Appeal of L.M., on behalf of her son L.M., from action of the Board of Education of the Northport-East Northport Union Free School District regarding educational services.

Decision No. 17,208

(October 4, 2017)

Ingerman Smith, L.L.P., attorneys for petitioner, Susan M. Gibson, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the refusal of the Board of Education of Northport-East Northport Union Free School District (“respondent”) to permit her son to attend its gifted and talented program.  The appeal must be dismissed.

Petitioner’s son attended respondent’s schools for the 2009-2010 school year and participated in the district’s gifted and talented program called INVESTIGATE. 

In January 2010, petitioner informed respondent of her decision to home school L.M. pursuant to Education Law §3602-c(2-c).  However, respondent’s Assistant Superintendent for Instruction and Administration (“superintendent”) permitted L.M. to continue in the INVESTIGATE program for the remainder of the school year. 

By letter dated August 10, 2010, petitioner informed respondent’s superintendent of her intention to home school L.M. for the 2010-2011 school year and she requested that L.M. again be permitted to participate in the INVESTIGATE program.  By letter dated August 13, 2010, respondent’s superintendent denied her request. 

Thereafter, petitioner annually informed respondent’s superintendent of her intention to home school L.M. for the 2010-2011 school year and for the 2011-2012 school year and requested that L.M. be permitted to participate in the INVESTIGATE program.  Respondent’s superintendent denied her requests and the student did not participate in the program in either school year.

Petitioner subsequently requested that L.M. be permitted to participate in the INVESTIGATE program for the 2012-2013 school year.  Respondent’s superintendent denied her request and this appeal ensued.  Petitioner’s request for interim relief was denied.

Petitioner alleges that pursuant to Education Law §3602-c and the New York State Department of Education’s website, her son is entitled, as a non-public school student, to participate in the INVESTIGATE program, notwithstanding the fact that he is home-schooled.

Respondent alleges that the petition fails to state a claim upon which relief may be granted and that its decision complies with applicable law and is proper. 

Initially, I note that petitioner’s reply is untimely and contains material that should have been submitted with her petition.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).  Respondent served its answer by mail on July 2 and petitioner’s reply should therefore have been served no later than July 16.  Petitioner served her reply on July 17 and, therefore, it is untimely. 

Moreover, the reply consists of material that goes beyond the scope permitted by the Commissioner’s regulations.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, to the extent petitioner’s reply contains new material and exhibits in support of allegations set forth in her petition that should have been submitted with the petition, those portion’s of the reply would not have been considered as part of the record in this appeal even if the reply were timely.

Further, additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  Petitioner submitted a supplemental affidavit and new exhibits for consideration.  Petitioner asserts that the affidavit and exhibits are needed to clarify her position because she was not permitted to present oral argument.  However, the application does not provide satisfactory explanation why such information could not have been provided in the petition.  Therefore, I have not considered petitioner’s additional submission.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner requested that her son be permitted to participate in INVESTIGATE for the 2012-2013 school year.  Petitioner’s request for interim relief was denied and the school year ended, rendering her claims moot.

Even if the appeal was not moot, it would be dismissed on the merits.  The dual-enrollment provisions in Education Law §3602-c that authorize partial attendance at a public school by nonpublic school students for the purpose of obtaining instruction in the areas of occupational and vocational education, gifted education and educating students with disabilities, do not apply to home-schooled students (Appeal of Ando, 45 Ed Dept Rep 523, Decision No. 15,403; Appeal of Pope, 40 id. 473, Decision No. 14,530; see also Questions and Answers on Home Instruction, New York State Education Department (revised 2009) (question 20).  Pursuant to Education Law §3602-c, instruction in a gifted program may be furnished to students enrolled in nonpublic schools located in the school district.  L.M. is a home-instructed student not enrolled in a nonpublic school.  Therefore, the exception is not applicable to him (Appeal of Ando, 45 Ed Dept Rep 523, Decision No. 15,403; Appeal of Pope, 40 id. 473, Decision No. 14,530).

In support of her claim, petitioner erroneously relies on Education Law §3602-c(2-c), arguing that it permits students in home instruction to access all services set forth in Education Law §3602-c, including gifted instruction.  However, Education Law §3602-c(2-c) applies only to the education of students with disabilities who have an individualized education program.  That circumstance is not presented in this appeal.  Thus, I cannot conclude that respondent’s determination was improper.

THE APPEAL IS DISMISSED.

END OF FILE