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Decision No. 15,249

Appeal of JOY POLANCO, on behalf of her son JUSTIN, from action of the New York City Department of Education regarding attendance zones.

Decision No. 15,249

(July 15, 2005)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Kimberly Conway, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the New York City Department of Education ("respondent") denying her son a transfer from P.S. 135 to P.S. 18. The appeal must be dismissed.

Until January 14, 2005, the New York City Department of Education had a regulation in effect which allowed parents to request that their children be transferred from a school in one community school district to a school in another community school district. This regulation was often referred to as "parental choice." In September 2004, petitioner requested that her son, Justin, be allowed to transfer from P.S. 135, an elementary school in his attendance zone in Community School District 29, to P.S. 18 in Community School District 26. In October 2004, petitioner received two letters denying her request and appealed the denial to Chancellor Klein. By letter dated November 11, 2004, Chancellor Klein's office upheld the decision to deny the transfer request. This appeal ensued.

Petitioner argues that P.S. 18 is academically better and less crowded, and that there is space available in its kindergarten classes. Petitioner also claims that the letters denying her request for a variance did not give a reason for the denial.

Respondent asserts that the decision to deny petitioner's request was neither arbitrary nor capricious. Respondent argues that in accordance with the parental choice regulation, it needed to ensure that spaces at P.S. 18 were available to intra-district transfers (transfers within Community School District 26) first. Additionally, respondent asserts that in accordance with the No Child Left Behind Act ("NCLB") and �120.3 of the Commissioner's regulations, priority for transfers had to be given to students who attend schools in "persistently dangerous," "school improvement," "corrective action" or " restructuring" status.

Pursuant to Education Law �2590-h(17), the Chancellor has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (see alsoMatter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Alves, 44 Ed Dept Rep ___, Decision No. 15,190; Appeal of B.S., 44 id. ___, Decision No. 15,188). A board of education has broad discretion regarding the assignment of students to schools (Matter of Addabbo v. Donovan, et al., 22 AD2d 383; aff'd 16 NY2d 619, cert den 382 US 905; Appeal of Alves, 44 Ed Dept Rep ___, Decision No. 15,190; Appeal of B.S., 44 id. ___, Decision No. 15,188). Therefore, a board's decision regarding school assignments will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Giovanniello, 44 Ed Dept Rep 17, Decision No. 15,081). Moreover, petitioner bears the burden of demonstrating that respondent's action was arbitrary, capricious or contrary to sound educational policy (Appeal of Alves, 44 Ed Dept Rep ___, Decision No. 15,190; Appeal of B.S., 44 id. ___, Decision No. 15,188; Appeal of Giovanniello, 44 id. 17, Decision No. 15,081).

Petitioner does not dispute that she and Justin live in the P.S. 135 attendance zone. Nor does petitioner dispute that the parental choice regulation prioritizes intra-district transfers over inter-district transfers. Moreover, petitioner submits no evidence, other than the unsubstantiated allegations in the petition, that P.S. 18 has space available in its kindergarten classes.

Additionally, respondent's failure to provide a reason in its transfer denial letters is a procedural defect that does not amount to a showing that its determination was arbitrary, capricious or contrary to sound educational policy.

THE APPEAL IS DISMISSED.

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