Appeal of MELISSA MURPHY, on behalf of her daughter KIRRA MURPHY, from action of the Board of Education of the West Babylon Union Free School District regarding student placement.

Decision No. 17,950

(December 21, 2020)

Van Nostrand & Martin, attorneys for respondent, William C. Morrell, Esq., of counsel

ROSA, Interim Commissioner.--Petitioner appeals a determination by the Board of Education of the West Babylon Union Free School District (“respondent”) denying her request to enroll her daughter Kirra (“the student”) in the Long Island High School for the Arts (“LIHSA”), a program offered through the Board of Cooperative Educational Services of Nassau County (“Nassau BOCES”).  The appeal must be dismissed.

During the 2018-2019 school year, the student attended seventh grade in respondent’s district.  The record indicates that, between April and June 2019, petitioner contacted several district employees and inquired about the process for enrolling the student in a half-day arts program at LIHSA for her ninth-grade year (i.e., the 2020-2021 school year).  Eventually, petitioner presented her request to respondent at a board meeting on August 27, 2019.  By email dated August 29, 2019, respondent’s assistant superintendent for curriculum and instruction advised petitioner that respondent had denied her request based on the district’s “current curriculum offerings,” the “services offered by [the] local” Western Suffolk Board of Cooperative Educational Services, and the “costs associated with LIHSA.”  The record also includes a letter dated September 19, 2019, by which respondent’s district clerk advised petitioner of the same.  This appeal ensued.  Petitioner’s request for interim relief was denied on February 11, 2020.

Petitioner asserts that the student needs the “kind of educational environment available at LIHSA” because the student is an “extraordinarily talented and creative performing artist” who “intends to pursue a career as a theater artist.”  Petitioner contends that respondent’s denial of her request to enroll the student in LIHSA “unfairly and arbitrarily denied [the student] equal access to a free public school program” as well as “equal access to the appropriate educational program for her academic, artistic and social needs.”  For relief, petitioner requests that respondent permit the student to attend LIHSA’s “half-day ... program for theater arts if she successfully auditions for the program.”

Respondent argues that the appeal must be dismissed, inter alia, as untimely and for failure to state a claim upon which relief may be granted.  Respondent further asserts that it has authority to determine student placement and that its denial of petitioner’s request was neither arbitrary nor capricious.

The appeal must 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. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912). 

The record reflects that respondent informed petitioner that it had denied her request by email dated August 29, 2019.  Although respondent also sent petitioner a letter dated September 19, 2019, informing her of the decision, it is actual knowledge of the facts underlying a claim that begins the 30-day time limitation in which to bring an appeal (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483; Appeal of O’Brien, 51 id., Decision No. 16,316, petition dismissed Matter of O’Brien v. New York State Commr. of Educ. [July 25, 2012], affd 112 AD3d 188 [3d Dept. 2013], appeal dismissed 22 NY3d 1125 [2014], mot for leave denied 23 NY3d 903 [2014], cert denied 574 US 959 [2014]).  Therefore, petitioner’s 30-day window in which to commence the appeal is measured from August 29, 2019, when she first received notice of respondent’s determination.  Because the last day for service fell on Saturday, September 28, petitioner was required to commence her appeal by Monday, September 30, 2019 (8 NYCRR §275.8[a]).  Petitioner did not commence the instant appeal until January 23, 2020, almost five months after respondent’s determination.  Petitioner does not set forth good cause, or any cause, for the delay in the petition (see 8 NYCRR §275.16).  Therefore, the appeal must be dismissed as untimely.[1]

Even if it were timely, the appeal would be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Here, petitioner seeks a determination that respondent must allow the student to attend LIHSA, a program operated by Nassau BOCES, if the student successfully auditions for such program.  Nassau BOCES would be affected by an order requiring it to permit the student to audition and/or enroll in LIHSA.  Therefore, Nassau BOCES is a necessary party, and the appeal must also be dismissed for failure to join Nassau BOCES (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,857; Appeal of G.G., 51 id., Decision No. 16,331).

Finally, I note that, even if petitioner had joined Nassau BOCES as a necessary party, I would lack jurisdiction to grant petitioner’s requested relief.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).  Here, petitioner seeks a determination that respondent allow the student to attend LIHSA “if she successfully auditions for the program.”  Because there is no evidence in the record that the student has in fact auditioned for admission to the program, as required, any adjudication of her right to attend LIHSA would be purely advisory under the circumstances (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,857).

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

THE APPEAL IS DISMISSED.

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