Appeal of R.L.R.K., JR., on behalf of his son R.E.L.K., from action of the Board of Education of the City School District of the City of Oneida and Superintendent Ronald Spadafora regarding educational placement.

Appeal of R.L.R.K., JR., on behalf of his son R.E.L.K., from action of the Board of Education of the City School District of the City of Oneida and Superintendent Ronald Spadafora regarding educational placement.

Decision No. 17,390

(May 16, 2018)

Ferrara Fiorenza, P.C., attorneys for respondents, Joseph J. Bufano, Esq., of counsel

ELIA, Commissioner.--In two separate appeals, petitioner challenges a determination of the Board of Education of the City School District of the City of Oneida (“board”) and Superintendent Ronald Spadafora (collectively “respondents”) to place his son in Algebra II/Trigonometry and Geometry classes for the 2015-2016 school year and to deny credit for a college-level Pre-Calculus course he took during the 2014-2015 school year.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Prior to commencing the instant appeals, petitioner commenced three previous appeals regarding his son’s (the “student”) educational placement (see Appeals of R.L.R.K., Jr., 55 Ed Dept Rep, Decision No. 16,893).  On April 14, 2016, I issued a decision dismissing petitioner’s first three appeals on various grounds (Appeal I, Appeal II, and Appeal III) (see Appeals of R.L.R.K., Jr., 55 Ed Dept Rep, Decision No. 16,893).  The instant appeals stem from and reiterate many of the facts laid out in the first three appeals, which are incorporated by reference herein.  In sum, petitioner initially challenged respondent board’s July 1, 2014 decision to place the student in Algebra I for the 2014-2015 school year with the option of enrolling him in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year, rather than allowing him to challenge and earn credit by examination for the Integrated Algebra, Geometry, and Algebra II/Trigonometry Regents examinations.  Petitioner asserts that “[respondents’] decision to place [the student] in Algebra I in the 2014-2015 school-year [was] the subject of [Appeal I and Appeal II].”  Thereafter, the student again requested to challenge and earn credit by examination for the Geometry Regents examination and to be removed from Algebra I.  Respondents’ denial of that request was the subject of Appeal III (see Appeals of R.L.R.K., Jr., 55 Ed Dept Rep, Decision No. 16,893).  

In January 2015, the student took and received a “B” in Pre-Calculus at Herkimer County Community College (“HCCC”).  According to petitioner, the student completed seventh grade in June 2015, and was enrolled for the 2015-2016 school year as an eighth-grade student in Geometry and Trigonometry courses pursuant to the plan devised by the district and upheld by the board (see Appeals of R.L.R.K., Jr., 55 Ed Dept Rep, Decision No. 16,893).  According to petitioner, in August 2015, the student completed and received a “B” in Calculus I at HCCC.  By letter to the superintendent dated August 24, 2015, petitioner requested that, “[b]ased on newly demonstrated scholarship and newly disclosed facts,” which included the student’s receipt of a grade of “B” in Calculus I at HCCC, that the student “be removed from eighth grade mathematics for the [2015-2016] school year.”  The student’s schedule was subsequently posted on September 1, 2015, indicating that the student had been placed in Geometry and Algebra II/Trigonometry for the 2015-2016 school year.  By letter to the principal dated September 2, 2015, petitioner requested clarification as to whether the posting of the student’s schedule constituted a response to petitioner’s August 24, 2015 letter.  By email dated September 4, 2015, the principal responded as follows:

It has been decided that [the student] will follow the schedule I sent to you on September 1st.  In summation, [the student] will spend his first 4 periods in the HS taking CC Geometry, CC Algebra II, Living Environment (with Lab), and P.E.  Transportation has been arranged for [the student] to be returned to the MS where he will be taking Spanish, SS, ELA, and Health.

If [the student] finishes the school year with a class average (4 marking periods averaged together) of 90% or better for CC Geometry and CC Algebra II, and earns a 90%, or better, for both Regents Exams [the student] will be allowed to achieve credit through examination for Pre-Calculus in the summer of 2016.  If [the student] is successful with his challenge for these classes he can enroll in AP Statistics and AP Calculus as a 9th grade student in the fall of 2016.

By letter dated October 1, 2015, petitioner requested a determination on his “appeal to overturn the [a]dministration’s decision to place [the student] in both Geometry and Trigonometry and transport him to the high school over my objections....”  By email dated October 14, 2015, the superintendent responded on behalf of respondent board that the student would remain enrolled in the Geometry and Algebra II classes at the high school.  According to respondents, the student refused to complete any coursework or homework for either class and was in danger of failing both courses.

The fourth appeal (Appeal No. 20325) (“Appeal IV”) ensued and petitioner’s request for interim relief immediately removing the student from Geometry and Trigonometry classes was denied on December 11, 2015.

By email to the principal and school counselor dated October 17, 2015, petitioner advised that the student had completed and received a “B” in Pre-Calculus at HCCC and requested that Pre-Calculus be placed on the student’s transcript.  By email dated October 26, 2015, the principal informed petitioner that his request for dual credit was denied for various reasons.  By letter to respondent board dated October 26, 2015, petitioner appealed the decision to deny the student credit for the HCCC Pre-Calculus course.  By email dated January 12, 2016, the superintendent denied petitioner’s request for Pre-Calculus course credit on behalf of the board.  The fifth appeal (Appeal No. 20369) (“Appeal V”) ensued.

In Appeal IV, petitioner challenges the board’s decision to place the student in Geometry and Algebra II/Trigonometry for the 2015-2016 school year.  Petitioner requests that the student’s record for both Geometry and Trigonometry be expunged from the student’s record.  

In Appeal V, petitioner challenges the board’s determination not to award the student credit for the HCCC Pre-Calculus course.  Petitioner requests that Pre-Calculus be placed on the student’s high school transcript as transfer credit. 

Respondents argue that Appeal IV and Appeal V must be dismissed as untimely, procedurally improper, and barred by Appeal I, Appeal II, and/or Appeal III in that they are attempted amended responses to respondents’ answers in Appeal I, Appeal II, and/or Appeal III.  Respondents further argue that Appeal IV and Appeal V fail to state a claim for which relief may be granted and that respondents’ denials of petitioner’s requests were neither arbitrary nor capricious and were discretionary and for the student’s educational benefit. 

I must first address the procedural issues.  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).  Respondents object to the reply in Appeal IV as being outside the proper scope of a reply because the reply in Appeal IV contains new allegations not contained in the petition and buttresses allegations made in the petition.  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Pursuant to §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later.  If the last day for service of any pleading or paper subsequent to the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR §275.8[b]).  Here, the answer was served on December 14, 2015 and the reply in Appeal IV was served on January 25, 2016.  Therefore, in accordance with §276.4(a) of the Commissioner’s regulations, petitioner had until February 4, 2016 to serve his memorandum of law.  Petitioner’s 69-page memorandum of law in Appeal IV was not served until February 19, 2016.  I note that the late filing of memoranda of law may be permitted by the Commissioner, in his or her sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (8 NYCRR §276.4[a]).  By letter dated February 19, 2016, petitioner advised my Office of Counsel that, due to a typographical error in his calendar, he missed the deadline for requesting an extension on the submission of his memorandum of law, and requested that his late memorandum of law “be accepted in the interest of justice.”  Petitioner does not explain why the memorandum of law could not have been submitted earlier.  Therefore, I have not considered the memorandum of law proposed to be filed in Appeal IV in determining this appeal (see Application of Paladino, 53 Ed Dept Rep, Decision No. 16,594).

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).  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). Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).

 Respondents contend that Appeal IV must be dismissed as untimely because that appeal challenges the board’s July 1, 2014 decision to place the student in the Algebra I class for the 2014-2015 school year with the option of enrolling him in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year, rather than allowing him to challenge and earn credit by examination for the Integrated Algebra, Geometry, and Algebra II/Trigonometry Regents examinations.  According to petitioner’s affidavit of service, the petition in Appeal IV was served on November 24, 2015.  Therefore, Appeal IV must be dismissed as untimely to the extent it challenges the board’s July 1, 2014 determination.

In his petition, petitioner claims that Appeal IV is timely because the students “demonstrated Calculus scholarship [over the summer of 2015] is a new fact that must be considered in his mathematics placement.”  In his reply, petitioner further asserts that he is not challenging in Appeal IV the July 1, 2014 determination but rather respondents’ ultimate decision to place the student in Geometry and Algebra II/Trigonometry during the 2015-2016 school year.  Petitioner argues that “[r]espondents cannot reasonably claim that the final decision to place [the student] in Geometry and Trigonometry was made in June, 2014, when they themselves have changed their minds on what the appropriate class for [the student] should be in both the 2014-2015 school year and the 2015-2016 school year at least seven times in the last two years (and have never considered his college coursework).”  The record indicates that, by email dated May 14, 2015, the principal notified petitioner that the student would be scheduled for Geometry and Algebra II/Trigonometry for the 2015-2016 school year.  By letter to the superintendent dated August 24, 2015, petitioner requested, “[b]ased on newly demonstrated scholarship and newly disclosed facts,” which included the student’s receipt of a grade of “B” in Calculus I at HCCC, that the student “be removed from eighth grade mathematics for the [2015-2016] school year.” 

On September 1, 2015, the student’s schedule was subsequently posted, indicating that the student had been placed in Geometry and Algebra II/Trigonometry for the 2015-2016 school year.  By letter to the principal dated September 2, 2015, petitioner requested clarification as to whether the posting of the student’s schedule constituted a response to petitioner’s August 24 letter.  As noted above, by email dated September 4, 2015, the principal responded as follows:

It has been decided that [the student] will follow the schedule I sent you on September 1st.  In summation, [the student] will spend his first 4 periods in the HS taking CC Geometry, CC Algebra II, Living Environment (with Lab), and P.E.  Transportation has been arranged for [the student] to be returned to the MS where he will be taking Spanish, SS, ELA, and Health.

If [the student] finishes the school year with a class average (4 marking periods averaged together) of 90% or better for CC Geometry and CC Algebra II, and earns a 90%, or better, for both Regents Exams [the student] will be allowed to achieve credit through examination for Pre-Calculus in the summer of 2016.  If [the student] is successful with his challenge for these classes he can enroll in AP Statistics and AP Calculus as a 9th grade student in the fall of 2016.

By letter dated October 1, 2015, petitioner requested a determination on his “appeal to overturn the [a]dministration’s decision to place [the student] in both Geometry and Trigonometry and transport him to the high school over my objections, as outlined in my September 8, 2015 email.”  By email dated October 14, 2015, the superintendent responded on behalf of respondent board that the student would remain enrolled in the Geometry and Algebra II classes at the high school.  Therefore, although the record is not entirely clear on when the ultimate determination was made to enroll the student in Algebra II/Trigonometry and Geometry for the 2015-2016 school year, the principal’s September 4 email confirms that a concrete decision had been made by then - and possibly as early as May 2015 – and the superintendent on behalf of respondent board confirmed the decision in an email on October 14, 2015.  Accordingly, even if I view the record most favorably to petitioner, he was required to commence an appeal from respondents’ alleged “failure to consider [the student’s] success in Calculus in August 2015 when placing [him] in Geometry and Trigonometry,” which petitioner acknowledges is “basis” for Appeal IV, within 30 days of October 14, 2015.[1]  However, the appeal was not commenced until November 24, 2015, more than 30 days after petitioner’s receipt of the determination and petitioner has not established good cause for the delay.  Therefore, Appeal IV must be dismissed as untimely. 

With respect to Appeal V, petitioner challenges the superintendent’s January 12, 2016 decision to deny transfer credit to the student for the HCCC Pre-Calculus course.   The record indicates that petitioner received the January 12, 2016 decision that same day because he responded by email nearly one hour after it was sent.  Accordingly, petitioner was required to serve an appeal from that decision on or before February 11, 2016.  The record indicates that, by letter dated February 9, 2016, my Office of Counsel returned petitioner’s original petition for lack of an affidavit showing personal service upon respondents as required by 8 NYCRR §275.8(a).  Thereafter, petitioner re-filed the petition together with an affidavit of service showing that the petition was served on respondent board on February 16, 2016.  No good cause for this delay was set forth in the petition.  In his reply, petitioner asserts that he “filed” Appeal V on February 5, 2016, but his process server “made a typographical error in the affidavit of service.”  However, as discussed above, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Therefore, Appeal V must be dismissed as untimely. 

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEALS ARE DISMISSED.

END OF FILE