Appeal of MARTHA ARGUETA, on behalf of her daughter JOANNA, from action of the Board of Education of the Valley Stream Central High School District regarding attendance zones.

Decision No. 16,618

(June 20, 2014)

Guercio & Guercio, LLP, attorneys for respondent, John P. Sheahan, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the determination of the Board of Education of the Valley Stream Central High School District ("respondent" or “board”) that her daughter, Joanna, may not attend school outside the attendance zone in which she resides. The appeal must be dismissed.

Respondent operates four schools serving students in grades seven through 12: one junior high school for grades seven through nine, Memorial Junior High School ("Memorial"); one senior high school for grades 10 through 12, Central High School; and two combined junior/senior high schools, North High School and South High School ("North" and "South" respectively). Petitioner resides in the Memorial attendance zone.

Respondent’s Policy 5110 (“Policy 5110”) provides that students shall attend school in the zone where they reside, except by approval of the superintendent. According to Policy 5110, a waiver request to attend a different secondary school must be received in writing by the superintendent no later than February 15th of the student’s sixth-grade year. Policy 5110 also states that “[p]arents shall appeal any notice of denial to [respondent] within 10 days. Appeals to [respondent] shall be limited to the question of whether the lottery selection procedure has been followed.”

On or about December 17, 2012, respondent’s superintendent sent a letter notifying the parents of incoming seventh-grade students of Policy 5110 and the February 15, 2013 application deadline. By letter dated March 14, 2013, which respondent received on March 15, 2013, petitioner requested a waiver for Joanna to attend school at South, outside her attendance zone. By letter dated March 15, 2013, the superintendent acknowledged receipt of petitioner’s letter requesting a waiver, and advised that the application was denied as untimely pursuant to Policy 5110, a copy of which was enclosed. The superintendent met with petitioner on March 25, 2013 and “advised [her] of her opportunity to appeal to [respondent].”

By letter dated April 1, 2013, petitioner appealed to respondent, and by letter dated April 3, 2013, the board president advised that respondent declined to take action regarding petitioner’s appeal of the superintendent’s denial of the untimely waiver request. The board president advised that Policy 5110 “empowers the [superintendent] to make these determinations and they are not reviewable by [respondent].” By letter dated May 31, 2013, petitioner’s husband requested reconsideration of respondent’s decision. By letter dated June 5, 2013, the district clerk notified petitioner’s husband that he had exhausted all district-level remedies and advised him of his right to appeal to the Commissioner of Education. This appeal ensued. Petitioner’s request for interim relief was denied on October 3, 2013.

Petitioner alleges that due to a medical condition and surgery, she was unable to timely submit an attendance zone waiver request and that this constituted good cause for her delay. Petitioner contends that it is in Joanna’s best interest to attend South, since Joanna’s two sisters attend South, which is closer to her home, and her fear of attending Memorial has resulted in “not eating and depression.” Petitioner requests a determination that Joanna “is a resident of [South] and is entitled to attend without the payment of tuition.”

Respondent asserts that the appeal is untimely. Respondent also asserts that petitioner has failed to state a claim upon which relief may be granted; to establish a clear legal right to the relief requested; and to establish the facts upon which she seeks relief. Respondent maintains that its determination was consistent with its waiver policy, which is based on sound educational policy, and was not arbitrary or capricious.

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). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent asserts that petitioner was required to commence this appeal within 30 days of the date of the superintendent’s March 15, 2013 letter. As noted above, the record indicates that, by letter dated March 15, 2013, the superintendent denied as untimely petitioner’s request to transfer Joanna from Memorial to South. Affording the usual five days for mailing, since it is unclear from the record when petitioner received the determination, petitioner had until April 19, 2013, to commence this appeal. Petitioner’s affidavit of personal service states that the petition was not served until September 24, 2013.

Although not entirely clear, petitioner appears to assert that the 30-day timeline did not begin to run until respondent denied her request for reconsideration on June 5, 2013. In an affidavit, the superintendent avers that he “advised [petitioner] of her opportunity to appeal to [respondent].” By letter dated April 1, 2013, petitioner appealed the superintendent’s decision to respondent. However, by letter dated April 3, 2013, the board president advised that respondent declined to take action regarding petitioner’s appeal because Policy 5110 “empowers the [superintendent] to make these determinations and they are not reviewable by [respondent].” Upon reviewing Policy 5110, it appears that, while an appeal process exists for notices of denial, “[a]ppeals to [respondent] shall be limited to the question of whether the lottery selection procedure has been followed.” Here, petitioner was not disputing whether the lottery selection procedure had been followed; rather, petitioner was apparently arguing that her medical condition and surgery constituted an exception to Policy 5110’s application deadline. Therefore, I find that no board-level appeal was required in this case, and petitioner was required to commence this appeal on or before April 19, 2013, as discussed above. In addition, while petitioner sought reconsideration of respondent’s decision on May 31, 2013, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).

Even if the time to commence this appeal were measured from respondent’s April 3, 2013 and June 5, 2013 letters declining to take action, petitioner did not commence the instant appeal until September 24, 2013 – well over 30 days after either date. While petitioner attempted to commence the instant appeal by letter dated July 25, 2013, that attempt was procedurally flawed, and, in any event, would have been untimely for the reasons discussed above. Therefore, the appeal must be dismissed as untimely.
Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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. Board of Educ., 27 NY2d 333; Appeal of Araneo, 45 Ed Dept Rep 325, Decision No. 15,336; Appeal of P.S., 39 id. 806, Decision No. 14,387; Appeal of Ibrahim, 39 id. 155, Decision No. 14,200). Such powers and duties are applicable to boards of central high school districts by virtue of Education Law §1903. In the assignment of pupils 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 Hallenback, 47 Ed Dept Rep 481, Decision No. 15,760; Appeal of the Lancaster Parent Alliance, 38 id. 356, Decision No. 14,053). 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. Board of Educ., 27 NY2d 333; Appeal of Hallenback, 47 Ed Dept Rep 481, Decision No. 15,760). Petitioner bears the burden of demonstrating that respondent’s action meets this standard (Appeals of Johnson, et al., 37 Ed Dept Rep 465, Decision No. 13,906; Appeal of Sherwood, et al., 33 id. 410, Decision No. 13,096; Appeal of McNerney, et al., 28 id. 250, Decision No. 12,097).

I find that petitioner has failed to meet her burden. Notably, the petition contains no allegations that Policy 5110 - which requires that a waiver request be received by the superintendent no later than February 15 of the student’s sixth-grade year - is arbitrary, capricious, or contrary to sound educational policy. Respondent argues that its policy is designed to balance enrollment among its secondary school facilities and the deadline provides the district with sufficient time to review requests in light of limited space and resources. In a previous decision, Commissioner Mills found that respondent’s policy has a rational basis and is consistent with sound educational policy (see Appeal of Araneo, 45 Ed Dept Rep 325, Decision No. 15,336). Petitioner admits that she failed to meet the deadline set forth in the policy in this case. While she asserts that she underwent surgery on January 3, 2013, she provides no excuse for her failure to submit a timely waiver request prior to or following the date of surgery. Further, petitioner does not explain why her husband, who submitted the appeal to respondent, was unable to do the same. Moreover, the record reveals that petitioner has, in the past, submitted timely waiver requests for two of her other children, who currently attend South. Thus, petitioner has no legal basis to insist that her daughter be permitted to attend South. On the record before me, I cannot conclude that respondent’s decision was arbitrary, capricious or contrary to sound educational policy. (see Appeal of Araneo, 45 Ed Dept Rep 325, Decision No. 15,336).

THE APPEAL IS DISMISSED.

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