Appeal of L.S., on behalf of her child A.S., from action of the New York City Department of Education regarding educational placement.

Decision No. 17,784

(November 7, 2019)

Georgia M. Pastana, Acting Corporation Counsel of the City of New York, attorneys for respondents, Chlarens Orsland, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the determination of the New York City Department of Education[1] (“respondent” or “DOE”) that her child, A.S. (“the student”), was provided an adequate alternative school based upon his request for a transfer due to his medical condition.  The appeal must be dismissed.

On February 23, 2019, the student was seriously injured in an accident that required extensive spinal surgery.  The student’s treating doctor recommended that the student be permitted to transfer to a new school that was smaller than his current school, within walking distance of his residence, and that possessed an elevator.

Pursuant to Chancellor’s regulation A-101, parents “may request a transfer for a child to address a need for a reasonable accommodation for a disability.”  On May 17, 2019, petitioner submitted a transfer request on behalf of the student to Leon M. Goldstein High School for the Sciences (“Goldstein”).

On or about June 2019, respondent denied petitioner’s transfer request to Goldstein.  However, later respondent did approve the student’s transfer to Abraham Lincoln High School (“Abraham Lincoln”), which respondent asserts is within walking distance of the student’s residence, has fewer students than his previous school, and contains an elevator.  This appeal ensued.

Petitioner contends that respondent denied her medical transfer request “unreasonably and without explanation.”  Petitioner further contends that James Madison High School (“James Madison”), where the student is assigned to attend, cannot address the student’s physical needs.  Petitioner further asserts that Goldstein is “a safe 15-20” minute walk from her home; convenient due to its proximity to petitioner’s workplace; and otherwise appropriate for the student.  Petitioner seeks an order granting her request for the student’s transfer to Goldstein.

Respondent contends that it granted petitioner’s medical transfer request, that Abraham Lincoln is an appropriate school that can meet the student’s needs, and that petitioner does not have the right to select the particular school which the student should attend.

First, I must address two procedural issues.  Petitioner submitted a “Demand for a Verified Bill of Particulars” dated August 23, 2019, annexed to her reply.  An appeal to the Commissioner under Education Law §310 is appellate in nature and does not provide for discovery (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Krantz, 38 id. 485, Decision No. 14,077; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040).  Therefore, I have not considered petitioner’s submission.

Additionally, petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Turning to the merits, a board of education of a city school district has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (see e.g. Education Law §§1709(3), (33); 2503(1)).  In such cases, a board’s discretion is broad, and a board’s decision will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy.  (see Matter of Older, et al. v. Bd. Of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2D 333 [1971]; Appeal of Khan, 58 Ed Dept Rep, Decision No. 17,437; Appeal of P.C. and K.C., 57 id., Decision No. 17,337; Appeal of Fettinger, et al., 47 id. 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).

In respondent’s district, students apply to attend high school, listing the names of up to 12 high schools in order of preference.  The student completed such an application, identifying Goldstein as his first choice and James Madison as his second choice.  Respondent assigned the Student to James Madison.  On May 17, 2019, petitioner filed a request asking for a medical transfer to Goldstein.  As indicated above, respondent denied petitioner’s request for a transfer to Goldstein and granted petitioner’s request for a medical transfer to Abraham Lincoln.

I further find respondent’s determination is rational and supported by the record.  The student’s treating doctor recommended that the student transfer to a school:  (1) that was less populated; (2) with an elevator; (3) located within walking distance of the student’s residence.[2]  According to respondent, Abraham Lincoln has approximately 2,000 students, which is approximately 50 percent of the population of the student’s previously assigned school, James Madison.  Respondent further indicates that Abraham Lincoln is 1.3 miles from petitioner’s house and has elevators.  Thus, the record demonstrates that respondent considered the student’s transfer request and approved his transfer to a school that addressed the treating physician’s concerns.

On appeal, petitioner does not address how Abraham Lincoln cannot meet the student’s needs, instead emphasizing the positive characteristics of Goldstein.  Petitioner does not argue, for example, that Abraham Lincoln is not “small” enough to meet the student’s needs or that it is not located within “walking distance” of her home.[3]  Therefore, the record demonstrates that respondent considered and approved petitioner’s medical transfer request and further, selected a school that satisfied the treating physician’s concerns.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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