Decision No. 14,262

(December 15, 1999)

MILLS, Commissioner.--Petitioner presents numerous complaints with respect to the manner in which the Board of Education of the West Canada Valley Central School District ("respondent") operates its interscholastic athletic program, and challenges the denial of his request that his daughter Ainslee be allowed to pass directly from the seventh grade to the ninth grade for the current school year. The appeal must be dismissed.

Petitioner is a resident of the West Canada Valley Central School District, and is the parent of two daughters, Cayenne, currently a tenth grader, and Ainslee, currently an eighth grader. It appears that petitioner's daughters have attended district schools since September 1996.

Petitioner complains about many aspects of the district's interscholastic athletic program, in which his daughters have participated. He presents numerous complaints about the amount of playing time his daughter Cayenne received in the modified and junior varsity athletic programs, and complains that his daughter Ainslee should have been selected as a member of the modified girls' softball team as a seventh grader in the spring of 1999. He claims that the coaches and administrators of the interscholastic athletic program, acting in conjunction with respondent, apply a policy of favoritism which benefits the children of teachers, administrators, and board members, over the interests of other students.

It appears that petitioner, prior to January 1999, met with the district's principal and superintendent to request that his daughter Ainslee be advanced directly from the seventh grade to the ninth grade for the current school year. After this meeting, petitioner again met with the principal and superintendent to complain about favoritism in the athletic program. Petitioner filed a written complaint with the superintendent on March 13, 1999, which he claims resulted in retaliation against his daughter Ainslee in her exclusion from the modified girls' softball team that spring.

Petitioner asks for numerous forms of relief, including sanctions and/or removal of a board member, the superintendent, the principal, several coaches, and the athletic director. Among other forms of relief demanded, he requests that I order the school district to formulate and implement detailed policies regarding the conduct of tryouts for athletic teams and the structure of the interscholastic athletic program. He also asks for an order that his daughter Ainslee be placed in the ninth grade for the current school year.

Respondent generally denies any wrongdoing, asserts that its athletic programs are properly conducted, and asserts its proper discretion in the operation of its athletic program in general.

The appeal must be dismissed to the extent that it seeks removal or sanction of any individual school officer, employee, or board member. No individual has been properly named as a respondent in the notice of petition or petition, and the notice of petition fails to state that removal of any individual is sought, as required by 8 NYCRR "277.1. The individuals against whom petitioner seeks relief are clearly necessary parties, as their interests would be adversely affected if I were to decide in petitioner's favor (Appeal of Rider, 39 Ed Dept Rep ______, Decision No. 14,238; Appeal of Andela, 38 id. 249, Decision No. 14,026). To make an individual a party to an appeal, that person must be named as a respondent, served with the petition and notice of petition, and afforded an opportunity to defend his or her interests (Appeal of Board of Education of the Ardsley UFSD, 38 Ed Dept Rep 221, Decision No. 14,019). It is the notice of petition which alerts a party that he or she is required to appear in the appeal and answer the allegations contained in the petition (Appeal of Chechek, 37 Ed Dept Rep 624, Decision No. 13,943; Appeal of Osterman, 30 id. 290, Decision No. 12,469).

With respect to petitioner's demand that I "[I]mpose such punishments against the West Canada Valley School Board of Education as deemed appropriate . . .," Education Law "306 limits my authority to the removal of individual board members where a wilful violation of law, regulation or Commissioner's decision or order is specifically alleged and proven against an individual board member after a hearing. Commissioner's Regulation "277.1 requires very specific allegations of wrongdoing, and a particular form of the notice of petition. Neither of those elements is present here.

With respect to petitioner's request that I institute or require certain policies and procedures with respect to athletic tryouts, statistical data, determination of athletic rosters and playing time, the structure of the modified and junior varsity teams, and other related relief, this is clearly beyond the scope of my authority. Education Law "1709 vests in local boards of education the functions of governance and policymaking. The Commissioner of Education's authority in such matters is appellate in nature, as set forth in Education Law "310. I decline to prescribe detailed policies and procedures which are clearly within the scope of the authority of local boards of education.

Petitioner also asks that, if his children should transfer to another school district, respondent shall not advise the new school district of the filing of this appeal, its contents, etc. This is clearly a hypothetical situation, and, in any event, the petition and pleadings filed with the Commissioner in this matter are a matter of public record. Petitioner also asks that I affirmatively prevent any retaliation by respondent against his children if they remain in the district. There is no evidence in the record that such events are likely to occur, and I decline to issue an order at this time based upon unsubstantiated suppositions. However, I remind respondent that any such retaliation would be clearly improper, and I presume that it will not occur.

Finally, with respect to petitioner's request that his daughter Ainslee be allowed to go directly from the seventh grade to the ninth grade, Education Law "1709(3) vests in a board of education the power and duty to "prescribe the course of study by which the pupils of the school shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant." Boards of education have substantial discretion in this particular area, and their determinations as to the grade level placement of students will rarely be set aside (Appeal of Cheek, 35 Ed Dept Rep 378, Decision 13,577; Appeal of Wertis, et al., 35 id. 312, Decision No. 13,553; Appeal of Locorotondo, 34 id. 305, Decision No. 13,321; Appeal of Landau, 34 id. 79, Decision No. 13,239). In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Landau, supra; Appeal of Singh, 30 Ed Dept Rep 284, Decision No. 12,467; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125).

It is clear that petitioner's daughter Ainslee is an excellent student, who finished the seventh grade with a very high academic average. However, I note that as an eighth grader she has been accelerated this academic year in two subjects, Course I Mathematics and Latin I. These courses will provide her with two units of high school credit by the end of the eighth grade. Respondent indicates that its practice is to accelerate students at the middle school level in accordance with Commissioner's Regulations, and respondent's middle school principal is not aware of any situation where a student completely omitted the eighth grade, including English 8, Science 8, Technology 8, Home and Career Studies 8, and Health 8. Under these circumstances, I do not find respondent's decision either arbitrary or capricious.

Although I dismiss the appeal, I understand petitioner's concern with respect to the conduct of interscholastic athletics in respondent's district. It is clear from correspondence in the record that respondent has been made fully aware of petitioner's concerns, and it has stated that it will make every effort to ensure that favoritism is not a practice either condoned or approved in the district. I trust that respondent is pursuing these efforts.

THE APPEAL IS DISMISSED.

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