Appeal of SEBRINA HENDERSON, on behalf of her daughter CHELSEA, from action of the Board of Education of the City School District of the City of Yonkers regarding school assignment.

Decision No. 15,302

(August 29, 2005)

Donoghue, Thomas, Auslander & Drohan, attorneys for respondent, Ana I. Gonzalez, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Yonkers ("respondent") denying her request that it assign her daughter, Chelsea, to attend the Yonkers Middle School. The appeal must be dismissed.

Respondent implements a balloting process in March of each year which allows the parents of its students to identify their top three choices for the specific school that their child might attend the following school year. In March 2005, petitioner failed to submit a ballot for the coming school year for her three children. Having received no parental ballot, respondent assigned Chelsea's older and younger sisters to continue at the schools they were attending and assigned Chelsea to enter the Emerson Middle School in September 2005. On May 11, 2005, petitioner requested that respondent assign Chelsea to the Yonkers Middle School because her older sister would be attending that school. Respondent denied petitioner's request, but placed Chelsea on a waiting list. This appeal ensued. Petitioner's request for interim relief was denied on June 30, 2005.

Petitioner asserts that Chelsea's assignment to Emerson Middle School creates a burden because petitioner's three children will be attending three different schools. She asks that I excuse her failure to submit a ballot because it was unintentional and due to emotional factors including a cousin's death that occurred in March 2005. Respondent asserts that it has the authority to assign pupils to the district's schools and that Chelsea's assignment to Emerson Middle School and placement on the waiting list for Yonkers Middle School is consistent with the board's policy.

Initially, I must address a procedural matter. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR �276.5). A July 12, 2005 letter written by an attorney on petitioner's behalf was served on respondent, and a copy was submitted to me. Having received no application to consider the submission and upon respondent's objection, I have disregarded the letter.

The appeal must be dismissed on the merits. A board of education of a large city school district has broad powers pursuant to Education Law ��1709(3) and (33), and 2554 to manage and administer the affairs of the school district. A board of education has broad discretion regarding the assignment of students to schools (Matter of Older, et al. v. Board of Ed., 27 NY2d 333; Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, certden 382 US 905; Appeal of Alves, 44 Ed Dept Rep 334, Decision No. 15,190). 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, 27 NY2d 333; Appeal of DePaolo, 38 Ed Dept Rep 4, Decision No. 13,970).

Respondent has opted to exercise its discretion in the assignment of students to its schools by using a balloting system to give parents an opportunity to identify the schools of their choice. Respondent assigned Chelsea to Emerson Middle School because a seat was available and petitioner had failed to submit a ballot stating a preference. When petitioner advised respondent of her preference, Yonkers Middle School was already filled to capacity and a waiting list had been established. Although petitioner explains the reasons she forgot to submit a ballot and the difficulty of having her children in three different schools in the coming school year, she has not established that respondent was required to consider these factors. Based upon the record before me, I find that respondent had the authority to implement its policy regarding the assignment of pupils and that respondent's assignment of Chelsea to Emerson Middle School was consistent with that policy.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). Petitioner has failed to meet her burden of proving that respondent's actions were arbitrary, capricious or contrary to sound educational policy.

THE APPEAL IS DISMISSED.

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