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Decision No. 13,261

Appeal of M. ANN CORBETT, on behalf of PATRICIA A. CORBETT, from action of the Board of Education of the Sackets Harbor Central School District regarding reimbursement for tuition and transportation expenses.

Decision No. 13,261

(September 16, 1994)

O'Hara & O'Connell, P.C., attorneys for respondent, Sharon A. Sutter, Esq., of counsel

SOBOL, Commissioner.--Petitioner, the legal guardian of Patricia A. Corbett, seeks an order directing respondent to reimburse petitioner for the cost of tuition and transportation related to Patricia's attendance at the Watertown City School District. The appeal must be dismissed.

On November 20, 1992, petitioner submitted a letter to respondent's superintendent complaining that two female students had harassed Patricia during Music class. The record does not indicate the details of this incident. Respondent's superintendent met with petitioner and Patricia's teacher and investigated the matter. On November 25, 1992, the superintendent wrote petitioner with a proposed method of addressing the situation. Specifically, the superintendent indicated that the classroom teacher would talk to the students involved and "relocate" them. On December 9, 1992, petitioner wrote the superintendent thanking him and expressing her satisfaction with his actions.

In April 1993, petitioner again contacted officials of respondent's district and expressed general concerns that Patricia was being harassed by other (mostly female) students. Once again, the record is not clear as to the nature of petitioner's concerns. As a result, respondent's superintendent instructed all of Patricia's teachers to watch for harassing incidents and intervene, when appropriate. During May and June 1993, petitioner reported several other incidents of harassment to district officials. Upon investigation, those allegations were found to be without merit. During this same time period, Patricia reported two incidents. The first incident involved a student allegedly pushing books out of Patricia's hands. The student involved was sent to detention. The second incident involved another student slapping Patricia. That student was suspended from class.

By letter dated August 21, 1993, petitioner requested private tutoring for Patricia for the next school year. On August 31, 1993, respondent's interim superintendent wrote petitioner, suggesting alternatives to home tutoring that would address petitioner's concerns. On September 3, 1993, respondent received a release signed by petitioner requesting that Patricia's records be sent to the Watertown City School District. Petitioner commenced this appeal on January 27, 1994.

Before reviewing the merits, I must address a procedural issue. Petitioner offers new allegations and exhibits in her reply which were not included in the petition. Pursuant to 8 NYCRR 275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of Post, 33 Ed Dept Rep 151; Appeal of Eastman Kodak, 32 id. 575). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Eastman Kodak, supra; Appeal of Taber, et al., 32 id. 346). Accordingly, I have not considered the portion of the reply that contains new allegations or exhibits.

Petitioner contends that respondent failed to provide Patricia with a "safe, clean, wholesome setting in which to learn", and that such failure required her to enroll Patricia in the Watertown City School District. Petitioner further argues that respondent is required to reimburse her for tuition and transportation expenses resulting from Patricia's enrollment in the Watertown district. In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Norkin, 33 Ed Dept Rep 643; Appeal of Singh, 30 id. 284; Appeal of Pickreign, 28 id. 163). While petitioner's concerns in this matter are understandable, she offers no evidence that respondent has failed to respond appropriately to her concerns. To the contrary, the record shows that respondent investigated every complaint registered by petitioner or Patricia. Moreover, when the complaint was found to be valid, school officials acted on the matter by either removing potential sources of conflict or disciplining the students involved.

In addition, in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Schrier, 33 Ed Dept Rep 656; Appeal of Singh, supra). Aside from her bare assertions on this matter, petitioner presents no legal support for the school district's fiscal liability. In fact, it has repeatedly been held that a board of education which offers a free public education within the district is not obligated to pay tuition or provide transportation for a child enrolled by his or her parents in a public school in another school district (Matter of Cook and Knapp, 23 Ed Dept Rep 323; Matter of Keene, 19 id. 547; Matter of Klein, et al., 76 St Dept Rep 133).