Appeal of D.C., on behalf of her child, from action of the Board of Education of the Smithtown Central School District and the Nassau County Board of Cooperative Educational Services regarding student placement.

 

Decision No. 18,252

(March 13, 2023)

Sokoloff Stern LLP, attorneys for respondent Smithtown Central School District, Adam I. Kleinberg, Esq., of counsel

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent Nassau County Board of Cooperative Educational Services, David S. Shaw, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Smithtown Central School District (“respondent”) and the Nassau County Board of Cooperative Educational Services (“Nassau BOCES”) denying her request to enroll her child (the “student”) in the Long Island High School for the Arts (“LIHSA”).  The appeal must be dismissed.

This is one of several appeals filed by parents seeking admission to LIHSA on behalf of their children (Appeal of Clark, 61 Ed Dept Rep, Decision No. 18,065; Appeal of Murphy, 60 id., Decision No. 17,950; Appeal of a Student with a Disability, 59 id., Decision No. 17,857).  LIHSA is a career and technical education program offered by Nassau BOCES to students who reside in Nassau and Suffolk Counties.  Students interested in attending LIHSA must submit audition/portfolio materials to the school and be accepted into its program.  The student, who attends respondent’s schools, has a demonstrated interest in the performing arts.

By letter dated August 27, 2021, an attorney representing petitioner wrote to respondent’s superintendent claiming that the student’s educational experience in the district had been “fraught with significant hardship, anxiety, and depression … oriented around struggles with [the student’s] gender identity and sexual orientation.”  The attorney’s letter described alleged instances of bullying, harassment, and discrimination directed at the student by fellow students and staff.  The letter claimed that the district had violated various laws and district policies by failing to properly address the alleged bullying and harassment.  This letter requested various forms of relief, including the student’s enrollment in LIHSA for grades 9-12.  Petitioner’s attorney and district representatives sought to resolve the dispute during the ensuing months but were unable to reach an agreement.

In a letter to the superintendent dated February 2, 2022, petitioner requested that the student, who was in eighth grade, be placed at LIHSA beginning in fall 2022.  By email dated February 28, 2022, respondent informed petitioner that the student was presently ineligible to attend LIHSA because the district only permitted students in grades 11 and 12 to seek enrollment in the program.

By letter dated May 9, 2022, petitioner again requested that the district place the student at LIHSA in fall 2022.  In an email dated May 27, 2022, the superintendent informed petitioner that the district would not place the student at LIHSA as a freshman but would consider enrolling the student therein beginning in grade 11 “in keeping with current district practice.”  This appeal ensued.  Petitioner’s request for interim relief was denied on August 4, 2022.

Petitioner requests that the student be permitted to attend LIHSA in grades 9 through 12. 

Respondent and Nassau BOCES assert that the appeal must be dismissed as untimely.  On the merits, they argue that petitioner has failed to meet her burden of demonstrating a clear legal right to her requested relief. 

I must first address the scope of the record in this appeal.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The timeliness of this appeal hinges upon whether petitioner’s May 9, 2022 request constituted a new request or a request for reconsideration.  The latter would not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). 

In her May 9, 2022 letter, petitioner asked respondent to “reconsider” its decision.  Moreover, in his email of May 27, 2022, the superintendent wrote, “As we have shared previously, we will not be placing [the student] at [LIHSA] as a freshman….” (emphasis added).  Accordingly, petitioner’s May 9, 2022 letter constituted a request for reconsideration that did not extend the time for her to commence the instant appeal (cf. Appeal of Azhagiriswamy, 61 Ed Dept Rep, Decision No. 18,070).  As such, her commencement of this appeal over 90 days after respondent’s February 2022 determination must be dismissed as untimely.[1]

Even if it were timely, the appeal would be dismissed on the merits.  LIHSA is a shared service offered by Nassau BOCES.  To participate in a BOCES service, a component district must enter a contract with BOCES (Education Law § 1950 [4] [d] [4]).  The record reflects that the district “did not enter into [a] contract [with Nassau BOCES] for the provision of educational services for [the district’s] 9th and 10th grade students.”  Absent such a contract, the student has no right to attend LIHSA (Appeal of Clark, 61 Ed Dept Rep, Decision No. 18,065).

In light of this disposition, it is unnecessary to address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE