Appeal of W.S., on behalf of her son C.S., from action of the Board of Education of the Harpursville Central School District regarding nonresident student admission.

Decision No. 16,601

(March 12, 2014)

Coughlin & Gerhart, LLP, attorneys for respondent and intervenor, Carl A. Kieper, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Harpursville Central School District (“respondent”) denying her son permission to attend its schools as a nonresident student. The appeal must be dismissed.

Petitioner and her son reside outside respondent’s school district. Pursuant to Education Law §3202(2), respondent adopted a policy for the admission of nonresident tuition-paying students. Respondent’s nonresident student application and agreement provides, in pertinent part, that students must follow all rules and directions by teachers and other school personnel, and that any infractions of school rules may result in immediate removal from the district. It also provides that the failure to meet any of the conditions may result in losing the privilege of continued attendance in the district.

During the 2012-2013 school year, petitioner’s son was a sophomore enrolled in respondent’s district on a tuition basis. According to respondent, C.S. attended respondent’s district since preschool on a tuition basis, subject to annual renewals of the district’s nonresident student application and agreement.

By letter dated June 18, 2013, respondent’s superintendent notified petitioner that C.S. would not be invited to return to the district as a nonresident tuition-paying student for the 2013-2014 school year. Petitioner subsequently appealed the superintendent’s decision to respondent on July 8, 2013. By letter dated July 16, 2013, respondent’s president notified petitioner that respondent upheld the superintendent’s decision. The letter indicated that “[o]n multiple occasions [C.S.] did not follow directions by the teacher and also did not comply with school rules” in violation of the nonresident student

 

agreement. This appeal ensued. Petitioner’s request for interim relief was denied on August 29, 2013.

Although it is not entirely clear, petitioner appears to contend that respondent has improperly excluded her son from attendance at its schools without affording him appropriate due process. Petitioner requests a determination allowing C.S. to return to respondent’s district on a tuition basis, or alternatively, requiring respondent to provide an explanation of why petitioner received no warnings prior to C.S.’s dismissal. Petitioner also requests expungement of one incident from C.S.’s record.

Respondent contends that the appeal must be dismissed as untimely and for lack of proper service. Respondent denies any wrongdoing and asserts that its decision to deny C.S. admission as a nonresident tuition-paying student is justified by reason of his involvement in “a number of disciplinary incidents, including several during the past school year,” which demonstrates his noncompliance with school rules and teacher directions as required by the nonresident student application and agreement.

I must first address the procedural issues. I note that petitioner, who is acting without the assistance of counsel, submitted a reply to respondent’s affirmation in opposition to her request for interim relief. Although I may consider additional pleadings and papers in an appeal commenced pursuant to Education Law §310, I will not permit the subsequent addition of new claims that should have been set forth in the petition (see e.g., Appeal of Koehler, 46 Ed Dept Rep 425, Decision No. 15,553). Therefore, while I have considered petitioner’s reply, I have not considered those portions containing new claims that should have been included in the petition.

Respondent contends that the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). The record indicates that, by letter dated July 16, 2013, respondent’s president notified petitioner of respondent’s decision to uphold the superintendent’s decision. Petitioner asserts that she

 

received the determination letter on July 19, 2013. Petitioner, therefore, had until August 19, 2013, to commence the appeal. The affidavit of service filed with the petition reflects that the petition was personally served on August 19, 2013, apparently upon the “high school principal,” within the required time period.

However, the appeal must be dismissed for lack of proper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent. If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service indicates that the petition was served upon Michael Rullo (“Rullo”) on August 19, 2013, at 54 Main Street, Harpursville, New York. The record indicates that Mr. Rullo is respondent’s assistant superintendent and high school principal, which are not titles under which service upon a school district may be properly effected pursuant to §275.8(a) of the Commissioner’s regulations. Indeed, respondent denies that service was made upon any person authorized by it to accept service (see 8 NYCRR §275.8[a]) and submits an affidavit from the superintendent stating that neither she, nor any of respondent’s members were served, and that respondent has not authorized any additional individuals to accept service. Petitioner submits that Mr. Rullo was served because the superintendent “was not in her office at [the] time.” When there is no proof that the individual who received the petition is authorized to accept service on behalf of the school board, service on that individual is improper and the appeal must be dismissed (Appeal of Zayas, 53 Ed Dept Rep, Decision No. 16,546; Appeal of McIntyre, et al., 49 id. 333, Decision No. 16,045; Appeal of Baker, 47 id. 280, Decision No. 15,696).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen,

 

48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Although the petition is not entirely clear, petitioner appears to contend that respondent has improperly excluded her son from attendance at its schools without affording him appropriate due process. Petitioner requests an “explanation” of why no warnings were given prior to her son’s dismissal, as well as expungement of one disciplinary incident from her son’s record because “no investigation, parent meeting or discipline action” were conducted. The record indicates that, in denying petitioner’s request to enroll her son as a nonresident tuition-paying student, respondent has exercised its discretion pursuant to Education Law §3202(2) and its policy adopted thereunder. Thus, the due process requirements related to student suspensions (Education Law §3214) are not applicable here (Appeal of L.V., 45 Ed Dept Rep 561, Decision No. 15,416; Appeal of Sirlin, 41 id. 417, Decision No. 14,731; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

To the extent that petitioner's son was entitled to any due process prior to respondent's denial of petitioner’s request for his admission as a nonresident student, the record indicates that such due process was afforded to him. A student has a legal right to attend school only in the district in which the student resides (Education Law §3202[1]). Nonresident students may be permitted to attend the schools of a district in which they do not reside, but only upon the express consent of and upon terms prescribed by the district’s board of education (Education Law §3202[2]; Appeal of Holzer, et al., 37 Ed Dept Rep 549, Decision No. 13,924).

The decision to permit the attendance of nonresident students is discretionary with the board of education. Absent any right to attend respondent’s school district, petitioner’s son need only be afforded minimal due process with respect to respondent’s decision to deny his readmission. Here, petitioner had an opportunity to speak with respondent’s assistant superintendent and high school principal by telephone. She also had an opportunity to submit a written appeal to respondent and to address respondent at its July 8, 2013 meeting. Respondent considered petitioner’s appeal before rendering its July 16, 2013 decision to uphold the superintendent’s decision. I find, therefore, that petitioner's son was afforded appropriate due process with respect to respondent’s denial of his request for admission pursuant to its nonresident student admission policy (Appeal of L.V., 45 Ed Dept Rep

 

561, Decision No. 15,416; Appeal of Sirlin, 41 id. 417, Decision No. 14,731; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

Because petitioner has failed to carry her burden of establishing the facts or legal basis upon which she seeks relief, I find no basis to overturn respondent’s determination (see Appeal of L.V., 45 Ed Dept Rep 561, Decision No. 15,416; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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