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 and/or nonresident tuition reimbursement.

Decision No. 16,793

(July 20, 2015)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the refusal of the Akron Central School District (“respondent”) to send their son, S.Z., to school in the Lockport City School District (“Lockport”) or in the alternative, to pay tuition for S.Z. to attend Lockport. 

Petitioners and S.Z. are residents of respondent’s district; however, S.Z. has been attending Lockport since March 10, 2014 as a non-resident tuition-paying student.

By email dated February 21, 2014, petitioners requested that respondent come to an agreement with Lockport so that S.Z. could be educated in a “racially integrated district”.  Specifically, they requested that S.Z. be permitted to attend Lockport by way of a “friendship agreement”, under an employee benefit umbrella, an urban-suburban transfer program or, in the alternative, that respondent agree to pay tuition to Lockport for the remainder of S.Z.’s education.

By letter dated March 5, 2014, respondent’s superintendent of schools advised petitioners that he intended to recommend to respondent at its March 26, 2014 meeting that petitioners’ request be denied.  He invited petitioners to submit a further written submission for respondent’s consideration by March 20, 2014.  The appeal ensued.  Petitioners’ request for interim relief was denied on March 28, 2014. 

Although many aspects of their pleadings are unclear, petitioners appear to argue that their son is entitled to attend Lockport’s schools tuition-free because his school district of residence, due to “antiquated school district lines,” is “demographically dissimilar to where he lives, is pervasively racially intolerant and has created depression and apathy....”  Petitioners make several allegations to support this claim including that while S.Z. attended respondent’s schools, he was the victim of bullying and harassment.  Petitioners also maintain that respondent has failed to respond effectively to racial harassment, has been negligent in tolerance training, has not included African American history in its curriculum and did not celebrate Black History month.  

Petitioners argue that the Dignity for All Students Act (“DASA”) and U.S. Supreme Court rulings under Title VI of the Civil Rights Act of 1964 support their appeal and allege several civil rights violations.  Petitioners raise issues related to their 2010 appeal to the Commissioner,[1] specifically about the merits of the case and the attorneys who represented the school districts and an investigation completed by the “Civil Rights Commission.”  Attached to the petition is a decision of the Office for Civil Rights of the United States Department of Education dated December 3, 2013 dismissing petitioner’s complaint in which they alleged discrimination based on many of the same incidents raised in this appeal. Petitioners also make allegations related to their daughter who graduated in 2013 and, therefore, is no longer a student at respondent’s schools.

Petitioners ask for a determination that although S.Z. is a resident of respondent’s district, he is entitled to “financial assistance” because of the allegations described above.  Petitioners argue that the State Administrative Procedure Act §204-a (“SAPA §204-a”) allows the Commissioner to waive certain regulations if appropriate, and ask that he order respondent to pay non-resident tuition so that S.Z. can attend Lockport schools. 

Respondent generally denies petitioners’ allegations and affirmatively asserts that none of its agents, officers or employees discriminated against S.Z. because of his race, color or ethnicity.  Respondent argues that the appeal must be dismissed for failure to join a necessary party, timeliness, mootness, collateral estoppel and res judicata, lack of jurisdiction and failure to state a claim upon which relief can be granted.

First, I must address the 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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, pursuant to §276.4 of the Commissioner’s regulations, petitioners were required to serve their memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever is later. Respondent served its answer on April 23, 2014 and petitioners reply was served on May 20, 2014.  Petitioners’ memorandum of law was served on June 14, 2014, 10 days late. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]), there has been no such showing here. Therefore, I have not considered petitioners’ memorandum of law.

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 statute or regulation (Appeal of W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102; Appeal of C.S., 49 id. 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  Specifically, the Commissioner has ruled that an appeal pursuant to Education Law §310 is not the proper forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep. 118, Decision No. 15,810).  Therefore, to the extent that petitioners seek relief based on constitutional violations, their claims are dismissed. 

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).  Throughout their pleadings, petitioners complain of several incidents that predate the March 5, 2014 letter from the superintendent of schools.  Petitioners raise several allegations relating to S.Z.’s experiences in respondent’s schools as well as those of their two other children who have since graduated.  These claims are based on incidents that are alleged to have occurred more than 30 days before the commencement of this appeal.  For example, petitioners raise claims about alleged incidents of harassment, bulling and discrimination involving S.Z. that occurred in respondent’s schools and in the community that date back to 2010, and all of which occurred months or years before this appeal was commenced.  Therefore, to the extent that petitioners object to and/or seek relief for actions or omissions by respondent relating to alleged incidents of harassment, bullying and discrimination that occurred more than 30 days prior to the commencement of this appeal, their claims are dismissed as untimely.

Petitioners’ remaining contentions must 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners fail to cite a valid legal basis for the relief they seek.  Petitioners do not identify what “regulation” they seek to have the Commissioner waive pursuant to SAPA §204-a.  In fact, they appear to be seeking a waiver of the statutory provisions of Education Law §3202(1) that establish that children who are over five and under twenty-one years of age have the right to attend the public schools of the school district in which they reside without the payment of tuition.  SAPA §204-a, on its face, only applies to certain requests for waivers of agency rules and not to a request for a statutory waiver.  In any case, the plain language of SAPA §204-a does not support their contention that the Commissioner can waive certain regulations if he or she deems appropriate (see Appeal of W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102).  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.”  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 W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102; Appeal of Ortiz, 34 id. 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 public school district.  The fact that petitioners are dissatisfied with the program offered by respondent does not compel respondent to pay tuition (Appeal of W.Z. and A.Z., 50 Ed Dept Rep, Decision No. 16,102; Appeal of Ortiz, 34 id., 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 seriousness of the incidents of harassment, bullying and discrimination alleged in this case, based on the record before me, I find no basis on which to grant the relief petitioners seek.  Respondent asserts that it investigated and took appropriate action in response to those complaints of harassment, bullying and discrimination that were reported to it.  While I have no basis in the present record to question respondents’ actions relating to those complaints, should similar incidents recur, I encourage respondent to review its DASA policies and procedures and consult with my Office of Student Support Services about appropriate strategies to prevent harassment, bullying and discrimination.

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

THE APPEAL IS DISMISSED.

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