Decision No. 18,534
Appeal of L.K., on behalf of her children, from action of the Board of Education of the Massapequa Union Free School District regarding educational placement.
Decision No. 18,534
(December 17, 2024)
Guercio & Guercio LLP, attorneys for respondent, Eric Levine, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District (“respondent”) regarding the educational placement of her two children (“student 1” and “student 2”). The appeal must be dismissed.
Respondent’s policy 5115 provides that students “shall attend that school designated by the[ir] attendance boundaries ....” Parents may request exceptions to this requirement, which are evaluated “solely upon the physical, social, academic, and psychological needs of each child.”
Petitioner and the students reside within respondent’s school district in the attendance zone for East Lake Elementary (“East Lake”). In May 2022, respondent’s Committee on Special Education (“CSE”) recommended that student 1 attend an integrated co-teaching (“ICT”) class located at McKenna Elementary (“McKenna”). Student 1 began attending McKenna in fall 2022.
On January 12, 2024, petitioner requested that student 2, due to begin kindergarten at East Lake in September 2024, be permitted to attend McKenna. Respondent denied this request on January 22, 2024, indicating that district policy did not permit such an arrangement.
On February 16, 2024, petitioner reiterated her requested that student 2 be permitted to attend McKenna. She submitted documentation from a pediatrician who asserted that student 1 would experience anxiety if student 2 attended a different elementary school. Respondent denied petitioner’s request; this appeal ensued.
Petitioner contends that it is in both of her children’s interests to attend McKenna, explaining that the students previously “bonded over similar experiences and shared teachers” in preschool. She further asserts that student 2 is a source of comfort and support to student 1. Petitioner additionally expresses concern that student 1 may feel “isolated or different” if student 2 attends a different elementary school because student 1 “does not know that East Lake is his home school or that he is in a special classroom setting.”[1] For relief, petitioner requests an order allowing student 2 to attend school with student 1 at McKenna.
Respondent asserts, among other procedural contentions, that the appeal is untimely. On the merits, respondent asserts that the superintendent considered policy 5115 and reached a rational decision.
I must first address a procedural issue. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). While respondent is correct that a request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914), a new determination restarts the time within which to appeal (Appeal of Clark, 61 Ed Dept Rep, Decision No. 18,065). Respondent’s initial determination suggested that “there [was] no provision in board of education policy or district practice that allow[ed] for this kind of consideration.” Following petitioner’s submission of the pediatrician’s note, respondent acknowledged the applicability of policy 5115 and declined to grant an exception thereunder. Given the fact that respondent first disclosed the applicable policy and its reasoning in its March 2024 determination, I decline to dismiss the appeal as untimely.
Turning to the merits, school districts have broad discretion in assigning students to schools. 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 v Board of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333 [1971]; Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Johnson, et. al., 37 id. 465, Decision No. 13,906). 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 v Board of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Diana, 61 Ed Dept Rep, Decision No. 18,020).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
While it would undoubtedly benefit the students to attend the same school, petitioner has not established a clear legal right to such relief. As indicated above, respondent evaluates transfer requests based “upon the physical, social, academic, and psychological needs of each child.” There is no evidence that students 1 or 2 have struggled from attending different schools; petitioner indicates that student 1 has “adjusted well” at McKenna and student 2 had not begun attending the district’s schools at the time of petitioner’s request. The concerns articulated by the pediatrician, while valid, are speculative at this time. Thus, petitioner has not submitted sufficient proof to overturn respondent’s determination (Appeal of M.M., 58 Ed Dept Rep, Decision No. 17,645; see generally Appeal of M.D. and I.D., 61 Ed Dept Rep, Decision No. 18,020; Appeal of B.K.V., 58 id., Decision No. 17,577).
To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.
THE APPEAL IS DISMISSED.
END OF FILE
[1] Petitioner does not challenge the implementation of student 1’s individualized education plan at McKenna, a claim that implicates the Individuals with Disabilities Education Act’s least restrictive environment requirement (34 CFR 300.116 [c]; see Appeal of a Student with a Disability, N.Y. State Office of State Review, Decision No. 15-028, available at https://www.sro.nysed.gov/sites/sro/files/Decisions/2015/pdfversion/15-028.pdf). Such a claim, in any event, would have to be the subject of an impartial hearing or a State complaint (20 USC § 1415; Education Law § 4404; 8 NYCRR 200.5).