Appeal of THOMAS and THERESA MONTALBANO, on behalf of TRISTA MONTALBANO, from action of the Board of Education of the Sachem Central School District regarding student placement.

Decision No. 17,854

(June 18, 2020)

Ingerman Smith, LLP, attorneys for respondent, Steven A Goodstadt, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioners appeal from a determination of the Board of Education of the Sachem Central School District (“respondent”) regarding educational placement of their daughter (“the student”).  The appeal must be dismissed.

The student and her older sibling have attended school in respondent’s district at all times relevant to this appeal.  As relevant here, respondent asserts that it entertains “hardship” requests for students to attend school outside of their designated attendance zones and that it entertains such requests on a yearly basis.

In 2012, respondent permitted the student’s older sibling to attend schools outside of her attendance zone.  Petitioners allege that respondent made this determination because the older sibling was the victim of bullying.  Respondent also permitted the student to attend kindergarten at the same elementary school as the older sibling in 2013.  Respondent asserts that petitioners requested a hardship exception “on a yearly basis” thereafter and that it granted such requests.  Accordingly, the older sibling attended Nokomis Elementary School, Seneca Middle School, and Sachem High School North, and the student attended Nokomis Elementary School.

The 2018-2019 school year was the student’s final year at Nokomis Elementary School.  In November 2018, petitioners requested that the student be permitted to attend Seneca Middle School for the next three years, beginning with the 2019-2020 school year, and then Sachem High School North for high school.  Though somewhat unclear from the record, it appears that the district initially denied this request.  By letter dated June 3, 2019, petitioners renewed their request for the student to be permitted to attend Seneca Middle School and Sachem High School North.  Based on the record, the district interpreted this letter as an appeal to respondent.

By letter dated August 15, 2019, respondent notified petitioners that it voted to allow the student to attend Seneca Middle School for the 2019-2020 school year.  Respondent stated, in pertinent part, “that this exception [would] only be authorized for the time [the student would] be in middle school” and that it “expect[ed] that this placement [would] allow [the student] the opportunity to become comfortable with her peer environment and confidently move on the Sachem High School East in 9th grade.”  Sachem High School East, according to the record, is the school that the student would ordinarily attend based on her attendance zone.

By email to respondent’s district clerk dated August 22, 2019, petitioners inquired whether the student was authorized to attend Seneca Middle School for only one year or for all three years of middle school.  By email dated August 28, 2019, respondent’s clerk clarified that “[r]esidency exceptions are granted one year at a time” and that respondent’s determination was for only the 2019-2020 school year.  This appeal ensued. 

Petitioners argue that respondent’s “plan” to transfer the student to Sachem High School East once she reaches high school is “unconscionable.”  Petitioners explain that, if the student is required to attend Sachem High School East, she will “be transferred to a school with children ... she does not know.”  Petitioners request that respondent’s August 15, 2019 determination “be vacated” and that the student be permitted to attend Seneca Middle School until she graduates and then attend Sachem High School North until she graduates.

Respondent argues that its decision to grant petitioners’ request for the student to attend Seneca Middle School for the 2019-2020 school year was not arbitrary or capricious.  Respondent further asserts that the appeal is moot because petitioners obtained their requested relief for the 2019-2020 school year.  Finally, respondent argues that the appeal is premature with regard to future school years because the district “makes educational placement determinations on a yearly basis as situations may differ from year to year.”  Respondent thus states that petitioners should continue to make requests on a yearly basis if they believe that the student has a hardship warranting her enrollment in a school located outside of her attendance zone.

First, I must address a procedural issue.  Respondent objects to petitioner’s reply on the ground that it contains new material.  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.

To the extent that petitioners challenge respondent’s determination regarding the 2019-2020 school year, the appeal must be dismissed on the ground that petitioners are not aggrieved.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Here, respondent granted petitioners the relief they requested for the 2019-2020 school year - i.e., that the student be permitted to attend Seneca Middle School.  Accordingly, petitioners are not aggrieved by so much of respondent’s determination as concerns the 2019-2020 school year, and the appeal must be dismissed to this extent.

I further agree with respondent that petitioners’ request for relief for the 2020-2021 school year and beyond is premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  In an affidavit, the district’s assistant superintendent for student support and administration (“the assistant superintendent”) states that the district “reviews requests for enrollment in schools outside a student’s attendance zone on a yearly basis” and “only grants requests for one school year at a time.”[1]  Although petitioners indicate in their reply that this policy is “obviously bogus” because respondent has “guaranteed” that the student’s older sibling “can attend Sachem High School North until she graduates,” petitioners provide no proof of such assertions.  Accordingly, I find that the issue of the student’s placement in future school years is not justiciable at this juncture.  Petitioners may reapply for a hardship exception in the future, and respondent has indicated that it will “review the request and make a determination at that time.”  Therefore, petitioners should reapply on the student’s behalf if circumstances warranting a hardship exception continue to exist.

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

THE APPEAL IS DISMISSED.

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