Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the North Babylon Union Free School District regarding student placement.

Decision No. 17,857

(June 23, 2020)

Guercio & Guercio, LLP, attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals a determination by the Board of Education of the North Babylon Union Free School District (“respondent”) denying her request to enroll her child (“the student”) in the Long Island High School for the Arts (“LIHSA”), a program offered through the Board of Cooperative Educational Services of Nassau County (“Nassau BOCES”).  The appeal must be dismissed.

During the 2018-2019 school year, the student attended eighth grade in respondent’s district.  The record indicates that in January, April, and May 2019, petitioner contacted several district employees and inquired about the process for enrolling the student in a half-day arts program at LIHSA for the upcoming 2019-2020 school year.  According to respondent, each employee advised petitioner that the district does not participate in LIHSA.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 21, 2019.

Petitioner asserts that the student needs the “kind of educational environment available at LIHSA” because the student is an “extraordinarily talented and creative artist” who uses her artwork as an “outlet for relief” from “chronic anemia and pain.”  Petitioner contends that respondent’s denial of her request to enroll the student in LIHSA “unfairly and arbitrarily denied [the student] equal access to a free public school program.”  Petitioner also contends that another district student currently attends LIHSA.  For relief, petitioner seeks a determination that respondent permit the student to attend LIHSA’s “half-day ... program for arts if she successfully auditions for the program.”

Respondent argues that the appeal must be dismissed, inter alia, for failure to join a necessary party; as untimely; and for failure to state a claim upon which relief may be granted.  Respondent further asserts that it acted rationally and in good faith, that it “does not currently have a contract with Nassau BOCES for the [s]tudent to attend [LIHSA],” and that its schools provide ample arts education.

I must first address several procedural issues.  Petitioner submitted a reply in this matter.  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.

Petitioner also submitted a memorandum of law.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  Therefore, while I have reviewed the petitioner’s memorandum of law submitted by petitioner, I have not considered those portions that contain new allegations or exhibits.

Although respondent submitted a memorandum of law, it did not submit an affidavit reflecting service upon petitioner.  All pleadings other than the petition must be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney (8 NYCRR §275.8[b]).  Because there is no proof in the record that respondent served its memorandum of law on petitioner, I cannot consider it.

The appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Here, petitioner seeks to compel respondent to permit her daughter to attend LIHSA.  LIHSA, however, is a shared service offered by Nassau BOCES.  In order to participate in a BOCES service, component districts must inform BOCES of the services that they seek to participate in before May 1 and thereafter enter into contracts with BOCES for its provision of such services (Education Law §1950[4][d][4]).  The record reflects that respondent did not participate in LIHSA for the 2019-2020 school year and has no contract with Nassau BOCES for this service.  Therefore, although petitioner desires admission to LIHSA on the student’s behalf, the student has no right to attend LIHSA absent a contract between respondent and Nassau BOCES.  Consequently, petitioner lacks standing to compel respondent to enter into a contract with Nassau BOCES and the appeal must be dismissed.[1]

Even assuming, arguendo, that respondent contracted with Nassau BOCES to participate in LIHSA, the appeal would be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Here, petitioner seeks a determination that respondent must allow the student to attend LIHSA, a program operated by Nassau BOCES, if the student successfully auditions for such program.  Nassau BOCES would be affected by an order requiring it to permit the student to audition and/or enroll in LIHSA.  Therefore, Nassau BOCES is a necessary party, and the appeal must also be dismissed for failure to join Nassau BOCES (Appeal of G.G., 51 Ed Dept Rep, Decision No. 16,331).

Finally, I note that, even if petitioner had standing to commence this appeal and had joined Nassau BOCES as a necessary party, I would lack jurisdiction to grant petitioner’s requested relief.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Here, petitioner seeks a determination that respondent allow the student to attend LIHSA “if she successfully auditions for the program.”  Because there is no evidence in the record that the student has in fact auditioned for admission to the program, as required, any adjudication of her right to attend LIHSA would be purely advisory under the circumstances.

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

THE APPEAL IS DISMISSED.

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