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Decision No. 17,711

Appeal of B.A., on behalf of her daughter S.A., from action of the Board of Education of the Valley Stream Central High School District regarding attendance zones.

Decision No. 17,711

(July 25, 2019)

Guercio & Guercio, LLP, attorneys for petitioner, Christopher W. Shishko, Esq., of counsel

ELIA., Commissioner.--Petitioner challenges a determination of the Board of Education of the Valley Stream Central High School District (“respondent”) which denied a request for her daughter (“the student”) to attend a school outside of the attendance zone in which petitioner and the student reside.  The appeal must be dismissed.

Respondent’s district includes one junior high school (Memorial Junior High School) for grades seven through nine and three high schools:  North High School and South High School, both of which educate students in grades seven through twelve, and Central High School, which educates students in grades nine through twelve.

At all times relevant to this appeal, petitioner and the student have resided in respondent’s district within the attendance zone for Memorial Junior High School and Central High School.

     Respondent’s policy 5110, entitled “School Attendance Areas,” outlines the process by which parents or persons in parental relation may request that students be permitted to attend a school outside of their attendance zones.  The policy states that “it is the intent of the Board that students zoned for a school in the district may request transfers to another school in the district.”  According to the policy, all such requests must be made in writing and directed to the superintendent.  The policy further states that “[a] request for a waiver may only be made when the student is first eligible to attend school in the Valley Stream High School District...” and that the district must receive requests from incoming seventh graders from the “Valley Stream elementary districts” by February 15 of the students’ sixth grade year.  For students registering from “outside the Valley Stream districts,” such requests must be made within 45 days of registration.  The policy further outlines detailed procedures which the superintendent must follow “to approve waivers without exceeding the functional capacity of a building,” including a lottery selection procedure.  Finally, the policy notes that parents may appeal a superintendent’s determination regarding a transfer request to respondent “within 10 days,” but specifies that such appeals “shall be limited to the question of whether the lottery selection procedure has been followed.”[1]

By letter dated December 2018, respondent’s superintendent notified parents of incoming seventh graders of the policy and procedures with regard to requesting a waiver to attend a secondary school other than that required by policy 5110, respondent’s policy regarding school attendance zones.  The letter informed parents that the deadline for submission of such waiver requests for the 2019-2020 school year was February 15, 2019, and that a waiver request would be considered only at the time the student is first eligible to attend the Valley Stream High School District.

Petitioner alleges that she mailed a waiver form requesting that the student be registered at South High School to respondent on January 25, 2019.  Respondent avers that it never received the waiver form and states that it has a formalized procedure for processing waiver forms:  as stated both in policy 5110 and on the waiver form itself, the waiver forms must be submitted to the office of the superintendent; at that time, the secretary to the superintendent stamps and logs each waiver form as it is received.  Respondent has no record of receiving a copy of petitioner’s waiver form prior to the February 15, 2019 deadline.

On or about March 14, 2019, petitioner called the district-wide director of guidance and chief information officer to inquire about when waiver confirmations would be received and was informed that respondent had not received a waiver form regarding the student.  Petitioner emailed a copy of a completed waiver form, which was then forwarded to the office of the superintendent.  Also in March 2019, petitioner was sent what appears to be a form letter from an interim assistant principal advising them that the student would enter South High school in the fall of 2019 and describing the transition process for sixth grade students.

The record indicates that, because it had not received a waiver form from petitioner by the February 15, 2019 deadline, respondent registered the student to attend the school in her attendance zone.  When petitioner contacted respondent on March 25, 2019 to inquire about the status of the waiver request, she was told that because no waiver form had been received by the deadline, the student would attend the school in her attendance zone.  This appeal ensued.

Petitioner argues that she submitted a timely waiver request which was mishandled by respondent and requests that I direct respondent to register the student at South High School, the requested out-of-zone school.

Respondent argues that petitioner did not comply with the procedure laid out by policy 5110 and that the denial of petitioner’s waiver request had a rational basis and was consistent with sound educational policy.

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 (Education Law §§1709[3] and [33], and 1903).  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 Khan, 58 Ed Dept Rep, Decision No. 17,437; Appeal of Fettinger, et al., 47 id. 4, Decision No. 15,604).

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 the superintendent’s denial of petitioner’s waiver request was arbitrary or capricious.  In December 2018, petitioner was notified of the policies and procedures regarding transfer requests made in accordance with policy 5110, including the deadline for submitting such requests, the fact that a waiver request must be submitted to the office of the superintendent, and the fact that a transfer request may be made only when a student is first eligible to attend school in the Valley Stream Central High School District.  Petitioner’s daughter was first eligible to attend respondent’s school district in the 2019-2020 school year, and her waiver request was due by February 15, 2019.  While petitioner has alleged that she mailed the required waiver form “to Valley Stream Central High School District” on or about January 25, 2019, she does not claim that the form was mailed to the superintendent’s office, even though policy 5110 requires that waiver requests be made in writing to the superintendent.

Respondent, on the other hand, has submitted affidavits from the superintendent and the secretary to the superintendent attesting that the superintendent’s office has no record of receiving the waiver form by the deadline.  According to the record, the first time respondent saw petitioner’s waiver form was after an email exchange on March 14, 2019, well after the deadline.  Moreover, the superintendent’s secretary attests that in March 2019, prior to the March 14, 2019 email exchange, petitioner’s husband told her that he had not filled out the waiver request because he was waiting for a tour of South High School.  Petitioner did not submit a reply and has not provided any evidence to rebut the secretary’s assertion, which contradicts petitioner’s allegation that a timely waiver request was submitted in January 2019.

The fact that an interim assistant principal sent a letter in March 2019 erroneously informing petitioner that her daughter would be attending South High School does not establish that a timely waiver request was submitted to the superintendent.  As respondent contends, only the superintendent is authorized to grant waivers under policy 5110, and on this record petitioner has not proven that her waiver request was timely submitted to the superintendent.  In addition, the fact that petitioner received a letter from the interim assistant principal advising her that the student would be attending South High School does not estop respondent from requiring petitioner’s daughter to attend school within her attendance zone.  Equitable estoppel does not apply against a government subdivision except in limited circumstances not applicable here (Parkview Assoc. v. City of New York, et al., 71 NY2d 274; Appeal of Argueta, 53 Ed Dept Rep, Decision No. 16,618 Appeal of Perez, 42 id. 71, Decision No. 14,779; Appeal of Holzer, 37 id. 549, Decision No. 13,924).

Petitioner has not met her burden of establishing a clear right to the requested relief.  Petitioner does not allege, and the record does not show, that policy 5110 or its deadline are arbitrary or capricious (Appeal of Khan, 58 Ed Dept Rep, Decision No. 17,437; Appeal of Argueta, 53 id., Decision No. 16,618), and petitioner has not proven that a timely waiver request was submitted.[2]  Therefore, on this record I cannot conclude that respondent acted in an arbitrary and capricious manner or abused its discretion in denying petitioner’s request.

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




1 Policy 5110 refers to such transfers as, alternately, “transfers” and “waivers.”  It is unclear from the record, or from a review of the policy, whether there is any distinction between these terms.  Because the terms appear to have been used interchangeably, they have been construed accordingly for purposes of this decision.


[2] Even if petitioner had proven that she submitted a timely waiver request to the superintendent, she would not be entitled to an order directing that her daughter be permitted to attend South High School. Under policy 5110, a waiver request is not automatically granted, but is limited by a building’s functional capacity or space availability.  Eligibility is further limited where, as here, the student has no siblings in the requested school.  There is no evidence in the record concerning South High School’s functional capacity or whether the number of waiver requests to that school would exceed the school’s functional capacity, necessitating a lottery.