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Decision No. 16,102

Appeal of W.Z. and A.Z., on behalf of their son S.Z., from action of the Board of Education of the Akron Central School District regarding an interdistrict transfer.

Decision No. 16,102

(July 27, 2010)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff and John M. Godwin, Esqs., of counsel

STEINER, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Akron Central School District (“respondent”) to participate in a voluntary interdistrict urban-suburban transfer program or to provide tuition for their son, S.Z., to attend school in the City School District of the City of Lockport (“Lockport”).  The appeal must be dismissed.

Petitioners are residents of respondent’s district and the adoptive parents of S.Z., who is of African-American, Hispanic and Mayan descent and attends Lockport as a non-resident, tuition-paying student.[1] Petitioners are also the biological parents of two students, who are Caucasian and attend respondent’s high school.

The record indicates that during the 2008-2009 school year, S.Z. attended fifth grade in respondent’s district.  On or about April 29, 2009, petitioners sought to transfer S.Z. from respondent’s schools to Lockport’s schools due to racial issues.  Thereafter, petitioners made requests to respondent, Lockport and the State Education Department (“Department”) that respondent and Lockport participate in a voluntary interdistrict urban-suburban transfer program so that S.Z. could attend school in Lockport without the payment of tuition.

By letter dated September 18, 2009, respondent’s president denied petitioners’ request, noting that, while respondent “would be authorized to pay for [S.Z.’s] education in Lockport under an Urban-Suburban Inter-District Transfer Program,” such program did not exist in respondent’s district.  This appeal ensued.  Petitioners’ request for interim relief was denied on November 5, 2009.

Although many aspects of their pleadings are unclear, petitioners appear to argue that S.Z. is entitled to attend Lockport’s schools tuition-free because his school district of residence has failed to “provide a racially tolerant atmosphere.”  Petitioners make several allegations to support this claim, including that, while he attended respondent’s schools, S.Z. was the victim of bullying and harassment by respondent’s staff, students and parents based on his race.  Petitioners also maintain that respondent (1) failed to adequately address petitioners’ concerns about S.Z.’s treatment and to “research” and “follow through” on several of petitioners’ suggestions, including “the No Child Left Behind parent choice option;” (2) allowed a vehicle with a confederate flag bumper sticker to park on its football field for “several years;” (3) failed to properly educate and/or train students and staff on issues of racial tolerance; and (4) was improperly directed by its attorneys to deny petitioners’ request to transfer S.Z. to Lockport without a vote by the board.

Petitioners seek a determination that S.Z. is a resident of both respondent’s district and Lockport who is entitled to attend Lockport’s schools tuition-free.  In the alternative, petitioners urge that “aid be transferred [to Lockport] as it is for other students who participate in an Urban Suburban Program” or that respondent be ordered to pay for S.Z. to attend “a school in which his race is not the primary factor in his school relationships.”

Respondent generally denies petitioners’ allegations and affirmatively asserts that none of its agents, officers or employees discriminated against S.Z. on the basis of his race.  Respondent argues that the appeal must be dismissed on several grounds, including timeliness, lack of jurisdiction, failure to state a claim upon which relief can be granted and failure to join a necessary party.

I must first address several procedural issues.  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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the 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.

In addition, 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 Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  Therefore, while I have reviewed petitioners’ memorandum of law, I have not considered those portions containing new allegations, claims or exhibits that are not arguments of law or part of the pleadings.

Petitioners have also submitted a “conclusion” to address alleged “false assertions” in respondent’s memorandum of law.  Respondent requests that I disregard this document as it was submitted without my prior approval, in violation of §276.5 of the Commissioner’s regulations.  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 Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  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 Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  However, petitioners’ “conclusion” does not appear to raise new issues or introduce new exhibits to the claims originally raised in the appeal.  Rather, much of petitioners’ “conclusion” appears to restate the allegations described in the petition.  Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, I have accepted the “conclusion” for consideration (seeAppeal of a Student with a Disability, 48 Ed Dept Rep 94, Decision No. 15,802, judgment granted dismissing petition, Sup. Ct., Albany Co., [McNamara, J.], December 31, 2008; n.o.r.).

To the extent that petitioners intend to allege discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a regulation (Appeal of Seton Catholic Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481; Appeal of Johnson, 45 id. 446, Decision No. 15,377; Appeal of J.F. and D.F., 45 id. 241, Decision No. 15,310).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of Seton Catholic  Central High School, et al., 46 Ed Dept Rep 190, Decision No. 15,481).

Similarly, I have no jurisdiction to adjudicate any alleged violations of the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of L.A., et al., 46 Ed Dept Rep 450, Decision No. 15,561; Appeal of Hubbard, 45 id. 466, Decision No. 15,383; Appeal of Hubbard, 45 id. 451, Decision No. 15,379). 

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 Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  While petitioners assert that this appeal is “based on” respondent’s September 18, 2009 letter, throughout their pleadings, petitioners complain of several incidents that appear to predate such letter.  For example, petitioners raise several allegations relating to S.Z.’s experiences as a student in respondent’s schools.  However, the record indicates that S.Z. has not attended school in respondent’s district since the 2008-2009 school year – which ended more than 30 days before the commencement of this appeal.  Therefore, to the extent that petitioners object to and/or seek relief for conduct by respondent that occurred more than 30 days prior to the commencement of this appeal, their claims are dismissed as untimely.

The appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Among the relief sought in this appeal, petitioners request a determination that S.Z. is entitled to attend Lockport’s schools tuition-free as either a resident of that district or a participant in an urban-suburban interdistrict transfer program through which “aid [would] be transferred” from respondent to Lockport.  In their reply, petitioners appear to argue that, because they are appealing respondent’s September 18, 2009 decision, Lockport is not a necessary party to this appeal.  I disagree.  If granted, the relief requested in the petition would necessarily affect Lockport.  Therefore, petitioners were required to join Lockport as a party to this appeal.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioners fail to cite a valid legal basis for the relief they seek.  Both Education Law §3602(15) and §175.24 of the Commissioner’s regulations specify that a school district’s participation in an interdistrict urban-suburban transfer program is “voluntary.”  The record in this case indicates that respondent has not elected to participate in such voluntary program and I cannot direct respondent to do so.  Moreover, contrary to petitioners’ assertions, I cannot, on the record before me, conclude that respondent’s decision not to participate in a voluntary program is arbitrary and capricious.

Petitioners also cite the State Administrative Procedure Act §204-a (“SAPA §204-a”) to support their contention that the Commissioner can “waive a certain regulation if he or she deems appropriate.”  However, the plain language of SAPA §204-a does not support petitioners’ position.  Rather, that section permits a local government, including a school district, to petition the appropriate State agency or agencies to approve “an alternate method for implementing a regulatory mandate,” which is defined as “any rule which requires one or more local governments to create a new program, increase the level of service for an existing program or otherwise comply with mandatory requirements.”  As noted above, §175.24 of the Commissioner’s regulations is not a mandate, but is rather a voluntary program in which school districts may, in their discretion, elect to participate.  Therefore, contrary to petitioners’ assertions, SAPA §204-a does not apply to the facts of this appeal.

Finally, petitioners’ contention that respondent must pay tuition for S.Z. to attend a public school outside of his district of residence is not supported by law.  A board of education need not pay tuition for a student to attend public school outside the school district when the board of education offers an instructional program for resident students (Appeal of Ortiz, 34 Ed Dept Rep 341, Decision No. 13,333; Matter of Keene, 19 id. 547, Decision No. 10,247).  In this case, respondent offers a program of public education and, therefore, is not obligated by statute to provide tuition to a public school operated by another school district.  The fact that petitioners are dissatisfied with the program offered by respondent does not compel respondent to pay tuition (Appeal of Ortiz, 34 Ed Dept Rep 341, Decision No. 13,333; Matter of Keene, 19 id. 547, Decision No. 10,247).  Based upon the foregoing, I find no legal basis to impose upon respondent the obligation to pay tuition for S.Z. to attend Lockport’s schools.

While nothing herein should be construed as minimizing the gravity of petitioners’ concerns, based on the record in this case, I find no basis on which to grant the relief petitioners seek.

In light of this disposition, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Petitioner A.Z. notes that she is employed by Lockport as a “special educator” and that Lockport does not permit the children of non-resident faculty to attend its schools on a tuition-free basis.