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Decision No. 14,309

Appeal of BARBARA ANN JONES, on behalf of KATHLEEN and THERESA JONES, from action of the Board of Education of the Hempstead Union Free School District regarding a request for tuition payment.

Decision No. 14,309

(February 15, 2000)

Berkman, Henoch, Peterson & Peddy, PC, attorneys for respondent, Gilbert Henoch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Hempstead Union Free School District ("respondent") to pay for her daughters’ education in another public school district or at a private school. The appeal must be dismissed.

In late September or early October 1999, petitioner’s daughter Theresa was involved in a dispute with another student in her class at Hempstead High School. This student allegedly threatened to harm Theresa. Petitioner alleges that for about two weeks following this incident, the student made racially discriminatory remarks and physical threats to Theresa and her sister, Kathleen. On October 8, 1999, the student again allegedly threatened petitioner’s daughters in the school cafeteria. As a result, the girls' teacher filled out a student behavior referral form regarding the student's conduct.

Thereafter, petitioner complained to the district about the student's behavior and about the teacher’s alleged failure to intervene to protect Theresa and Kathleen. In letters to the principal and superintendent dated October 13, 1999, petitioner stated that her daughters were afraid to return to the high school. She requested that the district immediately provide home tutors. She further stated that she expected the district to pay tuition for her daughters at another high school outside the district or a private school, so that they could receive a free public education in a safe environment.

The student who threatened petitioner’s daughters was suspended from school from October 14 through 20. On October 20, petitioner met with the superintendent, the principal, the school district attorney and others. At that meeting, the district offered to remove petitioner’s daughters from their present classroom and place them in another class in the high school. Petitioner disagreed with this proposal.

By letter dated October 20, 1999, the district’s attorney advised petitioner that he and the superintendent had discussed her daughters’ placement with the board of education. He stated that home tutoring was not justified because the district did not direct petitioner’s daughters to remain out of school. He also stated that the district had no authority to pay the girls’ tuition at a public school in another district or a private school. He requested that petitioner return her daughters to school immediately and noted that the district would take appropriate legal steps if she did not.

Petitioner claims that she "cannot" return her daughters to Hempstead High School because the district’s "neglect and tolerance for aberrant behaviors" threatens their safety. She asserts that her daughters’ teacher failed to intervene when the other student threatened and harassed them. She argues that the district has not addressed the lack of proper supervision and states that the district’s proposed remedy, transferring her children to another class, is inadequate. She contends that her children are entitled to a free public education in a safe environment and maintains that they must be placed in another school at district expense.

Respondent asserts that it has no authority to pay tuition for petitioner’s daughters at a public school in another district or a private school. Respondent also claims that it acted properly in suspending the offending student when the extent of her threatening behavior became clear and offered to transfer petitioner’s daughters to another classroom. Respondent argues that petitioner has failed to show that its actions were arbitrary, capricious or illegal.

I will first address a procedural issue. In her reply, petitioner asks for a "stay" in the grading process so that her daughters do not receive failing grades for the time they have been out of school. The Commissioner’s regulations provide that a petitioner who wishes to apply for a stay shall do so in the petition, which must contain notice of the stay request (8 NYCRR "276.1). Petitioner did not follow those procedures in this appeal. Accordingly, I have not considered her stay request.

The appeal must be dismissed. In an appeal to the Commissioner, the petitioner bears the burden of establishing all the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Wendy and Robert L., 39 Ed Dept Rep , Decision No. 14,222) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 id. 694, Decision No. 14,120). Petitioner offers only conclusory assertions that her daughters are not safe at school. Moreover, she offers insufficient evidence that respondent has failed to respond appropriately to her concerns. To the contrary, the record indicates that the offending student was suspended for a period of five days for her behavior on October 8, and the district offered to reassign petitioner's daughters to another classroom. In sum, petitioner has failed to show that respondent has acted arbitrarily or capriciously in addressing her daughters’ safety.

Indeed, petitioner has no legal right to demand a particular educational setting for her children (Appeal of Schrier, 33 Ed Dept Rep 656, Decision No. 13,184). Education Law "1709(3) gives boards of education broad discretion in assigning students to schools. Petitioner’s dissatisfaction with the district’s choices does not entitle her to tuition reimbursement (Appeal of Ortiz, 34 Ed Dept Rep 341, Decision No. 13,333; Appeal of Corbett, 34 Ed Dept Rep 138, Decision No. 13,261).

It is apparent that petitioner perceives that her daughters will not be safe if they return to Hempstead High. However, there is no evidence to support that assumption. Moreover, the respondent has demonstrated that it will act appropriately and promptly should legitimate safely concerns arise. Under these circumstances, I remind petitioner that parents are responsible for sending their children to school (Education Law "3212[2][b]). Defiance of the compulsory education law is not an appropriate tool for attempting to force a school district to take action. Theresa and Kathleen have been absent from school since October 12, 1999, and petitioner is obligated under law to ensure that they attend, or make other arrangements for their education. Respondent is similarly reminded of its obligation to ensure compliance with the compulsory education law.