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Decision No. 13,924


Appeal of ROY HOLZER, on behalf of AMANDA HOLZER, PAMELA H. GRAY, on behalf of RYAN and JAMES GRAY, MICHAEL MCLEAN on behalf of ALYCIA and TRISTAN MCLEAN, THOMAS J. THORNTON, on behalf of JAMIE THORNTON, and LAURIE J. REYNOLDS, on behalf of JUSTIN and JASON REYNOLDS, from action of the Board of Education of the AuSable Valley Central School District regarding nonresident students.

Decision No. 13,924

(April 22, 1998)

Richard J. Miller & Associates, P.C., attorneys for petitioners, Rudolph J. Meola, Esq., of counsel

Stafford, Trombley, Purcell, Owens & Curtin, P.C., attorneys for respondent, Susanna S. Piller, Esq., of counsel

MILLS, Commissioner.--Petitioners, on behalf of their minor children, challenge the decision of the Board of Education of the AuSable Valley Central School District ("respondent") to exclude certain nonresident students. The appeal must be dismissed.

At the time this appeal was commenced, the eight children represented by petitioners ranged in age from 9 to 14 years old. All eight were nonresidents of the AuSable Valley Central School District ("the district"), each having attended the district since kindergarten. At the time they enrolled, respondent permitted nonresident students to attend the district with the permission of the superintendent. Although the petition is not explicit in this respect, nonresident students were apparently admitted on a tuition-free basis. Petitioners allege that at the time the children were first enrolled, district officials indicated that those children would be permitted to graduate from the district and would not be expelled on the grounds of nonresidency.

On September 21, 1994, respondent passed the following resolution:

RESOLVED, to allow the already enrolled non-resident students to continue their education at AuSable Valley until which time they graduate and from this day forward, not accept anymore non-resident students.

Petitioners allege that the eight children were enrolled as nonresident students at the time the resolution was adopted (although respondent contends that Tristan McLean was attending Holy Name School in September 1994).

On December 18, 1996, respondent passed another resolution pertaining to nonresident students:

RESOLVED, that AuSable Valley Central School District will no longer accept new non-resident students. All non-resident students currently in grades K through 7 will be allowed to stay and finish the 1996-97 school year at the end of which they must leave and enroll elsewhere. All non-resident students currently in grades 8 thru 12 will be allowed to continue their education here through graduation from grade 12.

By letter dated January 3, 1997, respondent notified parents of children who would be excluded beginning in the 1997-98 school year. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on August 14, 1997.

Petitioners argue that respondent acted arbitrarily and abused its discretion by reneging on its commitment to these students. They contend that respondent's decision "is imprudent, callous, improper and should be reversed." Petitioners also argue that the district waived its right to exclude the children when it adopted its 1994 resolution, which expressly stated that all nonresident students then enrolled would be allowed to graduate from the district. Petitioners further argue that they relied on the district policy and representations made by district officials in enrolling their children and that respondent should therefore be estopped from changing its prior ruling. Petitioners request that respondent's December 18, 1996 decision be vacated and that respondent be compelled to honor its September 21, 1994 resolution.

As a preliminary matter, respondent contends that Alycia McLean would be permitted to remain as a nonresident as she was in the 8th grade during the 1996-97 school year. The Commissioner of Education will determine only matters in actual controversy and will not render a decision on a state of facts that no longer exists or which subsequent events have laid to rest (Appeal of Boehm, 37 Ed Dept Rep 208; Appeal of Harvey, 37 id. 194). Thus, with respect to petitioner Michael McLean, on behalf of Alycia McLean, the appeal must be dismissed as moot.

Respondent maintains that it has the discretion to admit or deny the admittance of nonresident students and that its determination was a valid exercise of its discretion. Respondent argues that its determination has a rational basis and complies with the Education Law. Respondent argues that the action was taken to reduce over-crowding, to alleviate over-burdened facilities and to prevent hiring additional teachers, thereby affecting the district's budget allocations for other programs and enabling the district to better accommodate its resident students. It maintains that its decision to allow grades 8 through 12 to remain has a rational basis in that grades kindergarten through 7 are overcrowded and the district would have had to hire additional teachers for those grades if nonresident students remained. Respondent also contends that the appeal is untimely and that petitioners fail to state a claim upon which relief can be granted.

The appeal must be dismissed as untimely. Pursuant to Commissioner's regulation ' 275.16, an appeal to the Commissioner of Education pursuant to Education Law ' 310 must be instituted within 30 days from the making of the decision or the act complained of, unless excused for good cause shown. Respondent adopted its resolution on December 18, 1996 and sent notices dated January 3, 1997 to affected parties. Yet this appeal was not commenced until July 29, 1997.

Petitioners argue that the appeal should not be dismissed as untimely because they were denied due process. Specifically, they contend that Commissioner's regulation ' 100.2(y) requires that prior notice be given when residency determinations are to be made and that respondent failed to give them prior notice that the issue would be determined at the December 18, 1996 meeting. However, petitioners' reliance on this regulation is misplaced. Section 100.2(y), entitled "Determination of student residency," sets forth procedures to be followed when a district determines whether a child is a district resident. In such situations, parents have the opportunity to submit information concerning the child's residency status prior to the determination. Here, residency is not the issue. All parties agree that these children are not residents of the district. Thus, ' 100.2(y) and its prior notice requirement are not applicable. Furthermore, petitioners were notified of the determination by letter dated January 3, 1998. Accordingly, petitioners were not prevented from commencing a timely appeal due to the lack of notice (Application of Lilker, 35 Ed Dept Rep 14).

Petitioners further contend that the appeal was late because they were unaware of the appeal process. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of A.B., 36 Ed Dept Rep 155; Appeal of Kline, 35 id. 91). I find no evidence of unusual circumstances in this case.

Petitioners also argue that the appeal should not be dismissed as untimely because in a residency case a student could reapply for admission at any time and could appeal the new decision. Indeed, in residency cases where the facts suggest residency and the delay is de minimus, the Commissioner has held that requiring a student to reapply at the district level before appealing to the Commissioner does not promote judicial economy and has declined to dismiss such appeals as untimely (Appeal of Murphy, 37 Ed Dept Rep 162). Petitioners' argument is inapplicable. As discussed above, the issue here is not residency. Rather, the issue is whether certain nonresident students may attend the district in the 1997-98 school year and thereafter.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on its merits. Education Law ' 3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

This clearly establishes the right of residents to attend the public schools of the district tuition-free. That right does not extend to nonresidents without the express consent of the board of education:

Nonresidents of a district, if otherwise competent, may be admitted into the school or schools of a district or city, upon the consent of the trustees or the board of education, upon terms prescribed by such trustees or board (Education Law ' 3202(2)).

The purpose of this statute is to limit the obligation of school districts to provide education and related services to students whose parents or legal guardians reside within the district (Appeal of Curtin, 27 Ed Dept Rep 446; Matter of Buglione, 14 id. 220).

Petitioners argue however that Education Law ' 2045 requires that "districts shall not refuse to receive nonresident academic pupils for instruction without valid and sufficient reasons therefor." However, ' 2045 deals with contractual arrangements between districts, not the voluntary admittance of individual nonresident students at issue here. Districts have the discretion to accept or refuse individual nonresident students (Matter of Hetko, 16 Ed Dept Rep 52). Petitioners' children are admittedly not residents of the district. Therefore, absent other grounds for sustaining the appeal, respondent has the discretion to exclude petitioners' children.

Petitioners argue that respondent's actions constitute an abuse of that discretion -- that the actions were arbitrary and unjust. Respondent contends that its actions were reasonable. Specifically, it maintains that excluding nonresident students in grades K through 7 would reduce overcrowding, eliminate the need to hire additional teachers, and allow it to better accommodate its resident students. Respondent presents a rational basis for its current policy. Therefore, I cannot conclude that the policy is arbitrary, capricious and unreasonable and will not substitute my judgment for that of respondent.

Petitioners argue that respondent waived its right to exclude these students upon adoption of its September 1994 resolution, which stated that all non-resident students then enrolled would be allowed to continue in the district until they graduated. "A waiver is the intentional relinquishment of a known right with both knowledge of its existence and an intention to relinquish it" (Werking v. Amity Estates, 2 NY2d 43, 52). However, a waiver "should not be lightly presumed" (Gilbert Frank Corp. v. Federal Ins. Co., 70 NY2d 966, 968). Petitioners argue that the board had a right to exclude those children and intentionally waived that right in adopting the 1994 resolution. However, there is no evidence that when respondent adopted its September 1994 resolution it intended to waive its right to adopt a different, possibly overriding, policy in the future, which it has the power to do.

Petitioners also argue that respondent should be estopped from excluding their children. Except in limited circumstances not applicable here, equitable estoppel does not apply against a government subdivision (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. v. Moore, 52 NY2d 88; Appeal of Prospero, 37 Ed Dept Rep 62).

In appeals to the Commissioner of Education, petitioners bear the burden of establishing a clear right to relief requested (Appeal of DiStefano, 36 Ed Dept Rep 217). Here, petitioners have failed to meet that burden. I am not, however, unsympathetic to the predicament of petitioners and their children. They are understandably disappointed by respondent's decision to reverse its prior commitment to "grandfather" the children and allow them to remain in the district, should they so choose, until high school completion. This change in policy has an unfortunate impact on petitioners' children. However, it is within respondent's discretion to do so and respondent has presented a rational basis for its current policy.