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Decision No. 16,693

Appeal of MIRANDA MOHABIR, on behalf of her daughter JANANI MOHABIT-CASIPIT, from action of the Board of Education of the Fayetteville-Manlius Central School District, regarding attendance zones.

Decision No. 16,693

(December 30, 2014)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Miles G. Lawlor, Esq. of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the Fayetteville-Manlius Central School District (“respondent”) that her daughter, Janani, may not attend school outside of the attendance zone in which she resides.  The appeal must be dismissed.

Respondent’s district has three elementary schools: Mott Road Elementary School ("Mott Road"), Enders Road Elementary School ("Enders Road"), and Fayetteville Elementary School.  Respondent has established attendance zones for all three schools.  Petitioner owns a home which is zoned for the Mott Road attendance zone (“Mott Road home”). Petitioner also owns a home which is within the Enders Road attendance zone (“Enders Road home”).  Petitioner admits that she, her husband and Janani reside at the Mott Road home and states that Janani “spends significant time” at the Enders Road home.  The record indicates that Janani was enrolled in second grade at Enders Road in the 2013-2014 school year. During the course of the 2013-2014 school year, respondent determined that Janani did not reside within the Enders Road attendance zone.  However, by letter dated October 23, 2013, petitioner was notified that her daughter would be allowed to finish the school year at that school.

According to respondent, by letter dated April 14, 2014, the district denied petitioner’s request that Janani be allowed to continue attending Enders Road. Respondent explains that, by letter dated April 28, 2014, it denied petitioner’s appeal and informed petitioner that her daughter would need to attend Mott Road for the 2014-2015 school year.  This appeal ensued and petitioner’s request for interim relief was denied on August 22, 2014.

Petitioner argues that Janani should be permitted to continue attending school at Enders Road because moving her would result in emotional disturbance and is not her best interest. Additionally, petitioner argues that, although it is not their primary residence, her daughter spends a significant amount of time at the Enders Road home and therefore should be permitted to attend Enders Road.

Respondent also argues that the appeal should be dismissed as untimely.  Respondent also contends that Janani’s assignment to Mott Road is not arbitrary or capricious.

To the extent respondent seeks to introduce exhibits as part of its memorandum of law, I note that 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 Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Accordingly I have not considered those exhibits that are not part of the pleadings.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  As noted above, the record indicates that petitioner was notified by letter dated April 28, 2014 that respondent agreed with the superintendent’s determination and, thus, her daughter would not be permitted to attend Enders Road.  Affording the usual five days for mailing, since it is unclear from the record when petitioner received the determination, petitioner had until June 2, 2014 to commence this appeal.  Petitioner’s affidavit of personal service states that the petition was not served until August 18, 2014.  Petitioner offers no excuse for her delay; accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Pursuant to Education Law §§1804(1), 1709(3) and (33), a board of education of a central school district 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. of Union Free School Dist. No. 1, Town of Mamaroneck, 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; aff'd 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, 27 NY2d 333; Appeal of Parrish, 32 Ed Dept Rep 261, Decision No. 12,825). Moreover, petitioner bears the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (Appeal of Johnson, 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; Appeal of Malang, 26 id. 134, Decision No. 11,703).

On this record, petitioner has failed to meet that burden.  Petitioner admits that she and Janani reside in the Mott Road attendance zone and alleges only that Janani spends “significant time” at the Enders Road residence, where petitioner cares for her before and after school, and that attending Enders Road is in her best interest.  The fact that Janani may have some difficulty adjusting to a new school, while regrettable, is not a basis for overturning respondent's decision (Appeal of Sponcy, 33 Ed Dept Rep 126, Decision No. 12,998; Appeal of Cullen, 32 id. 179, Decision No. 12,798).  Accordingly, the record does not support a finding that respondent’s decision was arbitrary, capricious or contrary to sound educational policy.