Appeal of KATHLEEN M. KNOER, on behalf of her son EVAN, from action of the Board of Education of the Williamsville Central School District regarding open enrollment.

Decision No. 15,640

(August 16, 2007)

Norton/Radin/Hoover/Freedman, attorneys for respondent, Bernard B. Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the denial of her request for her son, Evan, to attend Williamsville North High School (“Williamsville North”) rather than Williamsville South High School (“Williamsville South”).  The appeal must be dismissed.

For several years, the Board of Education of the Williamsville Central School District (“respondent”) permitted students residing in one attendance area to seek enrollment at a school located outside of their designated attendance area (“open enrollment”).  In 2003, with certain exceptions, respondent decided to close open enrollment for Williamsville North, effective September 2004.  Respondent also determined that beginning in September 2004, Williamsville South would be the high school serving students residing in petitioner’s attendance area.

In December of 2006, petitioner attended a board meeting and asked respondent to adopt a resolution that would make a sibling exception to their decision to close open enrollment at Williamsville North so that Evan could attend that high school with his older brother.  By letter dated December 22, 2006, respondent denied petitioner’s  request.  On January 27, 2007, petitioner submitted an open enrollment form requesting that respondent allow Evan to attend Williamsville North.  By letter dated March 6, 2007, respondent denied her request.  This appeal ensued.

Petitioner contends that the denial of her request was arbitrary and capricious.  Petitioner seeks an order  directing respondent to rescind its decision denying open enrollment to her son.

Respondent argues that the appeal is untimely.  Respondent further maintains that its decision was proper in all respects.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Petitioner was notified of respondent’s decision denying her son open enrollment at Williamsville North by letter dated December 22, 2006.  Petitioner did not commence this appeal until April 5, 2007.  Petitioner’s subsequent submission of an open enrollment form in January of 2007 did not extend the 30-day time period since it effectively amounted to a request for reconsideration (see Appeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No. 15,454; Appeal of Rheaume-Wellenc, 37 id. 83; Decision No. 13,811; Appeal of Ragot, 35 id. 299; Decision No. 13,548).

The appeal must also be dismissed on the merits.  Pursuant to Education Law §1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Bd. of Educ. Of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of M.P.M., 46 Ed Dept Rep ___, Decision No. 15,567; Appeal of Frost, 46 id. ___, Decision No. 15,528).  In the assignment of students to schools, a board of education has broad discretion (Matter of Addabbo, et al. v. Donovan, et al., 22 AD2d 383; affd 16 NY2d 619, cert. denied 382 US 905; Appeal of P.C., 45 Ed Dept Rep 476, Decision No. 15,386; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  Accordingly, 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 P.C., 45 Ed Dept Rep 476, Decision No. 15,386; Appeal of Araneo, 45 id. 325, Decision No. 15,336).

Moreover, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Based on the record before me, I find that petitioner has not met her burden of showing that respondent acted in a manner that was arbitrary, capricious or contrary to sound educational policy.

Petitioner claims that respondent’s action was arbitrary and capricious because respondent failed to specifically vote to close Williamsville North to open enrollment for the 2007-2008 school year, which, he asserts is required by respondent’s own policies.  I disagree.  Respondent’s policy requires that it annually review student attendance areas, which includes enrollment projections. There is no specific requirement that respondent annually vote each year on each school with respect to open enrollment.  Respondent voted to close open enrollment to Williamsville North beginning in September 2004, with no end date, based on 2004-2009 enrollment projections.  At its November 14, 2006 meeting, respondent received enrollment projections for the 2007-2008 through the 2011-2012 school years.  Enrollment projections for Williamsville North confirmed that enrollment would continue to increase through the 2007-2008 school year, but would then decrease by 232 students over the next four years.  Respondent’s consultant recommended that respondent monitor the school for a year and then reconsider its open enrollment status for the 2008-2009 school year.  According to respondent’s consultant, the delay would allow respondent to confirm the projected enrollment trend.  Accordingly, I cannot conclude that respondent’s decision was arbitrary, capricious, or contrary to sound educational policy.

THE APPEAL IS DISMISSED.

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