Appeal of AMIR KHAN, on behalf of his son SHANE, from action of the Board of Education of the Valley Stream Central High School District regarding attendance zones.

Decision No. 17,437

(July 6, 2018)

Guercio & Guercio LLP, attorneys for respondent, Barbara J. Emigholz, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges a determination of the Board of Education of the Valley Stream Central High School District (“respondent”) which denied a request for his son (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 one junior high school (Memorial Junior High School) for grades seven through nine and three high schools:  North High School and South High School, both of 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 within the attendance zone for Memorial Junior High School and Central High School. 

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 from the “Valley Stream elementary districts” by February 15 of the students’ sixth grade year.  For students registering from “outside the Valley Stream districts,” such requests must be made 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.”[1]

By letter dated December 2012, respondent’s superintendent notified parents of incoming seventh-graders of the policy and procedures with regard to requesting a “waiver” to attend a secondary school other than that required by Board Policy 5110, respondent’s policy regarding school attendance zones.  The letter informed parents that the deadline for submission of such waiver for the 2013-2014 school year was February 15, 2013 and that a waiver request would be considered only at the time the student is first eligible to attend the Valley Stream High School District.

In a letter to the superintendent dated March 12, 2013, petitioner stated that “due to lack of knowledge,” he was unaware of the procedures for requesting a waiver and requested that the student be allowed to attend North High School instead of Memorial Junior High School for the 2013-2014 school year beginning in the fall of 2013.  By letter dated April 19, 2013, the superintendent denied petitioner’s request as it was submitted after the deadline proscribed by Board Policy 5110.  Petitioner did not appeal this determination. 

By letter to the superintendent dated July 1, 2014, petitioner again requested a waiver for the student to attend North High School instead of Memorial Junior High School for the 2014-2015 school year.  By letter dated July 25, 2014, the superintendent denied this second request in accordance with Board Policy 5110 because it had not been made upon the student’s first entry into the high school district; i.e., the prior school year (2013-2014).  Petitioner did not appeal this determination. 

By letter dated May 24, 2016, petitioner requested that the student be permitted to attend North High School instead of Central High School for the 2016-2017 school year.  By letter dated June 13, 2016 the superintendent denied this request, again explaining that this request had not been made upon the student’s first entry into the high school district, the 2013-2014 school year, in accordance with Board Policy 5110.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 31, 2016.

Petitioner requests a determination that the student is entitled to attend North High School.  Petitioner attaches a copy of his July 1, 2014 letter to the superintendent as well as a July 7, 2016 letter submitted by a legislator on petitioner’s behalf.  These letters to the superintendent assert that the student’s sibling attends North High School, and that Board Policy 5110 affords preferential transfer treatment to students with siblings enrolled in the desired school.  Petitioner also asserts that transfer to North High School is in the student’s educational and emotional best interest.  Finally, petitioner alleges that he, his spouse, and his parents, who live with them, are experiencing health difficulties.

Respondent contends that the appeal must be dismissed for improper service and as untimely.  Respondent further contends that its determination was reasonable and in conformity with Board Policy 5110.

Respondent 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 August 31, 2016.  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 a Student Suspected of Having a Disability, 57 Ed Dept Rep, Decision No. 17,261; Appeal of Cauley, 34 id. 443, Decision No. 13,376).

Nevertheless, the appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioner’s affidavit of service indicates that he personally served the notice of petition and verified petition on the superintendent.  However, the superintendent avers that he was not personally served with a copy of the petition and, to his knowledge, no person authorized to accept service on behalf of respondent was served.  In an affidavit, a typist clerk avers that she is not authorized to accept service on behalf of the district and that, on August 17, 2016, an individual handed her an envelope and stated “something to the effect that he would like to leave a letter for the [s]uperintendent.”  The “letter” was in fact, the petition in the instant matter.  On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met his burden of proving that proper service was made on respondent (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).  Therefore, the appeal must be dismissed for improper service.

The appeal must also 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15914).  Here Board Policy 5110 permits parents to request a transfer by February 15 of a student’s sixth grade year.  Petitioner submitted a late request on March 12, 2013 during the student’s sixth grade year.  While petitioner submitted subsequent requests, each sought the same relief and was based on the same or similar facts and circumstances (cf. Appeal of a Student Suspected of Having a Disability, 57 Ed Dept Rep, Decision No. 17,261).  However, even assuming that each additional request constituted a new act which restarted the 30-day time limitation, petitioner’s final request for a waiver was denied by letter dated June 13, 2016 and this appeal was commenced on August 17, 2016, sixty-five days later.  Petitioner has not set forth good cause, or any cause, for the delay in the petition as required by 8 NYCRR §275.16.  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.  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 (Education Law §§1709(3) and (33), and 1903).  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, 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Upon review of the record, I cannot conclude that the superintendent’s denial of petitioner’s waiver requests were arbitrary or capricious.  On or about December 12, 2012, petitioner was notified of the policies and procedures regarding transfer requests made in accordance with Board Policy 5110, including the deadline for submitting the request and the fact that a transfer request may be made only when a student is first eligible to attend school in the Valley Stream Central High School District.  Petitioner’s son was first eligible to attend respondent’s school district in the 2013-2014 school year which means that a transfer request was due by February 15, 2013.  Petitioner did not submit a transfer request by February 15, 2013 and, therefore, failed to comply with the deadline established by Board Policy 5110.  Petitioner’s subsequent transfer requests were barred by the terms of Board Policy 5110 and thus, the superintendent lacked discretion to consider them.  Petitioner does not allege, and the record does not show, that Board Policy 5110 or its deadline are arbitrary or capricious (Appeal of Argueta, 53 Ed Dept Rep, Decision No. 16,618; Appeal of Araneo, 45 id. 325, Decision No. 15,336).  Therefore, on this record I cannot conclude that respondent acted in an arbitrary and capricious manner, or abused its discretion in denying petitioner’s request.

THE APPEAL IS DISMISSED.

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