appeal of Foshee, 38 id. 346, Decision No. 14,051). Accordingly, I will not consider those portions of petitioners’ reply that constitute new allegations or evidence which is not responsive to new material or affirmative defenses in respondent’s answer.

The appeals must be dismissed as untimely. The record indicates that respondent’s decision to implement the multi-age classroom learning structure occurred on April 6, 1998 and that these appeals were commenced on August 13 and 16, 1999, over sixteen months later. An appeal to the Commissioner of Education must be instituted within 30 days from the making of a decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Malone and Trombley, 39 Ed Dept Rep 135, Decision No. 14,194; Appeal of Phillips, 38 id. 297, Decision No. 14,038; Appeal of Woodward, 36 id. 445, Decision No. 13,773).

Petitioners do not contest that respondent adopted the multi-age classroom learning structure on April 6, 1998. However, they maintain that shared decisionmaking could have occurred after that date and that the appeals are timely because the multi-age learning structure was not intended to be put into effect in district classrooms until the 1999-2000 school year. I find this argument to be without merit.

The record reflects that respondent discussed the multi-age learning structure at numerous meetings prior to its decision to adopt the new learning structure. During the 1998-99 school year, the matter was discussed at several board meetings as well as a parent information night. In addition, there were also meetings with faculty to educate, train and prepare them for the use of multi-age learning in the classroom during the 1999-2000 school year. After its adoption of the new learning structure, respondent took affirmative steps to implement the program in district classrooms during the 1999-2000 school year. I find respondent's decision to give district staff, parents and students time to adequately prepare for the new program entirely reasonable. Such action does not extend petitioners’ time to appeal respondent’s threshold decision to implement the plan (Appeal of Woodward, supra). If petitioners objected to the process used by respondent in reaching its decision to convert the district to a multi-age learning structure, they should not have waited until one month before the start of the school year in which the program was to be implemented to commence their appeals.

While I need not address petitioner’s alternative theories of timeliness asserted for the first time in their reply since they constitute belated arguments that should have been asserted within the petition, the appeals would nonetheless be dismissed if they were considered (Appeal of Phillips, supra). Petitioners claim that they had no knowledge that respondent did not use the shared decisionmaking process until the August 12, 1999 board meeting. As set forth above, there is evidence in the record indicating that the matter was discussed at board meetings and in other forums both before and after respondent's adoption of the plan on April 6, 1998. As such, I cannot find good cause to justify petitioners' delay in initiating these appeals for over sixteen months. Furthermore, petitioners fail to provide any evidence of a continuing wrong sufficient to justify an extension of the regular appeal period. In any event, I reject petitioners’ claim that respondent's alleged failure to utilize the shared decisionmaking process in this instance constitutes a continuing wrong (Appeal of Caldwell et. al., 36 Ed Dept Rep 296, Decision No. 13,729; Appeal of Akshar, 35 id. 424, Decision No. 13,590). Finally, in the instant appeals, the fact that petitioners tried to resolve their differences with respondent before commencing an appeal is also insufficient and does not constitute good cause for such extensive delay (Appeal of Decker, 39 Ed Dept Rep 62, Decision No. 14,173; Appeal of Johnson, 38 id. 524, Decision No. 14,086; Appeal of Ytuarte, 36 id. 238, Decision No. 13,712).

In light of the foregoing disposition, I will not address the parties remaining claims.

THE APPEALS ARE DISMISSED.

END OF FILE