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Decision No. 17,405

Appeal of C.T., on behalf of her daughter A.J.B., from action of the Board of Education of the Valley Stream Central High School District regarding attendance zones.

Decision No. 17,405

(June 6, 2018)

Guercio & Guercio, L.L.P., attorneys for respondent, John P. Sheahan, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals a determination of the Board of Education of the Valley Stream Central High School District (“respondent”) denying her request that her daughter, A.J.B., be allowed to attend Valley Stream North High School.  The appeal must be dismissed.

On February 28, 2017, petitioner submitted a request to respondent for a waiver of respondent’s attendance zones so that her daughter, A.J.B., would be allowed to transfer (“transfer request”) from the seventh grade at Memorial Junior High School to the seventh grade at Valley Stream North High School (the “high school”).

By letter dated March 1, 2017, the superintendent denied petitioner’s transfer request because it was untimely in accordance with respondent’s Policy 5110, which requires that a request to transfer to a school located out of a student’s attendance zone must be submitted to the superintendent in writing no later than February 15th of the school year in which the student is attending sixth grade.  Transfer requests are subject to space availability.

On March 17, 2017, petitioner’s therapist appealed to respondent regarding the denial of petitioner’s transfer request.  On March 20, 2017, respondent stated that Policy 5110 authorizes the superintendent to make decisions with respect to transfer requests, and that his/her decision is not reviewable.

The record indicates that, after March 1, 2017, numerous letters were submitted to the superintendent by petitioner and by other individuals writing on her behalf asking that A.J.B. be allowed to attend the high school for the 2017-2018 school year.  The superintendent issued responses to each letter stating that the transfer request could not be granted because petitioner submitted her transfer request after the February 15, 2017 deadline.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 10, 2017.

Petitioner admits in her petition, which was served upon respondent on June 23, 2017, that her transfer request was untimely but claims that her transfer request should be granted because (1) A.J.B. has been suffering anxiety due to the fact that her father has separated from the family; and (2) one of A.J.B.’s siblings attends the high school and A.J.B. would suffer hardship and trauma if she could not go to the same school as her sibling.  As relief, petitioner asks that A.J.B. be placed in seventh grade at the high school.

Respondent asserts in its verified answer, among other things, that petitioner’s appeal should be dismissed because the petition is not properly verified, the appeal is time barred, petitioner failed to establish a claim for which relief may be granted, and that respondent’s decision was not arbitrary or capricious because petitioner failed to submit her transfer request timely, i.e. by February 15, 2017.  Respondent also asserts in its answer that the February 15th deadline is necessary so that respondent can ensure that there is sufficient space and resources for the incoming students.

I must first address the procedural issues. Petitioner submitted two documents, a letter dated July 13, 2017 addressed to my Office of Counsel that appears to be a reply to the affirmation of respondent’s attorney submitted in opposition to the stay request and a memorandum of law, which also responds to respondent’s opposition to the stay request.  On July 25, 2017, respondent’s attorney submitted a letter asking that I give no consideration to the purported reply.  No affidavit of service upon respondent was submitted with the purported reply.   

There is no authority in the Commissioner’s regulations for a “reply” to papers opposing a stay request (8 NYCRR §275.3; Appeal of McAvey, 56 Ed Dept Rep, Decision No. 16,978; Appeal of Delouise, 55 id., Decision No. 16,058; Appeal of Hansen, 48 id. 354, Decision No. 15,884).  To the extent petitioner is seeking to submit the purported reply as an additional pleading, section 275.3(b) authorizes such an additional pleading only upon application to my Office of Counsel and upon good cause shown.  To the extent petitioner is seeking to submit the July 13, 2017 letter as an additional document and not as a pleading, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  Since petitioner did not obtain prior permission to file the July 13, 2017 letter and its attachments either as an additional pleading or an additional document, I have not considered the allegations made in such letter, or the exhibits attached thereto. 

Petitioner’s memorandum of law is dated July 20, 2017 and was served upon respondent on September 8, 2017.  Pursuant to §276.4 of the Commissioner’s regulations, petitioner was required to serve her memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever is later.  Where the answer is served upon petitioner or petitioner's counsel by mail, the date of mailing and the four days subsequent thereto shall be excluded in the computation of the 20-day period in which petitioner's memorandum of law must be served and filed.  Because respondent’s answer was served by mail on July 24, 2017 and petitioner did not serve and submit a reply, petitioner had until August 17, 2017 to serve her memorandum of law.  Petitioner’s memorandum of law was therefore untimely, and petitioner did not submit a written application pursuant to 8 NYCRR §276.4(a) that sets forth good cause for the delay and demonstrates the necessity of the memorandum in determining the appeal.  Petitioner did not make such a written application and has neither established good cause for the delay nor explained the necessity of the memorandum.  Therefore, I have not considered petitioner’s untimely memorandum of law.

The appeal must be dismissed because the petition is not properly verified.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Petitioner did not verify her petition as required by 8 NYCRR §275.5(a).  Instead, the petition was verified by a person who is not a party to this appeal.  Since the petition was not verified by petitioner, this appeal must be dismissed (see e.g., Appeal of Clancy, 50 Ed Dept Rep, Decision No. 16,150). 

Even, if the appeal were not dismissed for lack of proper verification, it would 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Petitioner served her petition upon respondent on June 23, 2017 by personal delivery.  The petition alleges that respondent denied her transfer request that would allow A.J.B. attend seventh grade at the high school for the 2017-2018 school year on March 1, 2017.  The record does not indicate when petitioner actually received superintendent’s March 1, 2017 letter, but applying the usual five days for mailing, the appeal was commenced more than two and a half months after petitioner’s receipt of the superintendent’s decision.  It appears from the record that petitioner attempted to appeal the superintendent’s decision to respondent board of education, but in a letter dated March 20, 2017, she was advised by the board president that under district policy the superintendent makes the decision and his determination is not reviewable by the board of education. Again, there is no indication of when petitioner actually received the board president’s letter, and even assuming that petitioner’s time to appeal runs from the date of respondent’s refusal to review the superintendent’s decision, this appeal was not commenced until almost two months after petitioner's receipt of the March 20, 2017 letter.  Petitioner has not provided any excuse for the delay, and the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed this on the merits.  A 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. In such cases, a board's discretion is broad (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006). 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

As noted above, petitioner admitted that her transfer request was untimely.  Respondent’s policy 5110 clearly requires that transfer requests for incoming seventh graders be submitted by February 15th of the child’s sixth grade year and does not provide for exceptions.  Respondent explains that the deadline for submitting transfer requests exists so that respondent can plan accordingly to make sure that there is sufficient available space and resources for the incoming students.

Petitioner has failed to meet her burden of proving that respondent’s denial of her untimely transfer request was arbitrary and capricious.  She has provided no evidence that respondent has applied the deadline arbitrarily by granting untimely transfer requests from other parents or has violated its own policy in any regard.  Petitioner’s essential argument is that because of her daughter’s emotional needs and her familiarity with the supports available at the high school, an exception should be made to allow her to transfer to the high school.  However, while I sympathize with petitioner’s concern for her daughter, the Commissioner previously ruled in Appeal of Araneo (45 Ed Dept Rep 325, Decision No. 15,336), that respondent’s policy of requiring transfer requests to be submitted by February 15th provides the district with sufficient time to review requests in light of limited space and resources and thus has a rational basis and is consistent with sound educational policy.  Thus, I do not find respondent’s denial of petitioner’s untimely transfer request in accordance with its policy to be arbitrary or capricious or otherwise in violation of law.

THE APPEAL IS DISMISSED.

END OF FILE