Appeal of RICHARD and MICHELLE SANTORO, on behalf of their children, from action of the Board of Education of the Massapequa Union Free School District regarding attendance zones.

Decision No. 18,647

(November 3, 2025)

John McGrath, Esq., attorney for petitioner

Guercio & Guercio, LLP, attorneys for respondent, Eric Levine, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a decision of the Board of Education of the Massapequa Union Free School District (“respondent”), which denied a request for one of their children (“the student”) to attend a school outside of the attendance zone in which they reside.  The petition 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.”[1]

The student attended one of respondent’s elementary schools (“School 1”) for the 2023-2024 school year.  Petitioners subsequently moved to a location within the attendance zone for a different elementary school (“School 2”).[2]  Petitioners requested that the student be allowed to continue to attend School 1, arguing that it would better support his social-emotional health.  After consulting with employees of Schools 1 and 2, respondent’s superintendent denied this request in a letter dated October 22, 2024.

Petitioners reiterated their request by letter dated March 12, 2025.  The superintendent declined to reconsider his October 2024 determination, and this appeal ensued.

Petitioners contend that policy 5115 is facially invalid as it affords district officials ultimate authority to grant an exception.  Petitioners further argue that respondent erred by denying their request.  For relief, petitioners request an order permitting the student to attend School 1.  They also request that their other two children, who are not yet school age, be allowed to attend School 1.

Respondent asserts, among other procedural contentions, that the appeal is untimely.  On the merits, respondent asserts that the superintendent appropriately considered policy 5115 and reached a rational decision. 

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).  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). 

Respondent notified petitioners of its decision by letter dated October 22, 2024.  Petitioners commenced this appeal more than seven months thereafter.  While petitioners submitted another request in March 2025, this communication was in the nature of a request for reconsideration, which does not extend the time within which an appeal must be commenced (Appeal of D.C., 62 Ed Dept Rep, Decision No. 18,252; Appeal of J.L., 61 id., Decision No. 18,120; Appeal of M.A., 61 id., Decision No. 18,070; compare Appeal of L.K., 64 Ed Dept Rep, Decision No. 18,534).  Moreover, petitioners have not, as required, identified good cause for the delay in the petition (8 NYCRR 275.16).  Therefore, the appeal must be dismissed as untimely.

Even if timely, the appeal would have been 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; Appeal of M.D. and I.D., 61 Ed Dept, Decision No. 18,020).  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).

Petitioners assert that the student has “felt out of place and unhappy” since attending School 2.[3]  Petitioners also claim that “the faculty and staff at [School 2] were unable to adequately recognize or respond to [the student’s] ongoing emotional needs.”  Beyond these assertions, however, petitioners provide no proof of the conditions of which they complain.[4]

By contrast, respondent submits an affidavit from its superintendent, who spoke with school staff regarding the student and reviewed a log recounting staff interactions with the student.  None of this information, according to the superintendent, suggested that the student was unable to succeed at School 2.  While the superintendent acknowledges that the student experienced challenges adjusting to School 2 in fall 2024, he characterizes these challenges as “age[-]appropriate reactions to moving to a new school”; the superintendent further notes that “staff who interacted with [the student] did not see any significant issues related to his attendance” at School 2.  Thus, while I am sympathetic to petitioners’ concerns, the student’s difficulties in relocating to a new school are not a basis for overturning respondent’s decision (Appeal of Diana, 61 Ed Dept Rep, Decision No. 18,020; Appeal of C.T., 57 id., Decision No. 17,405; Appeal of Mohabir, 54 id., Decision No. 16,693).[5]

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

THE APPEAL IS DISMISSED.

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