Decision No. 14,200

(August 24, 1999)

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of New York ("respondent") and Chancellor Rudolph F. Crew ("respondent Crew") to refuse his daughter admission to the Michael J. Petrides School ("Petrides"). The appeal must be dismissed.

Petitioner and his daughter, Stephanie, are residents of respondent's district ("district"). In May 1997, petitioner submitted an application on behalf of Stephanie for the lottery for admission to Petrides' 1997-98 kindergarten class. Petitioner received a letter dated June 6, 1997, stating that Stephanie had been accepted for admission to Petrides and an invitation to an orientation on June 17, 1997. The invitation requested that petitioner bring a birth certificate and immunization record to the orientation to register Stephanie. On June 17, 1997, petitioner brought Stephanie to Petrides where, during the registration process, Petrides staff ascertained that Stephanie was not eligible to attend Petrides because she would not be five years of age on or before December 31, 1997, as required by respondent's regulation. Petitioner then spoke with respondent's superintendent, Christy Cugini, seeking admission for Stephanie to Petrides for the 1998-99 school year. While accounts of what transpired differ, it is apparent that petitioner felt that Cugini agreed Stephanie would be admitted to Petrides the next year.

In March 1998, petitioner contacted respondent's staff to ensure that Stephanie would be admitted to Petrides for the 1998-99 school year. Sometime in early April 1998, petitioner was informed that Stephanie would not be admitted to Petrides. On April 17, 1998, petitioner wrote to respondent Crew requesting a review of the decision. By letter dated May 28, 1998, respondent Crew informed petitioner that Stephanie would not be admitted to Petrides. Petitioner again entered Stephanie in a lottery for admission to Petrides. The lottery was held June 1, 1998, and Stephanie's name was not selected. By letter dated June 5, 1998, petitioner appealed to respondent board. Respondent, by letter dated June 8, 1998, notified petitioner that it would not review respondent Crew's decision. Petitioner presented a letter of appeal to respondent board at its June 17, 1998 meeting. Respondent, by letter dated July 2, 1998, again informed petitioner that respondent Crew's decision was final. This appeal ensued and petitioner's request for interim relief was denied on September 4, 1998.

Petitioner contends that Cugini promised to admit Stephanie to Petrides for the 1998-99 school year. He argues that Cugini had the authority to do so and that respondent should admit Stephanie to Petrides based on that promise. He further contends that the applications used for the lottery do not comply with district regulations because they do not state the age requirement for kindergarten applicants.

Respondent contends that the petition is untimely and fails to state a claim. Respondent further contends that no promise was made to petitioner guaranteeing Stephanie's admission to Petrides and no employee of respondent's had the authority to do so. Respondent argues that its decision was not arbitrary or capricious. Respondent also argues that the appeal must fail because equitable estoppel is unavailable against government agencies.

Initially, I will address issue of timeliness. An appeal to the Commissioner of Education must be commenced within thirty days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The appeal was commenced July 30, 1998. Respondent submitted a copy of its June 8, 1998 letter informing petitioner that respondent Crew's decision was administrative and not appealable to the board of education. Petitioner claims he never received that letter and that his first notice that respondent did not review such administrative decisions was a letter from respondent dated July 2, 1998. Presumably, if petitioner had received the June 8 letter, he would not have appeared at the public portion of respondent's June 17, 1998 meeting to present his letter of appeal. I have previously held that where a question exists as to whether or not a petitioner received a determination letter, the interests of justice would not be served by dismissing the appeal as untimely (Appeal of Krom, 37 Ed Dept Rep 459, Decision No. 13,905; Appeal of Eatemadpour, 37 id. 178, Decision No. 13,835). Therefore, I will not dismiss the appeal as untimely.

Respondent also raises the issue of estoppel. Petitioner argues that respondents should be estopped from excluding Stephanie from Petrides because he and Stephanie relied to their detriment on an alleged promise made by Cugini. Specifically, he points to Stephanie's disappointment and the expenses incurred by his decision to send Stephanie to a private school rather than to the district school to which she has been assigned. However, except in limited circumstances not applicable here, equitable estoppel does not apply against a government subdivision (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. v. Moore, 52 NY2d 88; Appeal of Hulzer, et al., 37 Ed Dept Rep 549; Appeal of Prospero, 37 id. 62). Moreover, respondent assigned Stephanie to another school in its district. It was petitioner's decision not to take advantage of that placement. Therefore, equitable estoppel does not prevent respondent from excluding Stephanie from Petrides.

Pursuant to Education Law Article 52-A, ""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, et al. v Board of Ed., 27 NY2d 333; Appeal of the Lancaster Parent Alliance, 38 Ed Dept Rep 356, Decision No. 14,053). In the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo v. Donovan, 22 AD2d 383; aff'd 16 NY2d 619, cert den 382 US 905; Appeal of the Lancaster Parent Alliance, supra). Accordingly, 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, supra). In the instant case, petitioner mistakenly entered Stephanie in the Petrides lottery before she was eligible for admission. Respondent's regulations, contrary to petitioner's assertion, do not require the lottery applications to state the age requirements. Petitioner was required to produce Stephanie's birth certificate during the registration process on June 17, 1997, at which time he was immediately informed of the error. Petitioner attempted to extract a promise from Cugini that would guarantee Stephanie a placement at Petrides for the following year. Petitioner submits an affidavit he composed for Cugini's signature describing their conversation. While Cugini did not sign the affidavit, it appears he stated to petitioner there was "no reason Stephanie Ibrahim should not be accepted" into Petrides the following year.

I do not find Cugini's statement to be a "guarantee" of admission. Further, respondent states that in March 1998, respondent Crew assumed direct management of Petrides, in part, because of suspected irregularities in the admissions process. Consequently, all who sought admission to kindergarten at Petrides for the 1998-99 school year were required to submit a lottery application. While I understand Stephanie's disappointment, I do not find respondent's decision in this matter to be arbitrary or capricious. Accordingly, I will not substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

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