MILLS, Commissioner.--Petitioner challenges the curriculum used by the Board of Education of the General Brown Central School District ("respondent") to teach the course "Music-Senior Band". The appeal must be dismissed.

Petitioner’s son, Christopher, was a sophomore at respondent’s high school during the 1997-1998 school year. That year, Christopher’s teacher changed the manner in which the senior band course was taught, allegedly by replacing individual instrumental lessons for Christopher and 39 other students with performances in a wind ensemble. Petitioner claims that this arrangement is pedagogically unsound and violates respondent’s curriculum guide.

Petitioner raised these concerns with the principal and superintendent in letters dated May 12, 1998. By letter dated May 15, 1998, the principal responded, stating, among other things, that the wind ensemble was the equivalent of instrumental lesson time and that the curriculum complied with Education Law. Petitioner received no response from the superintendent.

By letter dated June 3, 1998, petitioner then complained to respondent board and on June 9, petitioner made an oral presentation to the board. The board responded to neither the letter nor the presentation. Petitioner commenced this appeal on June 24, 1998.

Petitioner seeks an order directing the reinstatement of instrumental lessons for all members of the wind ensemble; making his son and others similarly situated whole for their loss of instrumental lessons during the last three quarters of the 1997-1998 school year; and restoring the previous year’s band curriculum guidelines.

As a threshold matter, respondent asserts that the appeal is untimely, that petitioner fails to present a clear and concise statement of his claim, and that class representation is not proper. Respondent also claims that it has great discretion in the manner in which the curriculum is taught, as does the individual teacher. Respondent further contends that the group instruction students receive in the wind ensemble is equivalent to the instrumental lessons students previously received, and that the course is being taught consistent with law and its own guidelines.

Before reaching the merits, I will address several procedural issues. Respondent contends that petitioner may not bring this appeal as a class appeal on behalf of all senior band students in the wind ensemble. I agree. A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2[a]). Petitioner has not established that the class is so numerous that joinder would be impracticable. The record indicates that there are only 39 other students in the wind ensemble with petitioner’s son (See, Appeal of Reynolds, et al., 35 Ed Dept Rep 327, Decision No. 13,559, wherein a class numbering 52 did not meet the numerosity requirement). Additionally, the record does not reflect that any of the other students’ parents have complained to respondent. Thus, it also appears that all questions of fact and law are not necessarily common to all members of the potential class (Appeal of Tudor, 38 Ed Dept Rep 591, Decision No. 14,100). Class status is, therefore, denied.

Respondent also contends that the appeal is 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 excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent contends that this appeal is untimely because it was filed more than 30 days after the principal’s May 15, 1998 response to petitioner’s letter. However, the record indicates that petitioner properly attempted to resolve his complaint with respondent prior to bringing this appeal. Petitioner sent a letter to respondent on June 3, 1998 and presented his complaint to it on June 9, 1998. Not receiving any response, petitioner filed this appeal on June 24, 1998, well within 30 days of both the June 3 letter and the June 9 presentation. Therefore, I find the appeal timely.

On the merits, I find that the senior band curriculum complies with State statute and regulation, and is a rational exercise of the respondent’s discretion. Education Law "1709(3) authorizes boards of education to "prescribe the course of study" to be followed in the schools of the district. That authority includes the discretion to determine, within the bounds set by statute and regulations, which classes will be offered in the school district and how they may be taught (Appeal of O’Shaughnessy, 35 Ed Dept Rep 57, Decision No. 13,464; Appeal of Brunelli, 33 id. 350, Decision No. 13,073).

As a threshold matter, the Education Law is silent with respect to specific mandates for music or band instruction. Therefore, respondent has violated no statute in its revision of the band curriculum. Moreover, the Commissioner’s regulations in effect at the time this appeal was commenced required only that a student take one credit of art or music to graduate (8 NYCRR "100.5 [a][2][v]) and that the music credit can be obtained by, "participating in a school’s major performing organization, such as band, chorus, orchestra, dance group or theatre group" (8 NYCRR "100.5 [d][2][i][a]). I note that this regulation was amended in 1999, but the amendment does not affect the outcome of this decision. Thus, I find respondent was entitled to determine its own band curriculum, as long as it was rational and reasonable.

The New York State Education Department has issued a syllabus for "Music in the High School," which the board may look to for guidance in determining its music curriculum. The State syllabus describes the band instructional program as consisting of, "sectional rehearsals, instruction of individual members, small ensemble playing, full ensemble rehearsals, and opportunities for student conducting. . . Individual instruction emphasizes technical progress and solo playing using repertory other than the concert music." The syllabus further states:

Based upon the syllabus description, the characterization of participation in a performing group, such as the wind ensemble, as a lesson is rational and reasonable. Finally, the manner in which the music course is taught does not violate the General Brown Curriculum Guide. The Guide states that "[a]ll band members receive a weekly grade based on performance in the lesson and the band rehearsal," and "[e]very function that the band plays for during the school year is considered a part of the course of instruction (i.e. spring concert, instrumental lessons, exchange programs, concerts held during the year on and off school grounds)." This portion of the Guide simply does not support petitioner’s claim that instrumental lessons are required to be conducted in small groups.

THE APPEAL IS DISMISSED.

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