Appeal of M.P.M., on behalf of her son D.M., from action of the Board of Education of the Levittown Union Free School District regarding attendance zones.

Decision No. 15,567

(April 12, 2007)

Ingerman Smith, LLP, attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Levittown Union Free School District (“respondent”) denying her request for her son, D.M., to attend a middle school outside his attendance zone.  The appeal must be dismissed.

In the 2004-2005 school year, D.M. was a fifth grade student at respondent’s Abbey Lane Elementary School (“Abbey Lane”).  Students at Abbey Lane are assigned to one of two middle schools based on the attendance zone in which they reside.

Based on the attendance zone in which petitioner resides, D.M. was assigned to attend Wisdom Lane Middle School (“Wisdom Lane”) for the 2005-2006 school year.  However, D.M.’s three best friends from elementary school lived in another attendance zone and were all assigned to attend Jonas E. Salk Middle School (“Salk”).

The school district’s policy generally requires students to attend the schools located within the attendance zone in which they reside.  The policy permits “intra-district transfers” for students to attend schools outside the attendance zone in which they reside where “significant extenuating circumstances related to safety, mental health or discipline” exist.

On or about November 27, 2006, petitioner requested that D.M. be transferred to Salk because he missed his friends, was failing one class and was doing poorly in two other classes.  In response to petitioner’s request, the superintendent recommended that D.M. undergo a psychological evaluation, which was conducted on January 11, 2007.

The psychologist’s report explained that the decline in D.M.’s grades was “directly related” to his failure to complete homework assignments, study for tests and attend extra help sessions.  The report stated that while D.M. was experiencing “feelings of loss and sadness” due to separation from his friends, he did not meet the criteria for “major depression.”  The report also noted that D.M. possesses the “adaptive mechanisms and resiliency to develop friendships at Wisdom,” and that because changes in friendships are common during the middle school years, there is “no guarantee that by moving D.M. to Salk his friendships with his three old friends will remain intact.”

The superintendent denied petitioner’s request for an intra-district transfer on or about January 19, 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 31, 2007.

Petitioner admits that she does not live within the Salk attendance zone.  However, she appears to argue that an exception to the intra-district transfer policy should be granted in cases such as D.M.’s where “a child is having a problem with grades and separation.”

Respondent contends that the appeal must be dismissed for failure to state a claim upon which relief can be granted.  Respondent also objects to petitioner’s reply.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Pursuant to Education Law §1709(3) and (33), a board of education of a union free school district 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. Bd. of Educ. Of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Frost, 46 Ed Dept Rep ___, Decision No. 15,528; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318).  In the assignment of students to schools, a board of education has broad discretion (Matter of Addabbo, et al. v. Donovan, et al., 22 AD2d 383; affd 16 NY2d 619, cert. denied 382 US 905; Appeal of P.C., 45 Ed Dept Rep 476, Decision No. 15,386; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  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, et al. v. Bd. Of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of P.C., 45 Ed Dept Rep 476, Decision No. 15,386; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  Moreover, 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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Based on the record before me, I find that petitioner has not met her burden of showing that respondent acted in a manner that was arbitrary, capricious or contrary to sound educational policy.  Generally, respondent’s policy requires students to attend the schools located within the attendance zone in which they reside.  Respondent’s policy allows exceptions to this rule where “significant extenuating circumstances related to safety, mental health or discipline” exist.  Respondent maintains that its policy is designed to determine whether intra-district transfers are “reasonable and in the best interests of the students involved.”  Therefore, it appears that respondent’s policy has a rational basis and is consistent with sound educational policy.

Petitioner admits that she does not live within the Salk attendance zone.  Further, the record before me contains no evidence that “significant extenuating circumstances” exist.  While it is unfortunate that D.M. has been separated from his elementary school friends, he has been attending Wisdom Lane since the start of the 2005-2006 school year, and appears to be making progress.  Indeed, the psychologist who examined him in January 2007 found that D.M. was able to form new friendships and had recently joined the bowling team at Wisdom Lane.  In addition, the psychologist reported that D.M. has been studying for his tests “and is feeling better about himself in relation to his academic performance.”

On the record before me, I cannot conclude that respondent’s decision was arbitrary, capricious, or contrary to sound educational policy.  Therefore, I will not disturb it.

THE APPEAL IS DISMISSED.

END OF FILE