Appeal of SAMUEL YTUARTE, on behalf of his child, from action of the Board of Education of the North Merrick Union Free School District regarding residency.

Decision No. 18,584

(July 9, 2025)

Ingerman Smith, LLP, attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the North Merrick Union Free School District (“respondent”) to assign his child (the “student”) to a particular elementary school.  The appeal must be dismissed.

Respondent does not utilize attendance zones; instead, its superintendent assigns incoming students to one of its three elementary schools each year.[1]  In making such assignments, respondent prioritizes small class sizes; the distance between homes and schools; enrolling children in the same family within a single school; and ensuring the availability of special education services, which are largely centralized at Old Mill Elementary School (“Old Mill”).

By letter dated April 2, 2024, respondent informed petitioner that his child entering kindergarten in the fall had been assigned to Harold D. Fayette Elementary School (“Fayette”).  Petitioner believed, based upon conversations with the prior owner of his home and a neighbor, that his child would attend Old Mill, which he preferred given its location and proximity to his house.[2]  Petitioner contacted the district clerk, who informed him of the school’s policy and encouraged him to speak with the superintendent. 

Petitioner and the superintendent spoke by phone on April 8, 2024.  During this call, the superintendent explained that the number of incoming students necessitated the assignment of some families who had previously attended Old Mill to Fayette.  Petitioner also met with the superintendent on April 12, 2024.  Following this meeting, respondent confirmed that petitioner’s child could not be feasibly transferred as it would require reassigning another family.

In May 2024, petitioner submitted a Freedom of Information Law (“FOIL”) request to respondent seeking the “[d]ata used to determine which elementary school new kindergarten students are assigned to” within the district.  In a response dated June 11, 2024, respondent indicated that the requested data did not exist as school assignment is based on numerous factors considered by the superintendent.  This appeal ensued.

Petitioner contends that respondent unreasonably assigned the student to Fayette.  He argues that attendance at Old Mill is in the student’s best interest.  For relief, he seeks an order assigning the student to Old Mill in September 2025.

Respondent contends that the appeal must be dismissed, among other reasons, as untimely.  On the merits, respondent argues that it assigned the student to Fayette in accordance with its longstanding policy.

The appeal must be dismissed as untimely.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving notice of the determination or act (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 reveal when a petitioner received notice, the date of receipt is calculated as the date of the determination or act plus 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).

Petitioner admits that he received notice of the student’s elementary school assignment on April 5, 2024. Even assuming that the 30-day time limitation was tolled until petitioner received a response to his FOIL request, this appeal was submitted 10 months thereafter.  Petitioner did not, as required, present any explanation as to why the delay should be excused in the petition (8 NYCRR 275.16; see Appeal of L.K., 63 Ed Dept Rep, Decision No. 18,371; Appeal of A.G., 56 id., Decision No. 17,084; Appeal of Long, 39 id. 463, Decision No. 14,284).  Accordingly, the appeal must be dismissed as untimely.

Even if timely, the appeal 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 (Education Law §§ 1709 [3] and [33], 1804 [1], 1805).  In such cases, a board's discretion is broad and a board's decision will only be overturned when found to be arbitrary, capricious, or contrary to sound educational policy (Matter of Older et al. v Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333 [1971]; Appeal of B.K.V., 58 Ed Dept Rep, Decision No. 17,577; Appeal of Mohabir, 54 id., Decision No. 16,693).

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).

Petitioner has not articulated a legal right to attend Old Mill.  As indicated above, respondent assigns new students to one of three elementary schools upon their entry to the district.  Respondent’s adherence to this policy cannot be considered arbitrary or capricious (Appeal of Diana, 61 Ed Dept Rep, Decision No. 18,020).  Moreover, there is no proof that the superintendent unreasonably exercised her discretion under the policy. 
While the record suggests that there was available space at Old Mill in spring 2024,[3] respondent has provided a reasonable explanation; namely, that it did so “in the event that a new student with certain special education needs may enroll in the District.”

I understand that petitioner would prefer assignment to Old Mill, which he indicates is more convenient and appropriate for his family.  However, this does not provide a basis for overturning respondent’s decision (see Appeal of Diana, 61 Ed Dept Rep, Decision No. 18,020).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE