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Decision No. 14,623

Appeal of TERRY FULLER, on behalf of the OUT-OF-DISTRICT PARENT COALITION and 129 Named Students, from action of the Board of Education of the Ellicottville Central School District relating to tuition rates.

Decision No. 14,623

(August 13, 2001)

Hodgson Russ LLP, attorneys for respondent, Karl W. Kristoff and Amy J. Vigneron, Esqs., of counsel

CATE, Acting Commissioner.--Petitioner, on behalf of an Out-of-District Parent Coalition and 129 named students, appeals the determination of the Board of Education of the Ellicottville Central School District ("respondent") to raise tuition rates for nonresident students. The appeal must be dismissed.

Respondent operates one school building for grades K-12. During the 2000-01 school year, the enrollment was 740 students. According to respondent, 18% of those students were nonresidents. In 1994, respondent enacted a policy permitting the acceptance of nonresident students and the imposition of tuition for such students' attendance. The policy also stated that nonresident families may be required to provide their own transportation. Until the 1997-98 school year, respondent permitted nonresident students to attend school in the district at no cost and provided them with transportation. In May 1997, respondent amended its policy and established a tuition fee for the upcoming school year for nonresident students in the amount of $200 per year for grades 7-12, and $150 for grades K-6, with a cap of $300 for families with more than three students. The policy also provided that the tuition rate would be reestablished each year, that nonresidents enrolled in special programs or receiving special services would be charged for those excess costs, and that nonresidents were responsible for their own transportation.

For the 1998-99 school year, tuition rates remained the same and despite its transportation policy, the district continued providing transportation to some nonresident students. Respondent continued to review its policy and sought legal advice on certain issues that had arisen. Respondent's attorneys advised that it could not cross into other school districts to pick up and drop off students without the written approval of those districts; it was violating its own policy by providing transportation to some nonresident students; it could not differentiate between families based on the number of attending children; and it could not charge excess costs for a student's participation in special programs.

Consequently, respondent resolved to reduce nonresident tuition to a standard rate of $100 for all nonresident students for the 1999-2000 school year and cease providing any transportation to nonresident students. For the 2000-01 school year, respondent raised the tuition rate to $105. Respondent states it became aware of public dissatisfaction with its nonresident policy sometime during 2000. Respondent asserts that it then reviewed various administration reports and held numerous discussions on the issue at public meetings. Additionally, the district mailed a community survey to all district taxpayers and families of nonresident students during the fall of 2000 and also conducted a community phone survey. The results of these surveys were published in the November 2000 and February 2001 district newsletters. On February 6, 2001, respondent voted to increase nonresident tuition rates incrementally for three years: to $250 for the 2001-02 school year; $300 for 2002-03; and $375 for 2003-04. This appeal ensued.

Petitioner claims respondent recruited nonresident students years ago and pledged that tuition would not be an issue. He requests that respondent be prohibited from charging tuition, that the named students be grandfathered in with no tuition, and that bus transportation be reinstated.

Respondent asserts that it properly exercised its discretion in establishing and raising tuition rates, and that the petition fails to state a claim upon which relief may be granted.

I must first address several procedural issues. Petitioner raises for the first time in its reply the processes followed at respondent's meetings. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add exhibits that should have been in the petition (Appeal of Marquette, et al., 40 Ed Dept Rep ___, Decision No. 14,568; Appeal of Balen, 40 id. ___, Decision No. 14,532). Although I will accept petitioner's reply, I will not consider those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Additionally, Public Officers Law "107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Lilker, 40 Ed Dept Rep ___, Decision No. 14,486; Appeal of Instone-Noonan, 39 id. 413, Decision No. 14,275).

Although respondent did not raise the objection, I am compelled to note significant problems relating to petitioner's standing to bring this appeal. First, he claims to act on behalf of an Out-of-District Parent Coalition. The Coalition, as an unincorporated association, lacks standing to bring an appeal under Education Law "310 (Appeal of Citizens for Responsible Fiscal and Educational Policy, et al., 40 Ed Dept Rep ___, Decision No. 14,489). Insofar as petitioner purports to represent the unincorporated association, he also lacks standing (Application of the Coalition for the Empowerment of People of African Ancestry, 39 Ed Dept Rep 161, Decision No. 14,202; Appeal of The Plaza School Playground Committee, 35 id. 83, Decision No. 13,473).

Secondly, petitioner attempts to bring this appeal on behalf of 129 named students. However, he presents no evidence that he is authorized to act on behalf of those students. Indeed, there is contrary evidence that at least one family was never consulted by petitioner and in fact, disagrees with petitioner's contentions. In addition, respondent states that several of the listed children have since moved into the district, one no longer attends school in the district and several are preschoolers. While five students have the same last name as petitioner and may possibly be his children, he makes no such assertion. To the extent petitioner is the father of those five children, he would have standing only as to them, but not as to the other 124 students.

Furthermore, to the extent petitioner attempts to bring this appeal on behalf of all out-of-district students, he has failed to meet the requirements for a class action. An appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2; Appeal of Satler, 40 Ed Dept Rep ___, Decision No. 14,563; Appeal of a Student with a Disability, 39 id. 1, Decision No. 14,154). Petitioner must set forth the number of individuals he seeks to represent (Appeal of a Student with a Disability, supra; Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088) and must show that all questions of law and fact would be common to all members of the class (Appeal of a Student with a Disability, supra; Appeal of Donnelly, 33 Ed Dept Rep 362, Decision No. 13,079). Here, while the number of prospective members of the class may have been set forth, petitioner has not shown that all questions of fact are common to all members of the alleged class.

Notwithstanding the standing issues, the appeal must be dismissed on the 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.

The purpose of this statute is to limit the obligation of school districts to provide tuition-free education and related services to students whose parents or legal guardians reside within the district (Appeal of Pierre, 40 Ed Dept Rep ___, Decision No. 14,551; Appeal of Epps, 39 id. 778, Decision No. 14,377; Appeal of Dimbo, 38 id. 233, Decision No. 14,023). This obligation does not extend to nonresidents without the express consent of the board of education, pursuant to Education Law "3202(2), which provides that:

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.

Accordingly, respondent unequivocally has the authority to determine if it will accept nonresident students, and to determine the terms under which it will do so, and did not act arbitrarily or abuse its discretion in establishing a tuition rate policy.

While Education Law "3635(1)(a) requires school districts to provide transportation to and from school for all resident children who need it because of the distance to their school or because transportation would be in their best interest, respondent is not required to provide transportation for nonresident students (Matter of Empson, 19 Ed Dept Rep 139, Decision No. 10,067).

Petitioner also maintains that because he relied on respondent's pledge during its "recruitment" of nonresident students that tuition would not be an issue, current nonresident students should be grandfathered in with no tuition, essentially estopping respondent from carrying out its tuition policy. Petitioner submits no evidence of such recruitment or pledge. Regardless, even if he had, equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, 71 NY2d 274; Appeal of Holzer, et al., 37 Ed Dept Rep 549, Decision No. 13,924; Appeal of Prospero, 37 id. 62, Decision No. 13,804).

I have considered petitioner's remaining arguments and find them without merit.