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Decision No. 14,615

Appeal of J.L., on behalf of her daughter L.G., from action of the Board of Education of the Pittsford Central School District regarding participation in an Urban Suburban Interdistrict Transfer Program.

Decision No. 14,615

(August 3, 2001)

Harris Beach & Wilcox, LLP, attorneys for respondent, Edward A. Trevvett, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals a determination by the Board of Education of the Pittsford Central School District ("respondent") terminating her daughter's participation in its Urban Suburban Interdistrict Transfer Program. The appeal must be dismissed.

Respondent is one of six suburban school districts that voluntarily participates with the Rochester City School District in an Urban Suburban Interdistrict Transfer Program ("Urban Suburban Program"). The purpose of the Urban Suburban Program is to provide school placement options, through interdistrict transfer opportunities for both urban and suburban students, to promote educational options and intercultural opportunities for children of multiple ethnic backgrounds as they attend school together. The Urban Suburban Program accepts applications from students wishing to participate in the transfer program and assists in placing those students in a participating school district. The Urban Suburban Program provides support to the student through its school/community liaisons.

Petitioner's daughter, a resident of the Rochester City School District, participated in the Urban Suburban Program during the 1999-2000 school year. She was placed in respondent's school district where she attended fifth grade. Throughout the 1999-2000 school year numerous communications and meetings occurred regarding L.G.'s academic progress. Respondent's staff indicated it was unable to obtain parental support and cooperation in addressing academic concerns. By letter dated April 27, 2000, respondent's elementary school principal notified petitioner that he recommended L.G. not continue in the Urban Suburban Program in respondent's school district in the 2000-01 school year. The letter stated, "For the three years [L.G.] has been at Park Road School you have not allowed the classroom teachers to provide the instructional assistance and services [L.G.] has needed to be a successful learner." Pursuant to Urban Suburban Program procedures, petitioner sought review of the principal's recommendation by respondent's superintendent of schools. By letter dated June 7, 2000 respondent's superintendent notified petitioner that he had accepted the principal's recommendation not to continue L.G. in the Urban Suburban Program at respondent's school district. He further informed petitioner that the Urban Suburban Program liaison had offered her assistance in L.G.'s transition. Petitioner initiated this appeal by service of a petition on August 2, 2000. Petitioner's request for interim relief directing that her daughter remain in the Urban Suburban Program in respondent's school district during the pendency of this appeal was denied.

Petitioner seeks review of the June 7, 2000 determination terminating her daughter's placement in respondent's school district and participation in the Urban Suburban Program. She claims the decision resulted from a breakdown in communication between respondent's administrative staff and L.G.'s parents, rather than L.G.'s performance in the program. She seeks an order directing L.G.'s continuation in the Urban Suburban Program in respondent's school district; directing respondent, the Urban Suburban Program and L.G.'s parents to come to consensus on L.G.'s placement; and ensuring that all schools participating in the Urban Suburban Program appoint a parent representative from their elementary, middle and high schools to their respective parent-teacher associations.

Respondent asserts that petitioner lacks standing to maintain this appeal, that neither the petition nor the reply is verified, that the appeal is untimely and that petitioner has failed to join the Urban Suburban Program as a necessary party. Respondent further asserts that the decision not to continue L.G. in the Urban Suburban Program at its schools is in all respects proper.

I will first address respondent's procedural allegations regarding verification of petitioner's pleadings. Pursuant to ""275.5 and 275.6 of the Regulations of the Commissioner of Education, all pleadings in an appeal must be verified and an affidavit of verification attached. Merely notarizing a signature does not constitute verification of a pleading. Respondent correctly notes that petitioner's reply did not contain an affidavit of verification. Therefore, it may not be considered as part of the record in this appeal. However, the petition filed with my Office of Counsel did contain an affidavit of verification and, therefore, is properly before me.

Respondent's contention that petitioner lacks standing to maintain this appeal is without merit. To maintain an appeal pursuant to Education Law "310, a party must be aggrieved in the sense of having suffered personal injury to his or her civil, personal or property right (Appeals of Patashnick and Waters, 39 Ed Dept Rep 236, Decision No. 14,225). Respondent asserts that petitioner lacks standing because L.G. has no right or entitlement to participate in the Urban Suburban Program. However, the nature of L.G.'s rights and entitlements, if any, would be resolved upon reaching the merits of the appeal. The fact that L.G.'s rights remain an open question at this juncture does not preclude petitioner from having standing to assert such rights on behalf of her daughter. As the parent of L.G., petitioner has standing to challenge L.G.'s dismissal from the Urban Suburban Program and, thus, to maintain this appeal.

The appeal must, however, be dismissed as untimely. 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. Urban Suburban Program procedures provide for review by the superintendent of a participating school of any determination regarding a student's participation in the program. By letter dated June 7, 2000, respondent's superintendent notified petitioner of his decision not to continue L.G. in the Urban Suburban Program in respondent's school. Petitioner did not serve a petition initiating this appeal until August 2, 2000 - outside the 30-day time period. Petitioner claims that she did not receive the June 7 letter, as it was sent to her post office box address instead of to her residence. She does not claim that the post office box address was incorrect or that she had directed respondent not to use that address to communicate with her. Moreover, the record indicates that on June 26, 2000, petitioner sought mediation of the decision not to continue her daughter in the Urban Suburban Program - a fact that indicates she had received the decision. Therefore, allowing five days for mailing, I find petitioner's time to appeal commenced to run on June 12, 2000. Because the petition was not served until August 2, 2000, the appeal is untimely. Even if petitioner's time to appeal was calculated from June 26 - the date she requested mediation of the decision - service on August 2 would still be untimely. In the alternative, petitioner requests that her delay in commencing the appeal be excused because she needed time to "react and gather information." Petitioner does not offer any explanation for her failure to gather information necessary to bring the appeal in a timely manner. Therefore, I find no basis on which to excuse petitioner's delay.

The appeal is also dismissed for failure to join necessary parties. Pursuant to 8 NYCRR "275.1, parties whose rights may be adversely affected by the outcome of an appeal must be joined as parties to the appeal. As part of her request for relief, petitioner seeks an order ensuring that all school districts participating in the Urban Suburban Program appoint a parent representative from their elementary, middle and high school to their respective parent-teacher associations. As such an order necessarily would affect each of those participating school districts, petitioner was required to join them as parties to this appeal. Petitioner's failure to do so also requires dismissal.

In view of the dismissal of this appeal on procedural grounds, I will not address the parties other claims.

THE APPEAL IS DISMISSED.

END OF FILE