Appeal of MICHAEL KNOX BERAN on behalf of his daughter CAROLINE WARD BERAN, from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding the distribution of textbooks.

Decision No. 17,528

(October 23, 2018)

Ingerman Smith, LLP, attorneys for respondent, Jeffrey Craven, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the Katonah-Lewisboro Union Free School District (“respondent” or “respondent board”) pertaining to the loan of textbooks to his daughter, Caroline (“the student”).  The appeal must be dismissed.

At all times relevant to this appeal, petitioner resided in respondent’s district and the student was “enrolled as a boarding student” in a nonpublic school in Massachusetts.

According to an affidavit from respondent’s school business administrator (“administrator”), on or about August 14, 2017, petitioner’s wife came to respondent’s district offices and submitted, on behalf of the student, a request for textbooks for the 2017-2018 school year.  In her affidavit, the administrator also states that she and two other district employees - the district’s purchasing agent and the district’s account clerk - denied petitioner’s wife’s request because “the [d]istrict recently determined that [d]istrict students attending out-of-state residential schools are not legally entitled to textbook loans.”[1]  

By letter dated August 16, 2017, petitioner wrote to respondent board and its superintendent, and requested that the district “comply with the law by purchasing the relevant textbooks for [the student] and loaning them to her ....” [2]

There is no evidence in the record to indicate what, if any, communication occurred between the parties after petitioner’s August 16, 2017 letter until petitioner wrote again to respondent in January 2018.  Specifically, by letter dated January 4, 2018, petitioner wrote to respondent and requested that it “comply with the law” and purchase the necessary textbooks and loan them to the student and “for the courtesy of a reply to the issue raised in this letter.”  By letter dated January 12, 2018, respondent’s district clerk denied petitioner’s request.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 5, 2018. 

Petitioner contends that respondent’s denial of petitioner’s textbook loan request is unlawful.  He argues that pursuant to Education Law §701, the student is entitled to loaned textbooks.  Petitioner challenges  the legality of a provision in §21.2(a) of the Rules of the Board of Regents (8 NYCRR §21.2[a]) that excludes pupils “enrolled in residential schools located outside the State of New York” from participation in the textbook loan program under Education Law §701.  He argues that it “arbitrarily and inequitably departs from the letter and spirit of New York State Education Law §701 under which it was promulgated ....”  He also argues that respondent is:

treating [the student] differently from other students in [the district], and violat[ing] her rights under New York State law and her rights to due process and the equal protection of the laws pursuant to the Fourteenth Amendment to the United States Constitution.

As relief, petitioner requests a determination that respondent is in violation of New York State Education Law §701 and essentially a declaration that the provision of  8 NYCRR §21.2(a), relied upon by respondent, is invalid.  He also requests an order that respondent “modify its textbook policies to comply with said law.”

Respondent argues that the appeal must be dismissed as untimely, for failure to state a claim upon which relief can be granted and for failure to meet the burden of proof.  Respondent argues that to the extent petitioner seeks the purchase and loan of textbooks for the student for the 2017-2018 school year, the appeal must be dismissed as moot.  Respondent also argues that to the extent petitioner challenges the validity of 8 NYCRR §21.2, the appeal must be dismissed for lack of jurisdiction.  Additionally, respondent asserts that its actions were not arbitrary, capricious or unreasonable.  Finally, respondent objects to petitioner’s submission of a letter dated March 12, 2018 and attached email dated March 1, 2018.

I will first address the procedural matters.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Respondent objects to petitioner’s submission of a letter dated March 12, 2018[3] which attaches an email dated March 1, 2018 that he received from the State Education Department’s Office of Special Education.  Additional affidavits; exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 of the Commissioner’s regulations is required to submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such document, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties (8 NYCRR §276.5[a]).  Petitioner does not explain why the letter and attached email are necessary to a determination of this appeal, nor did he request or obtain prior permission of the Commissioner to serve and file them.  I have reviewed the letter and email and find that they contain new factual or legal assertions which were not raised in the pleadings, but that petitioner could not have submitted the new material and raise the interpretation of the regulation contained therein in his petition or reply because he did not receive the email from the Office of Special Education until March 1, 2018, after service of the reply.  Because petitioner’s submission relates directly to the interpretation of the challenged language in 8 NYCRR §21.2(a), and thus is highly relevant to petitioner’s claim concerning the legality of the challenged language, and respondent has been afforded a full and fair opportunity to respond and did so in a letter dated March 15, 2018, I will exercise my discretion and accept the letter and email for filing pursuant to 8 NYCRR §276.5.

However, 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Respondent argues that it denied petitioner’s request on or about August 14, 2017 and that petitioner’s letter dated January 4, 2018 “repeated almost verbatim” his letter dated August 16, 2017 and “merely sought written memorialization of the legal grounds for the [d]istrict’s textbook denial in August of 2017.”  In his reply, petitioner disputes that any communication on August 14, 2017 constituted a denial.  He argues that he wrote the letter dated August 16, 2017 because he and his wife, “having heard nothing further from the [d]istrict [e]mployee, thought that she was simply dragging her feet in the matter” and he therefore decided to write to respondent.  Petitioner further argues that he wrote the letter dated January 4, 2018 “seeking an explanation and a decision ....”  Petitioner alleges that he thought that respondent’s letter of January 12, 2018 was a “decision or action of [r]espondent sufficient to form the basis of an appeal to the Commissioner.”[4]  However, based on the record before me, petitioner, by his own admission, received actual notice that the district denied the request to purchase and loan textbooks submitted by his wife for the student in August 2017.  Petitioner’s letter dated August 16, 2017 stated:

[o]n August 15, 2017, an official of [the district] informed my wife that [the district] would not purchase textbooks and loan them to our daughter for the coming school year because she attends an out-of-state residential school (internal quotations omitted).

Therefore, petitioner knew in August 2017 that the textbook request for the 2017-2018 school year was denied, and it appears that in his January 4, 2018 letter he was seeking reconsideration which, as stated above does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Here, the petition was served on respondent on January 29, 2018, more than five months after respondent’s determination in August 2017.  Petitioner does not set forth good cause for the delay in his petition as required by 8 NYCRR §275.16.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed as untimely, to the extent petitioner challenges respondent’s failure to purchase and loan the requested textbooks in the 2017-2018 school year, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  Since the 2017-2018 school year has ended, petitioner’s claim relating to such school year is moot.

Similarly, to the extent that petitioner challenges the validity of Commissioner’s regulation 8 NYCRR §21.2, the appeal must be dismissed for lack of jurisdiction.  It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department (Appeal of Carmel Academy, 56 Ed Dept Rep, Decision No. 16,976; Appeal of the School for Language and Communication Development, 46 id. Rep 536, Decision No. 15,586; Appeal of Friends to the Elderly, Youth & Family Ctr., Inc., 46 id. 227, Decision No. 15,489). This principle applies equally to a challenge to the legality of a rule or regulation, and thus an appeal to the Commissioner pursuant to Education Law §310 is not the proper forum for challenging legality of Commissioner’s regulations or, in this case, a Rule of the Board of Regents (see Appeal of Marson, 49 Ed Dept Rep 295, Decision No. 16,031; Appeal of Story, 32 id. 176, Decision No. 12,797, affd sub nom Board of Education of the Beacon City School District v. Story, et al., 212 AD2d 76).  The legality of rules and regulations can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

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

THE APPEAL IS DISMISSED.

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