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Decision No. 17,582

Appeal of a STUDENT WITH A DISABILITY, by his legal guardians, from action of the Board of Education of the Vestal Central School District regarding nonresident student enrollment.

Decision No. 17,582

(February 4, 2019)

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Wendy K. DeWind, Esq., of counsel

ELIA., Commissioner.--Petitioners, the mother and grandmother of a student with a disability (“the student”)[1], challenge the determination of the Board of Education of the Vestal Central School District (“respondent” or “district”) to deny the student admission to its schools as a nonresident student.  The appeal must be dismissed.

The student attended respondent’s district as a nonresident student during the 2015-2016, 2016-2017, and 2017-2018 school years.  The record indicates that the student has been diagnosed with a neuropsychiatric disorder for which he received a Section 504 Accommodation Plan from respondent district.  Prior to the 2018-2019 school year, respondent referred the student to the committee on special education (“CSE”) of the student’s school district of residence.  On June 19, 2018, the CSE of the school district of residence met and issued an individualized education program (“IEP”) for the student.

On or about August 20, 2018, respondent received a request from petitioners seeking to enroll the student in respondent’s schools as a tuition-paying, nonresident student for the 2018-2019 school year.  On or about August 30, 2018, respondent denied petitioners’ enrollment request.  This appeal ensued.  The record further indicates that the student, now in third grade, has been attending school in the student’s district of residence since the start of the 2018-2019 school year.

Petitioners seek: (1) “[t]o file a formal complaint of discrimination against [the student] by [respondent] District,” and (2) “the opportunity to appear before the Commissioner and present an oral argument to document  discrimination by [respondent] District Principal and Staff and its impact on [the student’s] academic success, and additionally the broader discrimination and lack of awareness of [the student’s disorder] in school age children.”

Respondent asserts that it followed its nonresident student policy in denying admission to the student for the 2018-2019 school year.  Specifically, respondent asserts that “the decision was based on the student’s poor attendance, disruptiveness to the school environment, and the large influx of students to the [school the student had previously attended in respondent’s district].”

Respondent further contends that I should reject two sets of documents submitted by petitioners subsequent to the filing of the petition.  The first such document, titled “Verified Response,” appears to be petitioners’ reply to respondent’s answer.

Respondent asserts that the reply should be rejected as untimely.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  However, Commissioner’s regulation §276.3 permits the Commissioner to allow an extension of time to answer the petition or reply to an answer upon good cause shown and upon such terms and conditions as the Commissioner may specify (8 NYCRR §276.3).  Respondent’s answer was served by mail on October 29, 2018.  Accordingly, petitioners’ reply was due by November 12, 2018; it was not, however, served until November 13, 2018.  Although petitioners failed to request an extension of time to reply in accordance with §276.3 of the Commissioner’s regulations, I will accept their reply in light of the fact that they are proceeding pro se; that the delay of a single day was de minimis; and that there is no evidence that respondent was prejudiced by the delay (Appeal of Henderson, 57 Ed Dept Rep, Decision No. 17,377; Appeal of Lombardo, 37 id. 721, Decision No. 13,967).

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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 also objects to a cover letter and attached exhibits served by petitioners on or about December 4, 2018, titled, “Request to file additional Affidavits and Exhibits and Support documents Sect 276.5.”  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  A party seeking to file affidavits, exhibits and other supporting papers pursuant to §276.5 of the Commissioner’s regulations shall submit an application to my Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]).  Petitioners do not explain why these materials are necessary, nor did they request permission to submit the additional materials in accordance with 8 NYCRR §276.5.  In addition, I have reviewed the submission and find that it contains new factual or legal assertions that were not raised in the pleadings.  For these reasons, I will not accept the additional documents for filing, and they have not been considered.

While I am rejecting petitioners’ request that I accept additional affidavits, exhibits and other supporting papers, I do note that their cover letter seeking to introduce such documents includes the following language: “We would like to again make the point that that we do not seek a reversal of [the district’s] decision to not admit [the child] as a student in their district.”

A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  As noted above, petitioners do not request that I overturn respondent’s decision to deny the student admission and direct that respondent admit the student to its schools as a nonresident student.  While the petition does contain a demand for relief (i.e., petitioners seek to file a discrimination claim against the district and to present an oral argument to detail the discrimination to which they allege the student and other students have been subjected by the district), I lack the authority to grant such relief.

Petitioners in this appeal essentially seek an advisory opinion or declaratory ruling that respondent engaged in discrimination.  No relief is sought with regard to the student’s education in the 2018-2019 school year.  It is, however, well-established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Accordingly, the appeal must be dismissed.

To the extent petitioners attempt to allege that respondent discriminated against the student based on disability in violation of the student’s rights under §504, I note that enforcement of §504 lies with the federal courts, the U.S. Department of Justice, and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,578; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806).




[1] While petitioners assert that the student does not have a disability, the record indicates that, at petitioners’ request, the student received from respondent certain accommodations under Section 504 of the Rehabilitation Act, 29 U.S.C. §794 (i.e., a “Section 504 Accommodation Plan”).  The record further indicates that in June 2018 the Committee on Special Education of the student’s district of residence, upon referral from respondent, determined that the student is a student with a disability.