Decision No. 12,887

(February 17, 1993)

SOBOL, Commissioner.--Petitioners appeal from respondents' decision to place petitioner Kendrick in the Monroe I Board of Cooperative Educational Services (BOCES) instead of his local high school. The appeal is dismissed.

Petitioner James Kendrick, now 18 years old, enrolled in respondents' school district in January 1990. In December 1990, he was suspended from school for the remainder of the school year for possession and sale of marijuana to another student at the high school. James did not attend school in respondents' district during the 1991-92 school year because he was incarcerated for ten months. Upon his release in March 1992, James attended school in the West Irondequoit school district, where he resided at the time. In August 1992, he moved back to respondents' school district and sought admission to the local high school. On September 1, 1992, respondent Ronald Marro, the assistant superintendent, determined that, rather than place James in the high school, he should be placed in the "World of Work" program in BOCES (the "program"). The program is an alternative education program for non-disabled students who have demonstrated an inability to profit from the regular school day program. The program offers a class size of 12 or fewer students per teacher, with modified schedules to give students work experience while working toward a local high school diploma.

In a September 2, 1992 letter from respondent Marro, James was informed that he could request a hearing before the superintendent. Instead, on September 22, 1992, petitioners' attorney spoke with respondent superintendent Kehoe, who confirmed the decision to place petitioner in BOCES. The parties agree that the BOCES placement was the initial placement and not a transfer. This appeal ensued. Pending the outcome of this appeal, respondents have been providing James with home tutoring.

Petitioners contend that pursuant to Education Law '3202 James is entitled to attend his local high school, since the high school and not the BOCES, is the school within his district. Petitioners seek compensatory education from September 9, 1992 until October 16, 1992, when respondents commenced home tutoring. Respondents assert that the program is appropriate and complies with Education Law '3202. Further, they argue that the placement is authorized by Education Law '1709.

Petitioners claim that respondents violated Education Law '3202 by refusing to allow the student to attend the local high school is without merit. Education Law '3202 entitles a person over five and under twenty-one, who has not received a high school diploma, to attend the public schools in the district in which he or she resides. BOCES were established pursuant to Education Law '1950 to serve the regional needs of their component school districts. As such, a BOCES must be considered part of the component district for purposes of Education Law '3202. Further, since Education Law '3202 recognizes the right to earn a local high school diploma, the placement would have to extend to the student such opportunities. Since the East Irondequoit School District is a component district of the Monroe I BOCES, and the record indicates that the "World of Work" program offers students the opportunity to earn a local high school diploma, I find the placement offered consistent with Education Law '3202.

In addition, Education Law '1709(3) authorizes a board of education to regulate the admission of pupils and their transfer from one class or department to another. Consistent with that authority is the power to place students. Therefore, absent evidence that the board's actions were arbitrary or capricious, I will not substitute my judgment with respect to student placement (Matter of Ferran, 21 Ed Dept Rep 473; Matter of Boussios, 18 Ed Dept Rep 590). A school board's transfer to assist a student who has a manifest inability to adjust to a particular program is consistent with sound educational policy (Matter of Ferran, supra; Matter of Bridges, 12 Ed Dept Rep 154).

The record establishes that James failed two courses during the 1989-90 school year at East Irondequoit, and passed no courses in the 1990-91 school year. In the 1991-92 school year, while attending school in West Irondequoit, James failed four courses and dropped a summer course there as well. Notably, with so few credits, this student at 18 years of age would have been in classes with sixteen year olds if he had attended the East Irondequoit High School. In addition to his academic deficiencies, this student's history of disciplinary problems constitutes legitimate cause for concern. For example, in deciding his placement, it was proper for respondents to consider the student's possession and sale of marijuana, his incarceration, his attendance record and his altercation with a coach at the school during the summer of 1992.

Moreover, despite petitioners' allegations, I find no evidence that respondents' decision to place the student at BOCES was punitive. To the contrary, consistent with the record, I find the decision based upon consideration of legitimate concerns including the student's age, his academic standing and his prior difficulties adjusting to a traditional high school setting. Nor do I find the "World of Work" program inferior, in any way, to the regular educational program. Instead, with its small classes, its opportunity to earn a local high school diploma and gain work experience, I find that respondents have offered this student an instructional program tailored to meet his needs. Additionally, despite petitioners' concerns, consistent with State regulations, this student may participate in extra-curricular activities at the local high school while attending BOCES. Accordingly, I find respondents' decision to place petitioner Kendrick in the program neither arbitrary nor capricious, nor contrary to Education Law '3202.

Petitioners' request for compensatory education from September 9, 1992 to October 16, 1992 must be denied. Since respondents have not deprived petitioner Kendrick of his right to an education, there is no basis to consider his claim for compensatory education.

THE APPEAL IS DISMISSED.

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