Decision No. 12,998

(September 2, 1993)

Buchyn, O'Hare, Werner & Gallo, attorneys for respondent, Kathryn McCary, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow her daughter, Diana, to attend Lincoln Elementary School. The appeal must be dismissed.

At the beginning of the 1989-90 school year, petitioner enrolled her daughter in kindergarten in respondent's schools. At that time, respondent's policy allowed parents to request to transfer their child to a school outside their attendance zone. Such requests were granted as space was available. Pursuant to this policy, petitioner requested, and was granted, permission for her daughter to attend the district's Lincoln Elementary School. Petitioner's daughter completed kindergarten, first and second grades at the Lincoln School.

During the 1991-92 school year, respondent restructured its elementary school attendance zones. In addition, respondent terminated the policy which allowed parents to request transfers to schools outside their attendance zones. Effective with the beginning of the 1992-93 school year, all students were required to attend the elementary school in their respective zones of residence, with two specific exceptions. The first exception allowed students, selected by voluntary lottery, to attend one of the district's magnet schools. The second exception, made in the course of collective bargaining, allowed the district's teachers to request that their children attend a specific school. The district notified parents at the end of the 1991-92 school year of the new attendance zone policy.

Prior to the start of the 1992-93 school year, petitioner registered her daughter under an address within the Lincoln Elementary School attendance zone. The address petitioner gave the district was the address of her daughter's babysitter and not her daughter's residence. Petitioner alleges that the district knew that petitioner resided in the Pleasant Valley Elementary School attendance zone but allowed her daughter to attend the Lincoln School because her babysitter lived in the Lincoln School attendance zone. Respondent, however, alleges that it did not learn that petitioner and her daughter resided within the Pleasant Valley School attendance zone until December 1992.

By letter dated January 25, 1993, respondent's Assistant Superintendent for Elementary Education informed petitioner that because her daughter lived in the Pleasant Valley attendance zone, she would be required to attend Pleasant Valley Elementary School on or before February 8, 1993. On February 5, 1993, petitioner notified respondent of her intention to commence home instruction. This appeal ensued. On April 20, 1993, I denied a request for a stay pending a determination on the merits.

Petitioner contends that respondent should permit her daughter to attend Lincoln Elementary School because a transfer to Pleasant Valley Elementary School would be physically and emotionally detrimental to her daughter. Petitioner maintains that her daughter, who has arthritis, is comfortable at the Lincoln School, and that the staff and students of the Lincoln School are familiar with her special needs. Petitioner also expresses a number of concerns about safety at Pleasant Valley Elementary School. Petitioner further contends that the district has allowed other students to attend schools outside their attendance zones.

Respondent contends that this appeal should be dismissed as untimely. Respondent maintains that decisions concerning pupil attendance at a particular school within the school district are within the discretion of the board pursuant to Education Law '2503. Respondent also asserts that its attendance zone policy is fair and reasonable and that its decision regarding petitioner's daughter is consistent with this policy.

Respondent maintains that this appeal must be dismissed as untimely because it was commenced more than 30 days after respondent advised petitioner that her daughter was required to attend Pleasant Valley Elementary School (8 NYCRR '275.16). By letter dated March 9, 1993, my Office of Counsel rejected a petition submitted by petitioner because it did not comply with the requirements of Part 275 of the Regulations of the Commissioner of Education. The letter sent by my Office of Counsel did not extend the time within which service of the petition must be completed (Matter of Roth, 23 Ed Dept Rep 352). Where a petition is served in a timely manner but is defective in form, the defects may be cured by the service of a corrected petition (Id.). In this case, there is no evidence that either the defective or corrected petition was ever served upon respondent until April 1, 1993. I, therefore, find that this appeal was not commenced until April 1, 1993, which is more than 30 days after respondent's letter of January 25, 1993 or the effective date of its decision, February 8, 1993. Accordingly, the appeal must be dismissed as untimely.

The appeal must also be dismissed on the merits. Pursuant to Education Law '2503(4)(d), respondent is authorized to "determine the school where each pupil shall attend." Pupil placement is a matter of educational policy, which lies within the professional judgement and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, citing, Hoffman v. Board of Educ., 49 NY2d 121 and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564). Accordingly, absent a showing that respondent's policy is arbitrary, capricious, or an abuse of discretion, such determination may not be disturbed (Matter of Britt v. Rogers, supra; Appeal of Goldup, 30 Ed Dept Rep 477).

Upon review, I find respondent's attendance zone policy fair and reasonable. Under respondent's policy, students must attend the elementary school in the attendance zone in which they reside, with two limited exceptions not applicable to petitioner's daughter. I also find that petitioner, who admits that her daughter lives in the Pleasant Valley attendance zone, has failed to show that respondent's policy is arbitrary or capricious as applied to the facts in this case.

Petitioner has not demonstrated that there is any physical or emotional reason why her daughter cannot attend the Pleasant Valley School. There is no evidence that her daughter's arthritis prevents her from attending the Pleasant Valley School. Moreover, the mere fact that petitioner's daughter may have some difficulty adjusting to a new school, while regrettable, is simply not a basis for overturning respondent's decision (Appeal of Cullen, 32 Ed Dept Rep 179).

Although petitioner alleges that some students are allowed to attend school outside their attendance zones and that there are safety problems at the Pleasant Valley School, petitioner offers no proof in support of these allegations. Accordingly, I find that respondent's refusal to allow petitioner's daughter to attend the Lincoln School is not arbitrary or capricious.

THE APPEAL IS DISMISSED.

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