Appeal of FRED and CHRISTIE MCAVEY, on behalf of their son DONOVAN, from action of the Board of Education of the City School District of the City of Glens Falls regarding elementary school reassignment.

Decision No. 16,978

(October 18, 2016)

The Moreschi Law Firm, attorneys for petitioners, Nikki J. Moreschi, Esq., of counsel

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Glens Falls (“respondent board”) not to reassign their son to Kensington Road Elementary School (“Kensington Road”).  The appeal must be dismissed.

The record indicates that, during the fall of the 2015-2016 school year, petitioners changed their residence within the district.  After moving to the second residence, petitioners requested that their son, Donovan, be moved from second grade at Jackson Heights Elementary School (“Jackson Heights”) to second grade at Kensington Road, effective November 30, 2015.  The record indicates that the superintendent denied petitioners’ request to enroll Donovan in Kensington Road, asserting that the district does not have board-adopted attendance zones, that the assignment of students to particular schools is based upon class size, and that such decisions are within the discretion of the superintendent.  The superintendent also explained that the two second-grade classes at Kensington Road were at capacity, with 25 and 26 students each, while Donovan’s current class at Jackson Heights was under-enrolled, with only 18 students.  Therefore, the superintendent determined that Donovan could not be enrolled at Kensington Road and placed him on a waiting list.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 29, 2015.

Petitioners argue that requiring Donovan to attend a school outside his geographic boundary without transportation violates district policy, State and federal law, and/or public policy.  Petitioners request that Donovan be enrolled in Kensington Road immediately or, in the alternative, that he be provided transportation to Jackson Heights.

Respondent contends that the district does not have board-approved attendance zones or policies regarding the placement of students in elementary schools based on geographic boundaries and, further, the superintendent’s decision was neither arbitrary nor capricious.  Respondent further asserts that, pursuant to Education Law §3635(c), it is not required to provide transportation to students absent an Individualized Education Program (“IEP”) requiring such transportation.  As Donovan does not have an IEP, respondent contends that he is not entitled to transportation.  In addition, respondent raises several affirmative defenses, including failure to exhaust administrative remedies and failure to state a claim for relief.

I must first address several procedural matters.  By letter dated January 18, 2016, petitioners requested permission to submit the following additional information: the Reply Affidavit of petitioner Christie McAvey and the Reply Affirmation of petitioners’ attorney, with an attached exhibit.  Petitioners claim that respondent’s filings in opposition to the stay request contained arguments beyond the scope of the stay request and seek an opportunity to respond to those arguments.  I note that there is no authority in the Commissioner’s regulations for a “reply” to papers opposing a stay request (8 NYCRR §275.3; Appeal of DeLouise, 49 Ed Dept Rep 384, Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  To the extent the submission is made in support of petitioners’ application for a stay, the matter is moot because the documents were received by both my Office of Counsel and respondent’s attorney after petitioners’ stay request was denied (Appeal of Bishop, 55 Ed Dept Rep, Decision No. 16,892).  Therefore, I have not considered petitioners’ submission as part of the record in this appeal.

 By letter dated February 8, 2016, petitioners submitted a reply affirmation of counsel in response to respondent’s answering papers and again requested consideration of the materials previously submitted on January 18, 2016.   Petitioners also submitted a newspaper article as an exhibit to the reply affirmation.  It is well-settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324). Therefore, I have not considered such article for the veracity of its content.  Additionally §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified by the oath of at least one of the petitioners.  Petitioners’ reply was not verified in violation of §275.5.  Therefore, I have not considered petitioners’ reply (Appeal of a Student with a Disability, 46 Ed Dept Rep 102, Decision No 15,454; Appeal of Nocerino, 40 id. 244, Decision No. 14, 472; Appeal of Principio, 39 id. 11, Decision No. 14,157).

Respondent argues that the appeal must be dismissed because petitioners failed to exhaust their administrative remedies before commencing the instant appeal.  However, respondent does not provide any policy, rule or regulation that requires an appeal to respondent.  Additionally, respondent concedes that the superintendent’s denial of admission to Kensington Road was verbal and the record does not indicate that there were any written notices or letters sent to confirm the superintendent’s denial.  As such, even if respondent has a policy, rule or regulation that requires an appeal to respondent, there is no evidence that petitioners were notified of such a requirement or process.  Therefore, I will not dismiss the appeal for failure to exhaust administrative remedies (see Appeal of Barbara D. and James D., Jr., 34 Ed Dept Rep 118, Decision No. 13,252).

Nevertheless, the appeal must be dismissed on the merits.  Pursuant to Education Law §§1709(3) and (33), and 2503(1) and (3), respondent 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 (see Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Johnson, et. al., 37 id. 465, Decision No. 13,906).  In fact, Education Law §2503(4)(d) expressly authorizes city school districts like respondent to “determine the school where each pupil shall attend.”  In such cases, a board’s discretion is broad (see Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Johnson, et. al., 37 id. 465, Decision No. 13,906). Therefore, 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 Polanco, 45 Ed Dept Rep 28, Decision No. 15,249; Appeal of Sponcy, 33 id. 126, Decision No. 12,998).  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).

Upon review, I find respondent's policy regarding placement of students in the elementary schools to be fair and reasonable.  Under respondent's policy, students are placed in their home school unless class sizes have reached an upper limit, in which case the superintendent assigns students registering after the school year begins to the building and classroom containing the fewest students.  I find the policy is rationally related to the orderly placement of students without risking overcrowding and maximizes utilization of educational facilities (see Appeal of Goldup, 30 Ed Dept Rep 477, Decision No. 12,540). Moreover, petitioners have failed to show that respondent applied this policy in an arbitrary or capricious manner under the facts of this case.  Petitioners have not demonstrated any reason why Donovan cannot continue in Jackson Heights other than the inconvenience of the school’s physical location which, while regrettable, is not a basis for overturning respondent’s decision.

With regard to petitioners’ request for transportation to Jackson Heights, that portion of the appeal must also be dismissed.  The Commissioner of Education will uphold a district’s transportation determination unless it is arbitrary, capricious, unreasonable or an abuse of discretion (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of A.P., 48 id. 380, Decision No. 15,891).  A city school district may, but is not required to, provide transportation to students (Education Law §3635[1][c]).  Where such district elects to provide transportation, it must do so equally to all students in like circumstances (Education Law §3635[1][c]; Sands Point Academy, et al. v. Bd. of Educ., 63 Misc 2d 276; Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891).  The Commissioner of Education has held that students in different grades are not in “like circumstances” and that city school districts may establish transportation policies that make distinctions by grade level (Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Cassin, et al., 32 id. 373, Decision No. 12,859).  Here, respondent has a policy of not providing transportation to students within its boundaries unless specifically required by an IEP.  Respondent states, and petitioners do not dispute, that Donovan does not have an IEP, let alone an IEP that requires transportation.  Therefore, to the extent petitioners seek transportation for Donovan, this portion of the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

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