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Decision No. 14,469

Appeal of MARY McATEER, on behalf of ANDREW McATEER, from action of the Board of Education of the Port Jefferson Union Free School District regarding non-resident student admission.

Decision No. 14,469

(September 27, 2000)

Ingerman Smith, LLP, attorneys for respondent, Neil Block, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Port Jefferson Union Free School District ("respondent") denying her son permission to attend its schools as a non-resident student. The appeal must be dismissed.

Petitioner and her son, Andrew, reside outside of respondent’s school district. Pursuant to Education Law "3202(2), respondent adopted a policy for the admission of non-resident tuition-paying students. Respondent’s "Admission of Non-Resident Students" policy provides, in pertinent part: "Non-resident students will be permitted in the Port Jefferson Union Free School District only if, in the judgment of the Superintendent of Schools:… The admission of the non-resident student is and continues during the enrollment period to be in the best interests of the district."

During the 1998-99 school year, Andrew attended Earl L. Vandermeulen High School in respondent’s district as a non-resident tuition-paying student. In April 1999, Andrew was hospitalized for one week. Petitioner claims that, subsequent to her son’s hospitalization, Andrew was not permitted to return to school for three weeks. Thereafter, Andrew returned to Earl L. Vandermeulen High School and completed the 1998-99 school year.

By letter dated July 6, 1999, respondent’s superintendent notified petitioner that Andrew would not be permitted to attend high school in respondent’s district as a tuition-paying student. The letter indicated that the superintendent had reviewed Andrew’s academic records and determined that the district’s high school could not meet his academic needs. Petitioner appealed the superintendent’s decision to respondent. By letter dated August 16, 1999, respondent’s president notified petitioner that respondent upheld the superintendent’s decision. This appeal ensued.

Petitioner claims that respondent has improperly suspended her son from attendance at its schools without affording him appropriate due process. She challenges the alleged suspension of her son in April 1999, as well as respondent’s August 16, 1999 decision denying him permission to attend its school district in 1999-2000 as a non-resident tuition-paying student. Petitioner claims that the alleged suspensions violate her son’s civil rights. Petitioner does not challenge respondent’s non-resident student admission policy.

Respondent contends that Andrew was not suspended from attendance at its schools. Respondent also argues that petitioner’s appeal from the alleged April 1999 suspension is time-barred. Finally, respondent asserts that its decision to deny Andrew admission as a non-resident tuition-paying student for the 1999-2000 school year is not illegal and is consistent with board policy.

Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision or action complained of. The petition in this appeal was served on August 26, 1999 – more than 30 days after petitioner’s son was allegedly suspended in April 1999. Therefore, I find that part of petitioner’s appeal untimely.

Petitioner’s claims regarding respondent's August 16, 2000 denial of her request to enroll her son as a non-resident tuition-paying student must also be dismissed. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR "275.10) and the burden of demonstrating a clear legal right to the relief sought (Appeal of Gaul, et al., 40 Ed Dept Rep ____, Decision No. 14,432; Appeal of Kozak, 39 id. 278, Decision No. 14,237). Petitioner challenges respondent’s August 16, 1999 decision on two grounds. First, she characterizes the decision as an improper suspension from attendance without appropriate due process. Petitioner is incorrect. Respondent has not imposed a disciplinary penalty of suspension upon petitioner’s son. Instead, respondent has exercised its discretion pursuant to Education Law "3202(2) and its policy adopted thereunder, and denied petitioner’s request to enroll her son as a non-resident tuition-paying student. Thus, the due process requirements related to student suspensions (Education Law "3214) are not applicable here.

The record also indicates that, to the extent that petitioner's son was entitled to any due process prior to respondent's denial of petitioner’s request for his admission as a non-resident student, such due process was afforded to him. A student has a legal right to attend school only in the district in which the student resides (Education Law "3202[1]). Non-resident students may be permitted to attend the schools of a district in which they do not reside but only upon the express consent of the district’s board of education (Appeal of Holzer, 37 Ed Dept Rep 549, Decision No. 13,924):

Nonresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board (Education Law "3202[2]) (emphasis supplied).

The decision to permit the attendance of non-resident students is discretionary with the board of education. Absent any right to attend respondent’s school district, petitioner’s son need only be afforded minimal due process with respect to respondent’s decision to deny his readmission. Here, petitioner had an opportunity to speak with respondent’s superintendent in a telephone conversation on August 10, 1999 regarding the superintendent’s July 6, 1999 decision. She also appealed to respondent by letter dated August 11, 1999 setting forth her concerns and challenges to the decision. Respondent considered petitioner’s letter before rendering its August 16, 1999 decision to uphold the superintendent. I find, therefore, that petitioner's son was afforded appropriate due process with respect to respondent’s denial of his request for admission pursuant to its non-resident student admission policy.

Petitioner also claims, in a conclusory fashion, that respondent has violated her son’s civil rights. Petitioner presents no facts or details with respect to this claim. Petitioner states only that it is her belief that "a public school district may dismiss all resident students but may not selectively dismiss some non-resident students." She does not allege the basis upon which she believes her son may have been discriminated against by respondent. Likewise, petitioner does not set forth any further claims or allegations upon which to conclude that her son’s civil rights were violated. As noted above, in an appeal to the Commissioner petitioner has the burden of proving the factual basis for the allegations asserted. Aside from her conclusory statements, petitioner has failed to set forth any basis for her claim.

Because petitioner has failed to establish the facts or legal basis on which to conclude that her son’s rights have been violated, I find no basis to overturn respondent’s determination (See, Appeal of World Network International Services, Inc., 38 Ed Dept Rep 800, Decision No. 14,146; Appeal of Shabazz, 38 id. 481, Decision No. 14,076; Appeal of Friedberg, 34 id. 284, Decision No. 13,311).

Although the appeal is dismissed, I am compelled to comment with respect to respondent’s non-resident student admission policy. Petitioner does not challenge respondent’s non-resident student admission policy in this appeal. I note, however, that the policy is, in part, set forth in broad terms. As noted above, the policy provides that non-resident students may continue to attend respondent’s schools if, in the superintendent’s judgment, such admission is "in the best interests of the district." In light of the vagueness of that criteria, respondent is

cautioned to ensure that its policy is applied uniformly

and evenhandedly.

THE APPEAL IS DISMISSED.

END OF FILE