Appeal of S.G.K., on behalf of her daughters S.G.K. and N.G.K., from action of the Board of Education of the LaFayette Central School District regarding non-resident student admission.

Decision No. 17,043

(February 13, 2017)

Ferrara Fiorenza, PC, attorneys for respondent, Colleen W. Heinrich, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the LaFayette Central School District (“respondent”) denying her children, S.G.K. and N.G.K., permission to attend its schools as non-resident students. The appeal must be dismissed.

Petitioner and her children reside outside of respondent’s school district.  Pursuant to Education Law §3202(2), respondent has adopted a policy for the admission of non-resident tuition-paying students. Respondent’s policy provides, in pertinent part: “[a] non-resident student will be accepted only if it is in the best interest of the school [d]istrict.”  In addition, respondent’s policy also provides that “[t]uition shall be payable to the Treasurer of the LaFayette Central School District.  It may be paid in full on or before August 1^st preceding the beginning of the school year, or in an installment agreement established by Administrative Regulations.” 

Petitioner’s daughter, S.G.K., had been attending respondent’s school as a non-resident student since September 2013.  According to respondent, petitioner failed to make tuition payments for S.G.K. for both the 2014-2015 and 2015-2016 school years in accordance with the terms of an installment agreement.  Petitioner subsequently submitted a non-resident enrollment application on behalf of S.G.K. and N.G.K. for the 2016-2017 school year.  In two separate letters dated June 3, 2016, respondent’s superintendent advised petitioner that the students would not be permitted to enroll as non-resident students for the 2016-2017 school year because of petitioner’s history of delinquent tuition payments.

According to the record, petitioner and the superintendent engaged in subsequent telephone conversations regarding petitioner’s enrollment request.  By letter dated July 26, 2016, the superintendent again denied petitioner’s enrollment request.  In an email dated August 8, 2016, petitioner appealed to respondent.  By letter dated August 22, 2016, petitioner was notified that respondent upheld the determination denying admission of the students to its schools. This appeal ensued. Petitioner’s request for interim relief was denied on December 2, 2016.

Although it is not entirely clear, petitioner appears to contend that respondent has improperly excluded her children from attendance at its schools and requests a determination allowing the students to return to respondent’s district on a tuition basis.

Respondent contends that the appeal is untimely. Respondent further asserts that it properly denied petitioner's request based upon its non-resident policy and that its determination was not reasonable and consistent with board policy.

I will first address the timeliness issue.  Respondent contends that 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).

Although petitioner's request to have the students enrolled in respondent’s schools was denied by respondent’s superintendent in letters dated June 3, 2016 and July 26, 2016, the record indicates that the superintendent’s determination was subsequently appealed to respondent.  Respondent’s final decision to deny petitioner’s enrollment request for her two children was not rendered until on or about August 22, 2016, when the superintendent sent a letter notifying petitioner that the board of education upheld the determination to deny admission of the students to its schools.  It appears from the record that the petition was not properly served upon respondent until November 16, 2016, which is well in excess of 30 days from petitioner’s receipt of respondent’s determination, applying the usual five days for mailing.  Petitioner has not provided an excuse for the delay and the appeal must therefore be dismissed.

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 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).

A student has a legal right to attend school only in the district in which the student resides (Education Law §3202[1]).  Non-resident students may be permitted to attend the schools of a district in which they do not reside, but only upon the express consent of, and upon terms prescribed by, the district’s board of education (Education Law §3202[2]; Appeal of McAteer, 40 Ed Dept Rep 234, Decision No. 14,469; Appeal of Holzer, 37 id. 549, Decision No. 13,924).  Absent any right to attend respondent’s school district, the decision to permit the attendance of non-resident students is discretionary with the board of education (Appeal of W.S., 53 Ed Dept Rep, Decision 16,601; Appeal of L.V., 45 id. 561, Decision No. 15,416; Appeal of Sirlin, 41 id. 417, Decision No. 14,731; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

The record indicates that, in denying petitioner’s request to enroll the students as non-resident tuition-paying students, respondent has exercised its discretion pursuant to Education Law §3202(2) and its policy adopted thereunder, which makes acceptance of non-resident students conditional upon payment of tuition in full on or before August 1 or in accordance with an installment agreement.  It appears from the record that petitioner repeatedly failed to make timely payments for tuition for her daughter S.G.K. in past years in accordance with the installment payment agreement she signed.  Under such circumstances, the district’s determination that it is in its best interest to deny admission to non-resident students whose parents have been historically delinquent in making tuition payments because the district has to utilize taxpayer money and resources in an effort to recover the required tuition payments is reasonable.

The petition in this appeal does not explain the legal basis upon which petitioner challenges respondent’s determination, nor has she proven facts demonstrating that respondent abused its discretion in making its determination.  Because petitioner has failed to establish the facts or legal basis on which to conclude that respondent’s determination is arbitrary, capricious or otherwise unreasonable, I find no basis to overturn respondent’s determination (see Appeal of W.S., 53 Ed Dept Rep, Decision 16,601; Appeal of L.V., 45 id. 561, Decision No. 15,416; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

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

THE APPEAL IS DISMISSED.

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