Appeal of B.K.V., on behalf of his daughter C.K.V., from action of the Board of Education of the Pittsford Central School District regarding attendance zones.

Decision No. 17,577

(January 30, 2019)

Harris Beach, PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Pittsford Central School District (“respondent”) that his daughter, C.V. (“the student”), is not entitled to attend a school outside the attendance zone in which she resides.  The appeal must be dismissed.

Respondent’s district includes five elementary schools; two middle schools; and two high schools: Pittsford Mendon High School (“Mendon”) and Pittsford Sutherland High School (“Sutherland”).  Respondent’s policy 7130, entitled “Entitlement to Attend - Age and Residency,” states that students must attend school in their attendance zone, with the exception that respondent’s Committee on Special Education (“CSE”) may recommend a placement for students with disabilities outside of their attendance zone.  Respondent also has a policy entitled “Resident and Transfer Requests – Procedures” (“transfer policy”), which permits certain students who move within the district to complete a semester or academic year at the school at which they were previously zoned to attend.

According to the record, petitioner’s family originally resided at an address within the Sutherland attendance zone (the “Sutherland residence”) when they first moved to respondent’s district.  C.V. attended Sutherland during the 2017-2018 school year.

In or about April 2018, petitioner’s family purchased a new residence located at an address within the Mendon attendance zone (the “Mendon residence”).  According to the record, petitioner did not inform respondent that he had purchased the home or that his family had moved; respondent indicates that it became aware of the new address when mail sent to the Sutherland residence was returned.  Upon learning of petitioner’s new residence, the district permitted the student to complete the 2017-2018 school year at Sutherland and enrolled her at Mendon for the upcoming 2018-2019 school year.

By letter dated July 10, 2018, petitioner and his spouse submitted a written request for C.V. to continue to attend Sutherland.  By letter dated July 25, 2018, respondent’s director of student services (“director”) denied petitioner’s request.  According to the record, the student began attendance at Mendon for the 2018-2019 school year.

On September 18, 2018, petitioner and his spouse met with the director and asserted that they were performing renovations on the Mendon residence, and that they were leasing a house located within the Sutherland attendance zone.  Petitioner asserted that this would take “many months.”  Based on these contentions, petitioner renewed his request for C.V. to be allowed to attend Sutherland.[1]  By letter dated October 1, 2018, respondent denied the request, reasoning that:

While you may be temporarily living on the [Sutherland] side of the District while work is done on your home, your domicile is [the Mendon residence] which is located on the [Mendon] side of the District and is the home where you were living before the renovation. You will also return to that home upon completion.

This appeal ensued.  Petitioner’s request for interim relief was denied on November 28, 2018.

Petitioner asserts that respondent’s denial of his request for an exception to the attendance zone policy was in error because attendance at Mendon has been harmful to the student’s emotional and academic well-being.  In support of this contention, petitioner submits a letter from the student’s pediatrician dated October 31, 2018, which notes that, at an appointment on October 29, 2018, the student presented with “significant adjustment reaction with Depressed Mood and Anxiety disorder with panic.”  Petitioner, therefore, requests that respondent’s determination be deemed arbitrary and capricious and that C.V. be allowed to enroll at Sutherland to complete grades 11 and 12.

Respondent contends that the appeal must be dismissed as untimely.  On the merits, respondent generally asserts that decisions concerning student placement within attendance zones are within its discretion pursuant to Education Law §§1709, 1804(1), and 1805.  Respondent asserts that C.V. is not entitled to attend school outside of her attendance zone based upon either policy 7130 or the transfer policy.  Respondent further asserts that no exceptions to these policies apply in C.V.’s circumstances.  Respondent also contends that petitioner’s transfer request was reviewed in accordance with the district’s procedures and that petitioner has failed to establish that respondent’s determination was arbitrary, capricious, or contrary to sound educational policy.

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).  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).

The record indicates that respondent denied petitioner’s September 2018 transfer request by letter dated October 1, 2018.  Allowing the usual five days for mailing, excluding Sundays and holidays, petitioner had to commence an appeal, pursuant to Education Law §310, by November 5, 2018.  Petitioner did not commence the instant appeal until November 15, 2018.  Petitioner requests that his delay in filing the appeal be excused because he required additional time “to observe [the student’s] mental condition after the school district denied her request and took time to get [a] [p]hysician[’s] appointment for 29th Oct.”  While I understand petitioner’s desire to allow his daughter some time to acclimate to the new school environment, it appears that the student began attending Mendon at the beginning of the 2018-2019 school year (i.e. early September 2018).  Therefore, petitioner had approximately two months in which to observe the student in her new educational setting and still file a timely appeal.  Moreover, with respect to petitioner’s perceived need to secure an appointment with a physician prior to commencing the instant appeal, the record reflects that the student had an appointment with her pediatrician on October 29, 2018.  The pediatrician thereafter drafted a letter in support of petitioner’s transfer request dated October 31, 2018.  Therefore, C.V. had seen her pediatrician, who had drafted a letter of support five days prior to the expiration of the 30-day time limitation.  Petitioner has not explained why he could not commence the instant appeal during that time.  Accordingly, petitioner has not established good cause for the delay and the appeal must be dismissed as untimely.

Even if the appeal were not subject to dismissal as untimely, it would be dismissed 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 (Education Law §§1709[3] and [33], 1804[1], 1805).  In such cases, a board’s discretion is broad and a board’s decision 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 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 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 of the record, I cannot conclude that respondent’s denial of petitioner’s request was arbitrary, capricious, or contrary to sound educational policy.  Respondent asserts, and petitioner does not contest, that C.V. resides at the Mendon residence.  In the petition, which was verified on November 1, 2018, petitioner states that C.V. “is currently residing at” the Mendon residence.  Respondent has submitted documentation on appeal which demonstrates that the Mendon address is located within the Mendon attendance zone.  Therefore, the only basis upon which C.V. may be entitled to attend Sutherland is respondent’s policy 7130 or the transfer policy.

The record supports a finding that C.V. is not entitled to attend Sutherland based upon policy 7130 or respondent’s transfer policy.  Policy 7130 is clearly inapplicable, as the only exception by which a student may attend a school outside his or her attendance zone is if he or she has been placed there by the CSE.  Petitioner has neither alleged nor proven that C.V. is a student with a disability, let alone that the CSE recommended a placement located outside of her attendance zone.  The transfer policy is similarly inapplicable to C.V.’s circumstances.  As indicated above, C.V. was in grade 10 when she moved from the Sutherland residence to the Mendon residence.  In accordance with the transfer policy, C.V. was allowed to finish her sophomore year at Sutherland and was subsequently enrolled in Mendon — the school for which she was zoned to attend for the 2018-2019 school year, her junior year.

Finally, although petitioner suggested to respondent in September 2018 that he and his family had temporarily relocated to an address zoned for Sutherland, there is no indication in the record that this move occurred.  Indeed, as indicated above, petitioner asserted that C.V. resided at the Mendon residence as of November 1, 2018, when he verified the petition.  Therefore, to the extent petitioner suggests that C.V. was entitled to attend Sutherland based upon her physical presence therein, petitioner has failed to meet his burden of proof.[2]

While I am sympathetic to petitioner’s concerns regarding C.V., the fact that the student may have difficulty adjusting to a new school, while regrettable, is not a basis for overturning respondent's decision (Appeal of Mohabir, 54 Ed Dept Rep, Decision No. 16,693; Appeal of Sponcy, 33 id. 126, Decision No. 12,998; Appeal of Cullen, 32 id. 179, Decision No. 12,798).

On this record, petitioner has failed to show that respondent’s denial of his request regarding C.V.’s requested transfer was arbitrary, capricious, or contrary to sound educational policy.  Therefore, the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE