Appeal of Y.M., on behalf of his son A.M., from action of the Board of Education of the Merrick Union Free School District regarding residency.

Decision No. 16,862

(January 7, 2016)

Ingerman Smith, L.L.P., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Merrick Union Free School District (“respondent”) that his son, A.M., is not entitled to attend a school outside the attendance zone in which he resides.  The appeal must be dismissed. 

The record indicates that respondent has established attendance zones for all schools in its district, which is composed of three elementary schools, the Birch school (“Birch school”), Roland A. Chatterton School (“Chatterton school”) and Norman J. Levy Lakeside School.  Upon completion of sixth grade, students in the district attend the Bellmore-Merrick Central High School District.  Under respondent’s policy, students attend school in their attendance zone, “with such individual exceptions as may be made in the best interests of the student and/or the school.  Such exceptions may only be made with the approval of respondent.”  In its verified answer, respondent explains that it is the district’s practice to assign children to their neighborhood school in an effort to encourage and promote children’s interrelationships and strengthen community ties and that students are assigned to attend the school in their neighborhood except in cases where students’ special education needs cannot be addressed by the neighborhood school.  

Based on respondent’s attendance zones and policy, A.M. was assigned to attend the Chatterton school when he began kindergarten in the 2014-2015 school year. The record indicates that, on or about February 3, 2014, petitioner requested[1] that A.M. be permitted to attend the Birch school, a non-neighborhood school, where A.M.’s brother, a student with a disability, was currently enrolled.  In the petition, petitioner states that “[A.M.’s brother’s] placement [at the Birch school] was not our choice and was imposed on us due to Chatterton’s lack of appropriate program” and “[the brothers] are very close and do everything together.  Any disruption to [their] relationship will be highly damaging to [A.M.’s brother’s] progress.” 

Respondent discussed and denied petitioner’s request at its board meeting on or about February 11, 2014.  By letter dated February 14, 2014, the superintendent notified petitioner that his request was denied and that A.M. was scheduled to attend the Chatterton school for the 2014-2015 school year.  The record indicates that petitioner and his wife met with the superintendent on or about February 27, 2014 to discuss their request. 

Thereafter, on or about March 4, 2014, petitioner emailed respondent again requesting that A.M. be assigned to the Birch School.[2]  By letter from the district clerk dated March 17, 2014, petitioner was informed that the board had reviewed his March 4 email and his “earlier letter” and that, “as indicated in an earlier letter sent to you from [the superintendent] on the Boards [sic] behalf, your request is not approved.” 

The record indicates that petitioner submitted a third request to respondent on or about May 17, 2014[3] and that he addressed respondent at its June 10, 2014 meeting.  By letter dated June 18, 2014, respondent advised petitioner that all previous requests were in fact denied. This appeal ensued.  Petitioner’s request for interim relief was denied on July 24, 2014.

Petitioner alleges that A.M.’s attendance at an elementary school different from that of his brother is not in the best interest of the students and will cause an extreme hardship.  Petitioner contends that his appeal is timely because he was engaging in continuous negotiations with respondent relative to A.M.’s placement in respondent’s schools.  

Respondent contends that its decision to deny petitioner’s request for a variance from A.M.’s attendance zone was not arbitrary, capricious or unreasonable. Respondent also contends that the petition is untimely.

I must first address several procedural issues.  In addition to submitting a reply to respondent’s answer in this matter, petitioner also submits a response to respondent’s affirmation in opposition to petitioner’s request for interim relief (“opposition papers”).  Petitioner’s response to respondent’s opposition papers is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817; Appeal of Gordinier, 52 id., Decision No. 16,433).  However, I note that petitioner appears pro se in this appeal and respondent does not object to this submission.  Where petitioner is not represented by counsel, a liberal interpretation of the rules governing appeals to the Commissioner pursuant to Education Law §310 is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  In the absence of any demonstrable prejudice to respondent, I accept petitioner’s response to respondent’s opposition papers as in the nature of a reply to respondent’s answer for purposes of §§275.3 and 275.14 of the Commissioner’s regulations, to the extent it is responsive to new material or affirmative defenses set forth in respondent’s pleadings.

However, with respect to both the response and the reply, I note that 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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed petitioner’s response and 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 respondent’s pleadings.

Respondent asserts that the appeal is untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). 

Respondent asserts that petitioner was required to commence this appeal within 30 days of the date of its February 14, 2014 letter advising petitioner that A.M. would not be placed in the Birch school but would instead be required to attend the Chatterton school, and thus, petitioner had until March 14, 2014, to commence this appeal. Petitioner’s affidavit of personal service states that the petition was not served until July 16, 2014.

Here, petitioner argues that respondent’s June 18, 2014 letter was its final action and that all correspondence prior to this letter was part of ongoing negotiations between petitioner and respondent. Therefore, petitioner reasons that the 30-day time period commenced on June 18, 2014. I disagree.  Respondent’s February 14, 2014 letter clearly and unequivocally denied petitioner’s request for A.M.’s placement in the Birch school and petitioner’s subsequent requests were therefore requests for reconsideration.  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Although respondent’s June 18 letter states that petitioner’s request was denied “[a]fter further consideration,” the letter also reiterated, similar to the March 17, 2014 letter, that the board had reviewed, considered and denied all of petitioner’s requests for A.M.’s placement at the Birch school. 

To the extent petitioner claims that his delay in commencing this appeal was caused by his ignorance of the appeals process, I note that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  On this record, I find no unusual circumstances sufficient to excuse petitioner’s delay in this instance. Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Pursuant to Education Law §1709 (3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Ed., 27 NY2d 333; Appeal of Giovanniello, 44 Ed Dept Rep 17, Decision No. 15,081; Appeal of D.D., 38 id. 4, Decision No. 13,970).  A board of education has broad discretion regarding the assignment of students to schools (Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert den 382 US 905; Appeal of Teel, 33 Ed Dept Rep 309, Decision No. 13,058).  Therefore, a board’s decision regarding school assignments will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, et al. v. Board of Ed., 27 NY2d 333; Appeal of D.D., 38 Ed Dept Rep 4, Decision No. 13,970; Appeal of Cullen, 32 id. 179, Decision No. 12,798). Petitioner bears the burden of demonstrating that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of Giovanniello, 44 Ed Dept Rep 17, Decision No. 15,081).  I find that petitioner has failed to meet that burden of proof.

In this case, petitioner seeks to have A.M. attend the same elementary school attended by his brother, which is outside his attendance zone.  Respondent’s policy states that the primary considerations that govern the determination of its school attendance zones include the “educational opportunity afforded students in all schools; efficient and educationally effective use of the capacities of each school; and geographic location of each school in its relationship to the surrounding student population.”  In its verified answer, respondent explains that it is the district’s practice not to place students in a non-neighborhood school “simply to follow their special education sibling as a special education student’s placement can change based on the recommendation of the Committee on Special Education.  Placing a special education student’s general education sibling in his or her neighborhood schools guarantees continuity for the general education student.” 

While I am sympathetic to petitioner’s desire that A.M. attend the same school as his brother, there is no legal basis upon which to grant the relief petitioner seeks (see Appeal of Kershaw, 37 Ed Dept Rep 186, Decision No. 13,837; Appeal of Barbara D. and James D., 34 id. 118, Decision No. 13,252).  I conclude that respondent’s decision in this matter is not arbitrary, capricious nor contrary to sound educational policy and, therefore, I will not disturb it.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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