Appeal of Cassandra Finnis-Palen, on behalf of her daughter KATHERINE E. PALEN, from action of the Board of Education of the Margaretville Central School District regarding class scheduling.

Decision No. 15,759

(June 5, 2008

Hogan, Sarzynski, Lynch, Surowka & DeWind, LLP, attorneys for respondent, Amy J. Lucenti, Esq., of counsel

Ahearn, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Margaretville Central School District (“respondent”) to reschedule certain high school classes.  The appeal must be dismissed.

Petitioner’s daughter, Katherine, is a 10th grade student at respondent’s high school.  Before the start of the 2007-2008 school year, petitioner received a copy of Katherine’s class schedule which did not include band or chorus.  Petitioner met with the high school guidance counselor and was advised that both band and chorus and Katherine’s math class had been scheduled at the same time.  Petitioner contacted respondent’s superintendent and the high school principal and requested that Katherine’s schedule be changed.  The request was denied.  On September 19, 2007, petitioner presented her complaint to respondent.  This appeal ensued.

Petitioner asserts that all students should have the opportunity to participate in respondent’s music program, and asks that I change the class schedule at respondent’s high school so that her daughter can enroll in band and chorus.  Petitioner also asks that I ensure that all future schedules “reflect equal treatment under law for all students” and that no student be denied the opportunity to participate in the high school’s music program if they so choose.

Respondent asserts that its staff attempted to accommodate petitioner’s request, but that the current class schedule resulted in the least amount of schedule conflicts for all its students.  Respondent, therefore, argues that its decision to not change its high school class schedule was reasonable and should be upheld.

Before reaching the merits I must address two procedural issues, starting with petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth 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 assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent asserts that the appeal is untimely because more than 30 days elapsed between the time that petitioner received her daughter’s class schedule and when she commenced this appeal.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of C.F., 44 Ed Dept Rep 109, Decision No. 15,113; Appeal of O.W., 43 id. 150, Decision No. 14,949).

It appears from the record that petitioner contacted the district about this matter in a timely fashion, and that after her requests were denied by the administration she presented her complaint to respondent on September 19, 2007.  While it is not clear from the record when, or if, respondent notified petitioner of its determination in this matter, such notification could not have occurred prior to respondent’s meeting on September 19, 2007.  Accordingly, I decline to dismiss the appeal, which was commenced on October 18, 2007, as untimely.

Turning to the merits, Education Law §§1709(33) and 1804(1) confer upon a central school district board of education the authority and responsibility to manage the affairs of the district.  Inherent in this authority is the power to make decisions regarding the scheduling of classes.  Absent a clear showing that a board’s exercise of its authority is arbitrary, capricious or unreasonable, the Commissioner will not substitute his judgment for that of the board (seeAppeal of Frost, 46 Ed Dept Rep 344, Decision No. 15,528; Appeal of Baisch, 40 id. 405, Decision No. 14,512).  Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Based upon the record before me I find that petitioner has not met her burden.  There is no indication in the record that respondent’s determination negatively affected Katherine’s ability to earn sufficient credits for graduation.  Indeed, respondent avers that Katherine has already received the one credit in music that is necessary for graduation.  Moreover, there is no showing that an alternative class schedule would result in fewer conflicts and disruptions for all students.  Under the circumstances, therefore, I am unable to find that respondent or its staff acted in an arbitrary, capricious or unreasonable manner.

THE APPEAL IS DISMISSED.

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