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Decision No. 17,645

Appeal of M.M., on behalf of his daughter E.M., from action of the Board of Education of the Rush-Henrietta Central School District regarding school assignment.

Decision No. 17,645

(June 5, 2019)

DesMarteau & Beale, attorneys for respondent, George DesMarteau, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Rush-Henrietta Central School District (“respondent”) denying a request for his child (“the student”) to attend a school outside of the attendance zone in which petitioner and the student reside.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner and the student have resided at an address within respondent’s district and within the attendance zone for respondent’s Roth Junior High School (“Roth”).  According to the record, the student attended Roth during the 2017-2018 school year.

Respondent’s policy 5110 (“School Attendance Area”) provides that students shall be assigned to the school which they are zoned to attend by virtue of their residence.  However, the policy indicates that a student “may be assigned to a different school which has available space in [a student’s] grade level” if “student enrollment is unusually high at a grade level [] with all sections filled” to capacity.  In those circumstances, according to the policy, the district evaluates requests pursuant to the criteria in regulation 5110-R.  As relevant to this appeal, regulation 5110-R provides that:

Whenever extenuating circumstances make the assignment of a new student to a school other than his or her home school [] a placement deemed inappropriate by the parents, they may appeal their child’s school assignment to the superintendent of schools.

Additionally, board policy 5154 provides that “[f]actors such as the student’s intellectual, social, and emotional needs shall be among the criteria considered essential” for making decisions concerning student placement.

In or about April 2018, petitioner requested that the student be allowed to attend Burger Junior High School (“Burger”), which is outside of the student’s attendance zone, for the 2018-2019 school year.  This request was denied by the superintendent.  Petitioner appealed this determination to respondent which, in a letter dated June 28, 2018, denied petitioner’s appeal.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 29, 2018.

Petitioner contends that respondent’s denial of his request was arbitrary and capricious.  In the petition, petitioner describes several negative social and environmental interactions that his daughter allegedly experienced at Roth during the 2017-2018 school year.  Petitioner seeks a determination that respondent’s determination was arbitrary and capricious.

Respondent argues that the appeal must be dismissed as untimely.  Respondent also objects to new allegations which petitioner presents for the first time on appeal and argues that certain “improperly pleaded” allegations should not be considered on appeal.  Respondent further asserts that its determination was reasonable and rendered in accordance with board policy.

I must first address the procedural issues.  Respondent objects to allegations in the petition which, it contends, petitioner did not raise below.  However, the record is not entirely clear as to what allegations or materials petitioner presented to respondent in the first instance.  In any event, respondent has had ample opportunity to review and respond to the allegations petitioner has raised on appeal (see Appeal of Strickland, 56 Ed Dept Rep, Decision No. 17,023).  Accordingly, I decline to dismiss the appeal on this basis.

Respondent also contends that an attachment to the petition contains matters which were “improperly pleaded” because the allegations contain “duplicated numbers and allegations not separately pleaded.”  Commissioner’s regulation §275.3(c) provides that “[a]ll pleadings and affidavits shall be submitted in typewritten form, double spaced, on white paper 8 1/2 by 11 inches in size, and shall set forth the allegations of the parties in numbered paragraphs.”  While petitioner submitted a separate statement which, as respondent indicates, contains duplicative numbered paragraphs, petitioner otherwise complied with the practice regulations and I decline to disregard such allegations.  I also decline to disregard those numbered paragraphs which contain more than one assertion.  Petitioner is proceeding pro se, and a liberal interpretation of the rules is appropriate where a petitioner is pro se and there is no prejudice to respondent (Appeal of Smith, 40 Ed Dept Rep 172, Decision No. 14,452).  

Turning to respondent’s challenge to the timeliness of the 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  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 G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Here, respondent denied petitioner’s request in a letter from the board president dated June 28, 2018.  There is no evidence in the record of the date of petitioner’s actual receipt of the determination letter; thus, affording the usual five days for mailing, excluding Sundays and holidays, the petition was required to be served by August 4, 2018 to be timely.  The appeal was not commenced until August 10, 2018 and, thus, is untimely.

In the petition, petitioner admits that the appeal is untimely but requests that I excuse such delay due to a number of extenuating personal and practical circumstances (see 8 NYCRR §275.16).  Upon review of petitioner’s proffered reasons, I cannot find that petitioner has demonstrated good cause for the delay.  Petitioner asserts that he had difficulty finding anyone willing to serve papers on the school board and that trying to serve board members who do not have offices at the school is difficult.  However, section 275.8(a) of the Commissioner’s regulations provides in relevant part:

If a school district is named as a party respondent, service upon such school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Therefore, while petitioner could have served a board member, he also could have effectuated service upon the district clerk or the superintendent.  Petitioner has not provided any proof of any actual prior attempts to serve the petition or provided any explanation of why the person who ultimately served the petition could not do so until August 10, 2018.

While I sympathize with petitioner, his proffered reasons for the delay relate primarily to his unfamiliarity with the appeal process and, 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 Funderburke-Ivey, 57 Ed Dept Rep, Decision No. 17,241; Appeal of Stieffenhofer, 48 id. 231, Decision No. 15,846).  Upon review of petitioner’s reasons, I find no unusual circumstances that would excuse the delay and the appeal must be dismissed as untimely.

Even if the appeal was not dismissed as untimely, it would be dismissed on the merits.  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. In such cases, a board's discretion is broad (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of People Against the Consolidation of Elementary Schools, 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey and Maxwell, 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Upon review of the record, I cannot conclude that respondent’s determination was arbitrary or capricious.  Respondent’s policy 5110-R indicates that the district may grant a parental request to attend a school outside of a student’s attendance zone based on “extenuating circumstances.”[1]  Respondent’s assistant superintendent for student and family services explains in an affidavit that, when considering such requests, the district “seek[s] input from the family and any evidence that may exist to support the [parent’s] concerns or shed light on the difficulties the student is facing ....”  She further explains that while the district “give[s] weight to a parent’s observations,” requests for students whose circumstances have been deemed sufficiently “extenuating” to warrant an exemption are typically accompanied by observations by district or private social workers, counselors, or mental health professionals.

Here, respondent’s board president explains in an affidavit that, in considering petitioner’s request, respondent considered evidence that the student was academically and socially successful at Roth.  In an email to petitioner dated June 22, 2018, the school counselor indicated that she had only seen the student a few times in her office and did “not have an on-going therapeutic relationship” with her.  The school counselor stated that the issues she discussed with the student were “issues that a 7th grader would normally encounter,” and that the student “did not present to me issues that would generally compromise her school functioning, attendance, or well-being.”  Additionally, in an email dated June 25, 2018, the principal of Roth stated that “there is no evidence that there is a negative impact on th[e] student’s academic or social emotional well being.”

In its June 28, 2018 written decision, respondent stated that it “fully recognized and respected [petitioner’s] sincere belief” that the transfer was in the student’s best interest.  However, respondent found “no basis to conclude that [the student] was experiencing the degree of emotional distress that would justify such a transfer.”  Respondent also stated that the information from administrators at Roth “indicate[d] that [the student] is a wonderful young lady contending with issues common to students during their junior high school years and doing so with apparent success.”  Respondent further “noted” petitioner’s concerns with the school environment at Roth and indicated that it would “be monitoring the efforts taken to address any needed changes.”  Respondent also stated that Roth’s “Mental Health Team” was available to support the student.  The above evidence shows that respondent amply explained its reasons for denying petitioner’s request, and there is no evidence on this record that respondent acted unreasonably.

On appeal, petitioner submits a letter dated July 18, 2018 from the student’s pediatrician which, he argues, demonstrates that respondent’s determination was arbitrary or capricious.  In the letter, the pediatrician notes that the student “had a difficult time this past year [at Roth]” and that “[s]he believes the school environment at Roth is the problem, with bullying and sexual harassment.”  The pediatrician further asserted that it was her belief that the student “would be much happier and more productive at Burger Middle School” and “highly recommend[ed]” that respondent allow the student to attend Burger.  Although this letter was submitted after respondent rendered its determination in this matter on June 28, 2018, the record reveals that respondent subsequently reconvened on August 14, 2018 and, after considering the pediatrician’s letter, declined to reconsider and alter its original determination.

The pediatrician’s July 18, 2018 letter does not render respondent’s determination arbitrary or capricious.  As indicated above, respondent explains on appeal that, typically, a student is considered to present with “extenuating circumstances” that would justify transfer where his or her academic, social or health concerns have been observed by school or outside professionals.  Here, school personnel found, as the principal of Roth stated, that there was “no evidence that there [was] a negative impact on th[e] student’s academic or social emotional well-being.”

I acknowledge that the pediatrician indicated in her letter that the student “had a difficult time this past year [at Roth]” and that the student “believe[d] the school environment at Roth is the problem, with bullying and sexual harassment.” While these statements are concerning, they are conclusory in nature and did not explain what specific incidents or characteristics gave rise to the student’s conclusion that the “school environment at Roth [was] the problem.”  Moreover, the pediatrician did not indicate the source of her information; although it presumably came from petitioner or the student, there is no basis in the record upon which to make this assumption (or to determine whether petitioner, the student, or both voiced such concerns).

In the petition, petitioner identifies four incidents involving his daughter which allegedly occurred while she was at Roth: (1) a male student “kept inappropriately touching her” and refused to stop in the face of repeated admonitions to do so (petitioner also states that another student complained on his daughter’s behalf about the male student); (2) “a student trying to goad [the student] in to a fight took a sharpie and drew on [her] shirt”; (3) a student “was defaming” the student by “calling her a racist”; and (4) in response to the student informing a male student that a comment was “not nice,” the male student cursed and called her two offensive names.  However, petitioner has submitted no proof of such allegations, such as an affidavit from the student, or any corroborating evidence.  Thus, while petitioner’s allegations are concerning, he has not met his burden of proving that such incidents occurred.

Petitioner’s remaining allegations in the petition concern the general school environment at Roth; for example, that “there was a fight in the girls[’] lavatory” and “[c]lasses are consistently disrupted by students treating the faculty and staff in a disrespectful manner.”  Petitioner asserts that the student witnessed several such incidents.  As indicated above, petitioner has produced no proof of such assertions and I cannot find that he has established that such incidents occurred or are commonplace at Roth.  Moreover, even assuming, arguendo, that some or all of petitioner’s allegations were true, I cannot find that an unfavorable school climate, in and of itself, would compel respondent to transfer petitioner’s daughter based upon the “extenuating circumstances” standard set forth in respondent’s board policy 5110-R.

Given the allegations raised by petitioner on appeal, I remind petitioner that, if at any time he feels his daughter has been the victim of bullying or harassment, he may request that respondent investigate and address all such concerns pursuant to the Dignity for All Students Act (“DASA”), Education Law §13.  I remind respondent that when it receives an oral or written report of an incident that involves impermissible harassment, bullying or discrimination, such as, for example, the incident of inappropriate touching alleged by petitioner, it is obligated to investigate and follow the procedures prescribed by Education Law §13.

Moreover, given the nature of the allegations raised in this appeal, I am directing my Office of Student Support Services to provide guidance and technical assistance to the district in order to ensure that the district appropriately investigates all incidents of harassment and bullying.

I have considered the parties’ remaining contentions and find them to be without merit.  However, I note that my decision in this case is based on the circumstances presented in this record and should not be construed as minimizing the gravity of the incidents alleged by petitioner or the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.




[1] It is unclear whether the circumstances described in policy 5110 – namely, if “student enrollment is unusually high at a grade level [] with all sections filled to capacity” and another school has available space – are a condition precedent to a parent’s request for a student to attend a school outside of his or her attendance zone based upon extenuating circumstances.  While the parties have not addressed this issue on appeal, I encourage respondent to clarify this issue in its written policies.