Appeal of A.V. and N.V., on behalf of their daughter A.V., from action of the Board of Education of the Lindenhurst Union Free School District and Superintendent Daniel E. Giordano regarding attendance zones.

Decision No. 16,928

(July 19, 2016)

Bakshi Law, attorneys for petitioners, C. Lara Bakshi, Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent Lindenhurst Union Free School District, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Lindenhurst Union Free School District (“board”) and Superintendent Daniel E. Giordano (“superintendent”)[1] that their daughter, A.V., may not attend school outside the attendance zone in which she resides.  The appeal must be dismissed.

Petitioners and their three children reside in respondent’s district.  Pursuant to respondent’s policy #5120, entitled “Schools Where Elementary Pupils Will Attend,” elementary school students are generally assigned to their “geographical school area” absent certain conditions.  During the 2014-2015 school year, petitioners resided in the West Gates Avenue Elementary School (“West Gates”) attendance zone.  By letters to the superintendent dated February 9 and March 9, 2015, petitioners requested that their daughter, A.V., who would be starting kindergarten in September 2015, be permitted to attend Alleghany Avenue Elementary School (“Alleghany”), a school outside their attendance zone where her sister was currently enrolled.  The basis for their request was that A.V. attended the pre-kindergarten program at Alleghany; that it would be difficult to pick their daughters up from two different elementary schools; that A.V. would likely experience the same bullying issues that led to her sister’s transfer to Alleghany; and that petitioner A.V. would experience problems with other parents on the West Gates Parent Teacher Association (“PTA”).

By letter dated March 12, 2015, the superintendent advised petitioners that the board had reconsidered and denied their request, and that A.V. would be required to attend West Gates.

By email dated May 15, 2015, petitioners’ counsel again requested that the board transfer A.V. to Alleghany. By letter dated June 8, 2015, the district’s former counsel notified petitioners’ counsel that the board had affirmed the superintendent’s March 12, 2015 decision denying petitioners’ request to enroll A.V. in Alleghany for the 2015-2016 school year.  The letter indicated that “[t]here is nothing in [board] policy or regulation which allows for the transfer of students because of conflicts or disagreements the student’s parents had with other parents of students attending the same school building” and that “there have been no further incidents between your clients and the other parents in question since the original incident that occurred back in 2013.”  The letter advised petitioners of their right to appeal to the Commissioner within 30 days pursuant to Education Law §310.  This appeal ensued.  Petitioners’ request for interim relief was denied on August 3, 2015.

Petitioners allege that respondent’s denial of their request to transfer A.V. to Alleghany was arbitrary and capricious.  Although not entirely clear, petitioners appear to assert that respondent’s actions violated Education Law §§101, 207, 305, and 2801-a; §155.17 of the Commissioner’s regulations; the New York State Dignity for All Students Act (“DASA”); and Title VI of the Civil Rights Act of 1964.  Petitioners request an order requiring the district to allow A.V. to transfer to Alleghany.

Respondent contends that appeal must be dismissed as untimely, for lack of proper service, as premature, and for lack of subject matter jurisdiction.  Respondent further asserts that petitioners failed to set forth a clear and concise statement of their claims and the facts upon which they seek relief.  Respondent maintains that the district’s policy requires students to attend the elementary school in their attendance zone.

I must first address the procedural issues.  Respondent objects to a “purported affidavit” from petitioner A.V., submitted with the petition, as fatally defective because it is not a statement sworn under oath.  “While there is no specific form of oath required in New York (see General Construction Law §36), an oath is to be ‘calculated to awaken the conscience and impress the mind of the person taking it in accordance with his or her religious or ethical beliefs’ (CPLR §2309[b])” (New Millennium Psychological Services, P.C. v. Unitrin Advantage Ins. Co., 32 Misc3d 69, 70).  Moreover, “[a]n oath is to be administered in such a way as to impress upon the person making the oath that the material to which the person is swearing is true” (Greystone Staffing, Inc. v. Vincenzi, 7 Misc3d 1024[A]; see also People v. Grier, 42 AD2d 803).  In addition, “a notary, in the absence of a showing to the contrary, is presumed to have acted within his or her jurisdiction and to have carried out the duties required by law” (Furtow v. Jenstro Enterprises, Inc., et al., 75 AD3d 494, citing Feinman v. Mennan Oil Co., 248 AD2d at 504 [citations omitted]; see Appeals of D.F., 52 Ed Dept Rep, Decision No. 16,372).

Here, the document is written in the form of a letter.  Although the letter contains a notary public’s signature below petitioner A.V.’s signature, there is no attestation that petitioner A.V. was duly sworn or that she had actually appeared before the notary public (cf. Furtow v. Jenstro Enterprises, Inc., et al., 75 AD3d 494, 495 [form of affidavit was adequate where it recited that affidavit was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document]).  On the first page, petitioner A.V. simply states, “I swear that the following statement is the truth to the best of my recollection.”  Notably, although represented by counsel, petitioners failed to submit a reply to address these defects or the objections in respondent’s answer. I find that the collective defects in petitioners’ document constitute more than mere defects in form and render the purported affidavit inadequate (see New Millennium Psychological Services, P.C. v. Unitrin Advantage Ins. Co., 32 Misc3d 69; Appeals of D.F., 52 Ed Dept Rep, Decision No. 16,372).  Accordingly, while I have reviewed the document, I have not considered it as, or given it the weight of, an affidavit (see Appeals of D.F., 52 Ed Dept Rep, Decision No. 16,372).

Respondent contends that the appeal must be dismissed because the affidavit of service is defective in that it is not dated, signed, and/or notarized.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  Further, section 275.9(a) requires that the affidavit of service be in substantially the form set forth in that section.  By letter dated July 10, 2015, my Office of Counsel returned petitioner’s petition for failure to contain the verification required by Commissioner’s regulations §§275.5 and 275.6.  The letter indicated that, if a corrected petition was served and filed within two weeks of the date of the letter, the appeal would be deemed to have been initiated on the day a copy of the petition was personally served upon the respondent, which according to the affidavit of service was July 8, 2015.  On July 16, 2015, my Office of Counsel received from petitioner the original petition, together with an affidavit of verification, sworn to on July 14, 2015, and affidavit of service.  However, the new affidavit of service, sworn to on July 16, 2015, indicated that respondent’s district clerk was re-served “on the __ day of July, 2015...” with the date omitted.[2] Petitioners’ counsel subsequently submitted a copy of the original affidavit of service, sworn to on July 16, 2015, with the date completed to read “the 14 day of July, 2015....”  However, despite the addition of the purported date of service, the copy of the original affidavit of service was neither re-signed nor re-notarized.  Thus, the affidavit of service submitted by petitioners, itself, is defective and does not establish that service was properly effected upon respondent in accordance with §275.8(a) of the Commissioner’s regulations.  Because petitioners failed to properly serve and file a corrected petition, no appeal has been initiated by them (see Appeal of C.S., 52 Ed Dept Rep, Decision No. 16,405; cf. Appeal of Carabello, 52 Ed Dept Rep, Decision No. 16,477).  Consequently, because service is defective, the appeal must be dismissed (Appeal of Peppaceno, 55 Ed Dept Rep, 16,807; Appeal of Khan, 51 id., Decision No. 16,287; Appeal of McCarthy, 50 id., Decision No. 16,208; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Although not entirely clear, petitioners appear to assert that respondent’s denial of their request to transfer A.V. to Alleghany was arbitrary and capricious and violated Education Law §§101, 207, 305, and 2801-a; 8 NYCRR §155.17; DASA; and Title VI of the Civil Rights Act of 1964.  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).

Pursuant to Education Law §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 students to schools therein (Matter of Older, et al. v. Board of Ed., 27 NY2d 333; Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of Giovanniello, 44 id. 17, Decision No. 15,081; Appeal of D.D., 38 id. 4, Decision No. 13,970).  A board of education has broad discretion regarding the assignment of students to schools (Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert denied 382 US 905; Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of Teel, 33 id. 309, Decision No. 13,058). Therefore, 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 Ed., 27 NY2d 333; Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of D.D., 38 id. 4, Decision No. 13,970; Appeal of Cullen, 32 id. 179, Decision No. 12,798). Petitioners bear the burden of demonstrating that respondent's action is arbitrary, capricious, or contrary to sound educational policy (Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of Giovanniello, 44 id. 17, Decision No. 15,081).  On this record, I find that petitioners have failed to meet their burden of proof.

Petitioners seek to have A.V. attend the same elementary school attended by her sister, which is outside her attendance zone.  Respondent’s policy #5120 states, in pertinent part, that elementary school students will attend school in the student’s “assigned geographical school area” unless one of the following conditions is met:

1. Changes ordered by the Board of Education due to crowded school conditions or lack of facilities.
2. Change dictated by the recommendation of the Committee on Special Education and approved by the Board of Education.

According to the policy, any change other than (a) or (b), above, must be made in writing, with a thorough description of the request, and submitted to the superintendent for the board’s approval at the next board meeting.

In its verified answer, respondent explains that it adhered to its attendance zone policy of assigning students based on their residence zone, and that the board appropriately decided not to change A.V.’s school assignment because petitioners’ fears regarding potential bullying were speculative and premature.  Indeed, respondent’s June 8, 2015 determination indicated that “[t]here is nothing in [board] policy or regulation which allows for the transfer of students because of conflicts or disagreements the student’s parents had with other parents of students attending the same school building” and that “there have been no further incidents between [petitioners] and the other parents in question since the original incident that occurred back in 2013.”  Based on the record before me, I find that petitioners have not met their burden of showing that respondent acted in a manner that was arbitrary, capricious, or contrary to sound educational policy.

Moreover, there is no evidence in the record that A.V. is being harassed or bullied at West Gates.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Here, petitioners assert only that they are concerned that, like her older sister, A.V. will be subjected to bullying at the school.  Though I am sympathetic to petitioners’ concerns, the fact that their daughter may have difficulty adjusting to her new school, while regrettable, is not a sufficient basis for overturning respondent's decision (see e.g. Appeal of Devico, 53 Ed Dept Rep, Decision No. 16,525; Appeal of B.S., 44 id. 329, Decision No. 15,188; Appeal of Giovanniello, 44 id. 17, Decision No. 15,081).  The record reflects that the school principal and administration are aware of the past incidents involving A.V.’s sister and that A.V.’s sister was given the opportunity to transfer based on petitioners’ concerns at the time.

To the extent petitioners assert claims under DASA with regard to alleged bullying of petitioner A.V. by other parents and the existence of a hostile environment at West Gates based on how she was treated when she took A.V. to West Gates for her kindergarten evaluation, petitioners have failed to meet their burden of proof.  Education Law, Article 2 prohibits the harassment, bullying and discrimination of students by employees or students on school property or at a school function (Education Law §12[1]).  The law does not cover such conduct committed against individuals other than students, such as A.V.’s mother, petitioner in this matter (Appeal of J.A., V, 53 Ed Dept Rep, Decision No. 16,542).

Similarly, an appeal to the Commissioner pursuant to Education Law §310 is an improper forum to adjudicate alleged violations of Title VI of the Civil Rights Act of 1964 (Appeal of W.Z. and A.Z., 55 Ed Dept Rep, Decision No. 16,793; Appeal of Cartagena, 43 id. 267, Decision No. 14,991; Appeal of Finkel, 41 id. 74, Decision No. 14,619).

While I am sympathetic to petitioners’ concerns and their desire that A.V. attend the same school as her sister, there is no legal basis upon which to grant the relief petitioners seek (see Appeal of Y.M., 55 Ed Dept Rep, Decision No. 16,862; Appeal of Kershaw, 37 id. 186, Decision No. 13,837; Appeal of Barbara D. and James D., 34 id. 118, Decision No. 13,252).  I conclude that respondent’s decision in this matter is not arbitrary, capricious, nor contrary to sound educational policy and, therefore, there is no reason to disturb it.

In light of this disposition, I need not address the parties’ remaining contentions.  However, I note that nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by intimidation, harassment and bullying in public schools.

THE APPEAL IS DISMISSED.

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