Decision No. 12,926

(May 7, 1993)

Bartlett, Pontiff, Stewart, Rhodes & Judge, P.C., attorneys for respondent, Lawrence Paltrowitz, Esq., of counsel

SOBOL, Commisssioner.--Petitioners, on behalf of their son, appeal from respondent's denial of reimbursement for college tuition and the cost of a textbook. The appeal must be dismissed.

During the 1991-1992 school year, petitioners' son was an 11th grade student in respondent's district. In the spring of 1991 and with respondent's approval, the student enrolled in, and successfully completed, an independent study calculus course offered by Pennsylvania State University. Respondent reimbursed petitioners for their son's tuition expense.

The student's mathematics teacher, who had been serving as his proctor and tutor in connection with the independent study course, recommended that the student take a second semester of calculus at a college location. Petitioners then enrolled their son in a calculus course offered at a local community college and subsequently requested that respondent reimburse petitioners for the college tuition and the cost of the course textbook. On October 16, 1991, respondent board voted to deny petitioners' request for reimbursement. By letter dated October 21, 1991, the superintendent notified petitioners of respondent's decision. This appeal followed.

Petitioners allege that respondent approved tuition reimbursement for at least two other students and contend that respondent's denial of their request for reimbursement is unjustified. Petitioners request that I direct respondent to establish a written policy on reimbursement for "non-offered and/or enrichment subject tuition, textbook, and travel expense" and that I direct respondent to reimburse petitioners for the college tuition and textbook cost, as well as the costs of this appeal.

Respondent contends that it properly denied petitioners' request for reimbursement because petitioners enrolled their son in the calculus course at the community college without prior approval from respondent. Respondent contends that petitioners have failed to state a claim upon which relief may be granted, that they have not demonstrated a clear legal right to the relief requested and that respondent has otherwise acted within the scope of its authority pursuant to the Education Law.

As a threshold matter, I must reject certain portions of petitioners' reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR '275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Pronin, 27 Ed Dept Rep 203). Similarly, a reply may not be used to raise new issues (Appeal of Ver Hunce, et al., 26 Ed Dept Rep 340). I note that petitioners' reply contains new allegations and material. Furthermore, much of the material either buttresses allegations in the petition or else should have been included in the petition. Accordingly, those portions of petitioners' reply which raise new issues, seek new relief or which include material that should have been included in the petition must be disregarded.

With respect to the merits, petitioners bear the burden of establishing a clear legal right to the relief requested (Appeal of Keller, 32 Ed Dept Rep 47). Upon the record before me, I find that petitioners have failed to meet that burden. The essence of petitioners' claim is that respondent allegedly agreed to reimburse petitioners for the tuition and textbook expenses resulting from their son's enrollment in the calculus course offered by the community college. However, the petition does not establish that respondent agreed to such reimbursement. Although the student's mathematics teacher recommended that the second semester of calculus be taken at "a college location", there is no evidence that the mathematics teacher made any representation that respondent would reimburse petitioners for such placement, or that the teacher had actual or apparent authority to agree to reimbursement on behalf of the school district.

Even if I were to consider the reply material that has been improperly submitted, there is nothing in such material, or anything else in the reply, that establishes that respondent agreed to reimburse petitioners for their son's tuition and textbook costs at the community college. The school superintendent's letter of March 6, 1990 refers to respondent's commitment to cover the tuition costs for two semesters in the Pennsylvania State University independent study program, but makes no mention of any alternative placement for which reimbursement would be made. Petitioners' enrollment of their son in the community college is a significant departure from the terms of the superintendent's letter.

In view of the absence of any agreement to reimburse petitioners, I do not find unreasonable respondent's determination to reject petitioners' request for reimbursement because petitioners enrolled their son in the calculus course without any prior approval from respondent. While petitioners allege that they believe the requests of the other students were approved by respondent subsequent to the students' enrollments, petitioners offer no other proof in support of their allegation; and upon the record before me, I find petitioners have failed to establish that respondent engaged in such conduct.

THE APPEAL IS DISMISSED.

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