Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Valley Stream Central High School School District regarding residency.

Decision No. 17,261

(November 17, 2017)

Guercio & Guercio LLP, attorneys for respondent, Christopher W. Shishko, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the determination of the Board of Education of the Valley Stream Central High School District (“respondent”) denying a request for her child (the “student”) to attend a school outside of the attendance zone in which petitioner and the student reside.  The appeal must be dismissed.

Respondent’s district includes three high schools: North High School and South High School, which educate students in grades seven through twelve, and Central High School, which educates students in grades nine through twelve. 

At all times relevant to this appeal, petitioner and the student have resided within respondent’s district.  Prior to the events described in this appeal, petitioner and the student resided at an address located within the attendance zone for South High School.  The student attended South High School for grades seven and eight.

Sometime prior to the start of the student's ninth grade year (i.e., the 2016-2017 school year), petitioner and the student moved to an address located within the attendance zone for Central High School.

In a letter to the superintendent dated July 5, 2016, petitioner requested that the student be allowed to continue to attend South High School.  The superintendent denied this request in a letter dated August 31, 2016.

In a letter dated September 14, 2016, petitioner appealed the superintendent’s determination to respondent.  There is no indication in the record that respondent took any action in response to this letter, and the student attended Central High School for the 2016-2017 school year.

In a letter dated July 29, 2017, petitioner “again request[ed]” that the student be permitted to attend South High School to complete her high school education.  The superintendent denied this request in a letter dated August 10, 2017. 

In a letter to respondent dated August 14, 2017, petitioner stated that she had appealed the superintendent’s determination to respondent last year and that, despite confirmation that her letter has been received, respondent had taken no action.  Petitioner indicated that she would like “somebody to contact [her] asap, to discuss this matter ... in person.”  Petitioner asserts, and the record reflects, that respondent did not respond to this letter at any time prior to this appeal.[1]

By letter dated August 17, 2017, the superintendent informed petitioner that, based on the information petitioner had provided regarding the student’s transfer, the student would be referred to respondent’s Committee on Special Education (“CSE”).  This appeal ensued.  Petitioner’s request for interim relief was denied on September 6, 2017.

Petitioner contends that respondent erred by refusing to grant her request because attendance at South High School is in the best interest of the student.  Petitioner specifically asserts that, since the student began attending Central High School, the student has suffered anxiety, her grades have declined, she has avoided attending class, she has lost her interest in school and extracurricular activities, and frequently visits the school nurse “complaining of various ailments.”  Petitioner further complains that the superintendent did not provide her with any reason as to why he denied her two requests, and that respondent did not respond to her two letters.  Petitioner further claims that respondent granted a similar exception for another district family under similar circumstances.  Petitioner requests a finding that the student is entitled to attend South High School for the remaining two years of high school.

Respondent contends that it acted properly and in conformity with board policy regarding exceptions for students to attend schools outside of their attendance zone.  Respondent further contends that petitioner has failed to state a claim upon which relief may be granted and failed to meet her evidentiary burden.  Respondent also argues that the appeal is untimely, as the superintendent denied petitioner's request on August 31, 2016.  Respondent further objects to the fact that petitioner sought interim relief but did not include the notice required by State regulations.  Respondent seeks dismissal of the petition in its entirety.

Turning first to respondent’s challenge to the timeliness of the appeal, 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).

Respondent contends that the appeal is untimely because petitioner’s request was denied on August 31, 2016, and her August 14, 2017 letter constituted a request for reconsideration which did not toll or otherwise affect the statute of limitations.  While I agree with respondent that a request for reconsideration does not toll the timeframe in which an appeal to the Commissioner must be brought, I disagree with respondent’s characterization of petitioner’s August 14, 2017 letter as a request for reconsideration.  Petitioner’s initial request was made before the student started school at Central High School.  After this request was denied, the student attended Central High School for the 2016-2017 year.  Following the conclusion of this school year, petitioner submitted a second request to enroll the student at South High School based upon the challenges the student encountered during the 2016-2017 school year.  This request was based on new information and, while it sought the same relief as the initial request, it did not simply seek reconsideration of the superintendent’s first determination.  The superintendent subsequently denied petitioner’s second request, and petitioner served the instant appeal within 30 days of this determination.  On these facts, I decline to dismiss the appeal as untimely.

Respondent further objects to the fact that petitioner’s request for interim relief did not contain the requisite notice that a stay was being requested.  To the extent respondent argues that petitioner’s request for a stay should be denied on this basis, such claim is moot because petitioner’s request for interim relief was denied on September 6, 2017.  To the extent respondent seeks dismissal of the petition on this basis, I decline to do so because respondent responded to petitioner’s request for a stay, as well as the petition, and has suffered no prejudice as a result of petitioner’s omission of this notice (see Appeal of Cauley, 34 Ed Dept Rep 443, Decision No. 13,376).

Turning to the merits, a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein. In such cases, a board's discretion is broad (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).

In an appeal to the Commissioner, the 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 (Appeal of White, 48 Ed Dept Rep 295, Decision No. 15,863; Appeal of a Student with a Disability, 48 id. 171, Decision No. 15,828).

Respondent's policy 5110, entitled “School Attendance Areas,” outlines the process by which parents or persons in parental relation may seek to attend a school outside of their attendance zones.  The policy states that “it is the intent of the Board that students zoned for a school in the district may request transfers to another school in the district.”  According to the policy, all such requests must be made in writing and directed to the superintendent.  The policy further states that “[a] request for a waiver may only be made when the student is first eligible to attend school in the Valley Stream High School District...” and that the district must receive requests from incoming seventh graders by February 15 of the students’ sixth grade year.  Parents or persons in parental relation registering their children from a district other than “the Valley Stream districts” must make a waiver request within 45 days of registration.  The policy further outlines detailed procedures which the superintendent must follow “to approve waivers without exceeding the functional capacity of a building,” including a lottery selection procedure.  Finally, the policy notes that parents may appeal a superintendent’s determination regarding a transfer request to respondent “within 10 days,” but specifies that such appeals “shall be limited to the question of whether the lottery selection procedure has been followed.”[2]

Upon review of the record, I cannot conclude that the superintendent's denial of petitioner's request was arbitrary or capricious.  Here, it does not appear that Policy 5110 addresses petitioner's circumstances, where petitioner already resided within the district and relocated to a district residence within a different attendance zone after the student’s sixth grade year.  Therefore, petitioner did not have a right grounded in the plain language of Policy 5110 to request transfer to a school outside of her attendance zone.  Although petitioner makes a conclusory allegation that the district had previously granted a transfer request to another family under similar circumstances, she has not provided any proof in support of this allegation.[3]  Therefore, on this record, I cannot conclude that respondent acted in an arbitrary or capricious manner, or that it abused its discretion in denying petitioner’s request.  However, in light of the policy’s stated intent “that students zoned for a school in the district may request transfers to another school in the district,” I encourage respondent to clarify the scope and/or intent of Policy 5110.

THE APPEAL IS DISMISSED.

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