Appeal of THANE and TAMMY WRIGHT, on behalf of their daughter ALYSSA, from action of Board of Education of the Attica Central School District regarding attendance zones.

Decision No. 15,668

(October 9, 2007)

Harris Beach PLLC, attorneys for respondent, Laura M.Purcell, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Attica Central School District ("respondent") denying their request for their daughter, Alyssa, to attend an elementary school outside of her attendance zone.  The appeal must be dismissed.

Prior to the 2005-2006 school year, respondent’s attendance zone policy allowed students to attend an elementary school outside their attendance zone if the family agreed to provide transportation and sufficient space existed at the requested school.  On August 11, 2005, respondent discontinued this policy, except for students already enrolled in schools outside of their attendance zone and their siblings. 

Petitioners’ home is in respondent’s Prospect Elementary School (“Prospect”) attendance zone.  In March 2007, petitioners attempted to enroll Alyssa in kindergarten at respondent’s Sheldon Elementary School (“Sheldon”) for the 2007-2008 school year.  A committee established to review such requests recommended that petitioners’ request be denied pursuant to the district’s new attendance zone policy.  Respondent’s district clerk informed petitioners by letter dated April 30, 2007, that respondent adopted the committee’s recommendation.  By letter dated May 10, 2007, petitioners requested reconsideration of their request.  Respondent’s superintendent notified petitioners in writing on May 31, 2007 that the board’s decision was consistent with the district’s policy and that respondent would not reconsider its decision.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 8, 2007.

Petitioners contend that respondent should permit Alyssa to attend Sheldon because attending Prospect would be physically and emotionally detrimental to her. Petitioners maintain that they were unaware that respondent changed the attendance zone boundaries in 2005, that Sheldon is underutilized as a result of respondent’s policy and that respondent’s denial is not in the best interests of Alyssa’s education.  Petitioners further contend that respondent has improperly allowed a neighbor’s children to attend school outside their attendance zone.

Respondent maintains that decisions concerning pupil placement within the school district are within the discretion of the board pursuant to Education Law §1709(33) and that petitioners’ attendance zone did not change as a result of the 2005 policy.  Respondent contends that its attendance zone policy is fair and reasonable and that its decision regarding petitioners’ daughter is consistent with its policy.  Respondent further maintains that the appeal should be dismissed as untimely and that petitioners have failed to prove that respondent’s action was arbitrary or capricious.  Respondent also contends that petitioners are mistaken about the neighbor’s children and unlike petitioners’ daughter, they actually reside in the Sheldon attendance zone.  Respondent further argues that petitioners’ multiple replies and their memorandum of law fail to comply with the Commissioner’s regulations.

Initially, I must address several procedural issues.  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).  At respondent’s meeting on April 26, 2007, which petitioners attended, a majority voted to deny petitioners’ request to allow Alyssa to attend Sheldon.  The district notified petitioners of the denial of their request by letter dated April 30, 2007.  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  Petitioners state that they received the determination on May 3, 2007, and this appeal was commenced on May 31, 2007.  Consequently, I will not dismiss the appeal as untimely.

Respondent objects to petitioners’ “reply” of June 19, 2007 (“first reply”), submitted in response to respondent’s papers in opposition to the requested stay.  In addition to responding to respondent’s papers, petitioners provide additional factual information regarding boundary zones and raise new allegations regarding safety concerns.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Petitioners’ first reply was not submitted in accordance with §§275.3 or 275.14 of the Commissioner’s regulations. Therefore, I have not considered it.   

Respondent also objects to petitioners’ July 31, 2007 reply (“second reply”), submitted in response to respondent’s answer.  While I have reviewed the second reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent further objects to petitioners’ memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337).  Therefore, while I have reviewed petitioner’s memorandum of law, I have not considered those portions containing new allegations, claims or exhibits that are not arguments of law.

By letter dated September 14, 2007, petitioners requested permission to submit an additional affidavit for my consideration.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).  In the affidavit, Mrs. Wright alleges that a foster child and another child, who reside in the Sheldon attendance zone are attending Prospect.  Petitioners assert that this demonstrates that respondent is enforcing the district’s 2005 attendance zone policy in an arbitrary and capricious manner.  Petitioners request permission to belatedly submit this information and claim that they only learned of this situation on August 21, 2007.  I will accept the affidavit because it is relevant to the claims originally raised in the petition and the information was not known to petitioners until after they submitted their pleadings.

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. Board of Educ., 27 NY2d 333; Appeal of P.S., 39 Ed Dept Rep 806, Decision No. 14,387; Appeal of Ibrahim, 39 id. 155, Decision No. 14,200).  In the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo v. Donovan, 22 AD2d 383; affd 16 NY2d 619, cert den 382 US 905; Appeal of the Lancaster Parent Alliance, 38 Ed Dept Rep 356, Decision No. 14,053).  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. Board of Educ., 27 NY2d 333).  Moreover, petitioners bear the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (Appeals of Johnson, et al., 37 Ed Dept Rep 465, Decision No. 13,906; Appeal of Sherwood, et al., 33 id. 410, Decision No. 13,096; Appeal of McNerney, et al., 28 id. 250, Decision No. 12,097).  Based on the record before me, I find that petitioners have not met their burden of showing that respondent acted in a manner that was arbitrary, capricious or contrary to sound educational policy.

Respondent’s revised 2005 attendance zone policy generally requires students to attend the school located within the attendance zone in which they reside with a limited exception not applicable here.  Petitioners’ daughter currently resides in the Prospect attendance zone.  Thus, under respondent’s policy, petitioners have no basis to have their daughter attend Sheldon.  Although petitioners allege that respondent has not uniformly applied its policy, they have failed to demonstrate that the other children allegedly admitted to a school outside their attendance zone are in the exact same circumstances as their daughter.  While I am sympathetic to petitioners’ broader concerns, there is no legal basis to grant the relief petitioners seek (seeAppeal of Kershaw, 37 Ed Dept Rep 186, Decision No. 13,837; Appeal of Barbara D. and James D. Jr., 34 id. 118, Decision No. 13,252).

In light of this disposition, I need not address petitioners’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE