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Decision No. 14,491

Appeal of M.G. and J.G., on behalf of their son, from action of the Board of Education of the Plainedge Union Free School District regarding tuition reimbursement.

Decision No. 14,491

(November 30, 2000)

Ingerman Smith, L.L.P., attorneys for respondent, Warren H. Richmond, Esq., of counsel

MILLS, Commissioner.--Petitioners M.G. and J.G., the parents of a student at Plainedge High School, challenge the denial by the Board of Education of the Plainedge Union Free School District ("respondent") of their request that respondent reimburse the cost of nonresident tuition that petitioners incurred when they enrolled their son in another school district. The appeal must be dismissed.

On October 25, 1999, petitioners' son was engaged in an Internet online chat with a friend. During this chat, the friend apparently believed that petitioners’ son was threatening several Plainedge High School students. The friend reported the chat to a school board member, Josephine Reder, provided Ms. Reder with a printout of the online conversation, and also told Ms. Reder that he had gone into petitioners' son’s computer files and discovered that he had ordered 200 gallons of "petro" (alternatively referred to in the record as explosives).

Ms. Reder discussed this information with the deputy superintendent, and they decided to contact the police and notify the parents of the threatened students about the alleged threats. The superintendent and the high school principal met with police detectives during the evening of October 25, 1999, who advised the school officials that no crime had been committed but that they would be speaking to the student who had made the alleged threats.

The police detectives arrived at petitioners' home at approximately 11:45 on the night of October 25, 1999. Petitioners assert that, after a brief interview, the detectives stated that the complaint was ludicrous and that they were dismissing all allegations (neither party in this appeal has furnished a copy of any police report of this incident). The detectives also assured petitioners that their identity had been kept anonymous. However, although school officials did not identify the alleged threatening student when they contacted the other students' parents, petitioners' son’s identity became known. The principal suggested that the student’s parents take him to be evaluated, and that they keep him out of school the following day to accomplish the evaluation. The student's mother, petitioner M.G., agreed and stated that she did not want her son at school.

The principal arranged for the high school psychologist to meet on October 26, 1999 with the students who had allegedly been threatened. The principal also talked to M.G., suggesting that her son be kept on home tutoring for the remainder of the week as a "cooling off" period. M.G. agreed, and again said that she did not want her son back in school.

School officials developed a plan for petitioners’ son’s return to school by November 11, 1999. The plan included an evaluation of the student by his family psychologist or psychiatrist, and a confirmation that the student did not pose a threat to himself or other students. The plan further provided that the students who were allegedly threatened in the e-mail would meet for individual counseling with the school psychologist or social worker. These students would also meet with the principal and superintendent to discuss the importance of working together to resolve the incident, and to be informed of the consequences that would befall any negative activity directed toward petitioners’ son. The plan also included additional meetings with parents and staff, and mediation sessions conducted by the school psychologist and social worker during which petitioners’ son would meet individually with each of the seven threatened students. The record does not clearly indicate how many of these steps were actually accomplished.

Petitioners submit a report by a family therapist who evaluated their son on or about November 8, 1999. The therapist opined that petitioners’ son had simply been expressing his feelings in response to the other student's request to elaborate, and that there was no indication that petitioners’ son was dangerous to anyone. The therapist also noted that petitioners’ son had told the other student during the online chat that any disclosure of his feelings about the bullies at school would put him in danger. Petitioners also submit additional undated chat transcripts that purport to show that their son was in danger if he returned to school, and contend that his e-mail name was used illegally on or about January 1, 2000 to create a Web site "voting booth" to name the "most homosexual plainedge <sic> families." Petitioners further include a police department field report dated January 15, 2000 reporting a "dispute" between their son and other high school youths, and stating that their son had prior problems with a particular student who threatened to "kick [his] ass" and who had been told by school officials to stay away from their son. The field report does not specify the nature of the "dispute," and there is no indication otherwise in the record before me that petitioners’ son was in fact subjected to any physical harm as a result of the Internet chat incident.

Petitioners refused to return their son to school, and he was placed on home instruction. On February 1, 2000, M.G. formally withdrew her son from school, and indicated to school officials that her son was moving to another school district. Petitioners’ son attended school in the other district until the end of the 1999-2000 school year, but has returned to Plainedge for the 2000-01 school year. Respondent reports that petitioners’ son appears to have adjusted well, and there have been no incidents between him and other students. There was no disciplinary action taken against petitioners’ son as a result of the October 25, 1999 incident.

On July 19, 2000, petitioners sent a letter to respondent's superintendent, requesting that respondent reimburse them for the tuition they had incurred by sending their son to the other school district. Petitioners stated in the letter that home tutoring had initially been provided by respondent for their son’s safety "and until concrete measures could be set up to protect him." Respondent, however, terminated the home tutoring after 3 months and advised petitioners that their son had to return to school, although petitioners contend that no safety measures had been established. Petitioners asserted in the letter that the consequences of respondent's mishandling of the October 1999 incident had required them to send their son to another school, so respondent should reimburse them for that cost.

Respondent replied by letter dated July 31, 2000, stating that there was no legal basis for the school district to assume the cost of education for a student who is unilaterally placed by his or her parents in another school district. This appeal ensued.

Petitioners contend that respondent mishandled the entire Internet chat incident, provoked community fear and anger without justification, placed their family in danger due to retaliation and harassment, and failed to implement a safety plan to ensure that their son could return to school safely. Petitioners moved their son and his mother to another school district to live with relatives and incurred tuition expenses. Petitioners seek an order requiring reimbursement of tuition that they paid to the other school district for their son’s attendance during the 1999-2000 school year, appropriation of tuition moneys for the 2000-01 school year if necessary, immediate implementation of a safety plan for their son and an anti-bullying program for other students at respondent's school, and guidelines for respondent to handle such incidents in the future. Respondent denies that the situation was mishandled or that it is obligated to reimburse petitioners for tuition paid to another school district. Respondent asserts that it acted appropriately in response to the apparent threat, and also raises the procedural objection that the appeal is time barred.

I will address this procedural objection first. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioners appeal, interalia, the July 31, 2000 denial of their July 19, 2000 request for reimbursement of tuition. This appeal was initiated on August 30, 2000, within 30 days of the date of the denial letter. This portion of the appeal is therefore timely.

However, to the extent that petitioners assert an alleged failure to implement a safety plan or an anti-bullying plan, I must agree that the issues are time barred. The contentions relate to the time period of late January and early February 2000, when respondent terminated the home tutoring and directed that petitioners' son return to school. Respondent asserts that the student has adjusted well to reentry into its schools for the 2000-01 school year and there have been no incidents between him and other students, and petitioners do not refute this assertion. I therefore find that these remaining issues are time barred and/or rendered moot by the student’s subsequent reentry without incident. The Commissioner of Education will only decide matters in actual controversy and will not render a determination on a set of facts which no longer exist or which subsequent events have laid to rest (Appeal of Floramo, 39 Ed Dept Rep 389, Decision No. 14,269; Appeal of Swanson, 39 id. 312, Decision No. 14,247).

Petitioners’ request for reimbursement of tuition must be dismissed. 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 (Appeal of Jones, 39 Ed Dept Rep 555, Decision No. 14,309; Appeal of Ortiz, 34 id. 341, Decision No. 13,333; Appeal of Corbett, 34 id. 138, Decision No. 13,261). Although I do not question the sincerity of petitioners’ belief that their son would not be safe if he returned to respondent's high school, the record does not support their perception (seeAppeal of Jones, supra; Appeal of Corbett, supra. The school developed a plan to facilitate the student's return to school, which involved both petitioners’ son and the students he allegedly threatened. There is no indication that petitioners ever gave the school an opportunity during the 1999-2000 school year to complete its reentry plan and return the student to school, or to see if additional steps were necessary to ensure the student's safety once back in school.

There have apparently been no incidents since the student's reentry in September 2000. Petitioners allude to certain incidents of harassment but do not give dates or time periods, so it is unknown whether such incidents happened recently or date back to late 1999 and early 2000. In an appeal to the Commissioner, petitioner bears the burden of establishing all the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeal of Alexander, 39 Ed Dept Rep 265, Decision No. 14,232; Appeal of Trombley, 39 id. 115, Decision No. 14,189) and demonstrating a clear legal right to the relief requested (Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioners have not sustained their burden of establishing that respondent was so deficient in providing a safe educational environment that the deficiency was tantamount to a failure to provide an instructional program to the student, and thus are not entitled to a reimbursement of tuition.