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Decision No. 13,948

Appeal of PHILLIP A. EHNOT from action of the Board of Education of the Brockport Central School District regarding a school attendance policy.

Decision No. 13,948

(May 29, 1998)

Harris, Beach & Wilcox, LLP, attorneys for respondent, Laura M. Purcell, Esq., of counsel

MILLS, Commissioner.--Petitioner seeks review of a school attendance policy adopted by the Board of Education of the Brockport Central School District ("respondent") and requests that the policy be "dropped" or modified. The appeal must be dismissed.

The petition in this appeal contains two paragraphs in which petitioner, a resident of respondent's school district, alleges in a conclusory fashion that respondent's attendance policy does not conform to State guidelines. A copy of the attendance policy is attached to the petition, but the pleading contains no further allegations regarding the manner in which petitioner is aggrieved by respondent's policy.

In its answer, respondent indicates that petitioner's son was a student at respondent's senior high school. Respondent asserts that on December 6, 1996 petitioner's son voluntarily withdrew from enrollment, that petitioner notified the superintendent of schools of such withdrawal, and that the attendance policy at issue had not been applied to petitioner's son prior to his withdrawal from school. Respondent argues that, because his son has voluntarily withdrawn from school, petitioner lacks standing to maintain this appeal. Respondent also claims that, even if petitioner had standing, the appeal is untimely. Finally, respondent argues that the petition fails to set forth any factual or legal basis for relief.

Prior to addressing the parties' claims, I will first address a procedural matter. In his verified reply, petitioner sets forth for the first time additional facts and allegations upon which he bases his claims in this appeal. The purpose of a reply is to respond to new material and affirmative defenses set forth in respondent's answer (8 NYCRR "275.14). A reply is not meant to buttress allegations in a petition or add belatedly assertions or exhibits which should have been in the petition (Appeal of Pasquale, 36 Ed Dept Rep 290; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). The petition contains only two brief paragraphs which respondent was required to answer. The reply contains new facts and allegations to augment the petition. The material contained in the reply could easily have been included in the petition, and petitioner offers no reason for not doing so. Therefore, the new material contained in the reply is not properly before me and cannot be considered.

Respondent raises a number of valid procedural defenses which warrant dismissal of this appeal. First, respondent asserts that petitioner lacks standing to maintain the appeal. My review of the petition indicates that it is devoid of any allegation that petitioner is aggrieved by respondent's attendance policy. The petition merely challenges the policy perse and sets forth no allegation of injury. It is well settled that mere status as a resident and taxpayer in a school district does not confer standing on which to challenge school district policies (Appeal of DePasquale, 30 Ed Dept Rep 361; Appeal of Little, 30 id. 154). Moreover, respondent asserts in its answer that petitioner's son who had been attending high school in the district voluntarily withdrew from school on December 6, 1996. Petitioner initiated this appeal on February 19, 1997. Petitioner does not dispute that his son left school the previous December, nor does he assert that his son intends to return to school. Inasmuch as petitioner has no child in school subject to respondent's high school attendance policy, he lacks standing to maintain this appeal.

Respondent also claims the appeal is untimely. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision or action complained of. Even if I were to assume petitioner's son's withdrawal from school was precipitated by a desire to avoid application of respondent's attendance policy, such withdrawal occurred on December 6, 1996. This appeal was not initiated until February 19, 1997 – 74 days later. In his reply, petitioner states only that "it took time" to talk to State Education Department staff regarding attendance policy guidelines and the appeal process. This explanation is not a basis on which to excuse a delay in commencing an appeal within the required time period (Appeal of A.B., 36 Ed Dept Rep 155; Appeal of a Child with a Disability, 33 id. 672; Application of Johnson, 32 id. 458). The appeal, therefore, is untimely.

Respondent also asserts that the petition fails to state a claim for relief. Section 275.10 requires that a petition contain a clear, concise statement of the petitioner's claim showing that the petitioner is entitled to relief. The petition in this appeal consists of two short paragraphs and is completely devoid of either a factual basis establishing that any individual has been aggrieved by respondent's action or any legal basis to establish the respondent acted contrary to law. On the record before me, I find the petition fails to state any claim for relief pursuant to Education Law "310.

The numerous procedural deficiencies set forth warrant dismissal of this appeal. However, I note that in its answer respondent indicates that it reviews its attendance policies to ensure compliance with State and federal laws. Therefore, I am compelled to make the following observation for respondent's consideration.

Respondent's attendance policy provides that, where a student has exceeded the number of permissible absences for a specific class, the student cannot receive credit for the class and is placed on audit status. The policy does not distinguish between excused and unexcused absences for that purpose. A board of education may adopt a policy requiring a minimum amount of attendance for students to receive academic credit (Appeal of Hansen, 34 Ed Dept Rep 235; Appeal of Ackert, 30 id. 31). Such attendance policy may not distinguish between excused and unexcused absences for purposes of imposing the academic sanction of the denial of course credit (Appeal of Pasquale, 36 Ed Dept Rep 290; Appeal of Hansen, supra). I note that respondent's attendance policy includes an appeal process to determine whether "extenuating circumstances" exist. It is not evident from the record how the appeal process is applied. Respondent asserts in its answer that the appeal process is available only to: 1) allow students to challenge the number of absences on record; 2) ensure that no violation of the federal Individuals with Disabilities Education Act or Section 504 of the Rehabilitation Act has occurred; and 3) to give students a "last chance" under the policy by waiving the maximum allowance absence limit for extenuating circumstances – without regard to whether the prior absences are excused or unexcused. It appears on its face that the policy is permissible in that it does not differentiate between excused or unexcused absences at any level. Respondent is cautioned to ensure that the policy is, in fact, being applied in such neutral manner and, thus, complies with State law.

In light of my disposition of this appeal on the several procedural grounds set forth above, I need not address the parties' remaining arguments.