Appeal of P.D., on behalf of her daughter A.D., from action of the Board of Education of the Willsboro Central School District regarding admission to the National Honor Society.

Decision No. 17,400

(May 30, 2018)

Law Office of Bryan Liam Kennelly, attorneys for petitioner, Bryan Liam Kennelly, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Willsboro Central School District (“board”) to admit her daughter, A.D. (the “student”), to the National Honor Society (“NHS”).  The appeal must be dismissed. 

During the 2016-2017 school year, the student was a tenth-grade student in the district’s high school and applied for admission to the NHS.  By letter dated March 10, 2017, respondent’s NHS Faculty Council (“Council”) advised petitioner that the student was not selected for NHS membership.

 On or about March 15, 2017, petitioner met with respondent’s superintendent to discuss the Council’s decision not to select the student for membership in the NHS.  By email dated March 19, 2017, the superintendent approved petitioner’s appeal based on a technical/procedural issue (i.e., that the NHS advisor was not present during deliberations about the student’s candidacy) and remanded the issue back to the Council for reconsideration.  On March 20, 2017, respondent’s NHS advisor informed petitioner that the reason for the Council’s determination was the student’s “‘character and leadership,’” but was unable to provide specific reasons.  By letter dated March 20, 2017, petitioner appealed the determination to the superintendent.  Specifically, in petitioner’s appeal letter, petitioner claimed that (1) the selection process involved hearsay and rumor; (2) faculty members were not asked to write comments or justify any low ratings; (3) justification using criteria for non-selection was not given by the student’s advisor; (4) the NHS advisor was not present at the Council meeting and was not fulfilling her job description; and (5) the selection procedure for the NHS was not published for parents and students.

By email dated March 22, 2017, the superintendent “approve[d] the appeal based on procedural issues that occurred.  Specifically, that [the Council] did not follow expected protocols in conducting the meeting.”  On or about March 24, 2017, the superintendent convened the Council, which again voted not to select the student for NHS membership.  Petitioner subsequently appealed the determination to the board at its meeting on March 28, 2017.  On April 21, 2017, the superintendent informed petitioner that the board denied her appeal.  This appeal ensued.

Petitioner asserts that respondent’s decision to deny the student admission to the NHS was arbitrary and capricious because respondent and the Council, NHS advisor, and superintendent, “were totally unaware of the constitution, by-laws and other district materials pertaining to the [NHS].”  Petitioner requests an order directing respondent to review the non-selection of the student to the NHS and to review its constitution, by-laws, and other district materials pertaining to the NHS and revise them.

Respondent argues that the appeal must be dismissed for lack of proper service and for failure to join a necessary party.  Respondent also contends that petitioner failed to state a case or controversy and to establish a clear legal right to the relief sought.

I must first address the procedural issues.  Respondent asserts that the appeal must be dismissed for lack of proper service because the student’s father served the petition.  Section 275.8(a) of the Commissioner’s regulations provides that “[p]leadings may be served by any person not a party to the appeal over the age of 18 years.”  Respondent asserts that the student’s father is a “party in interest” because “[b]y her own admission, [p]etitioner verifies [the student’s father] was a part of the internal appeals process now being challenged in this matter.”  As a result, according to respondent, service by the student’s father is invalid.  However, the student’s father is not a party to the appeal and therefore I decline to dismiss the appeal for lack of proper service.    

Respondent asserts that the appeal must 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).  Respondent contends that “[p]etitioner challenges the process which involved the Faculty Council and Superintendent” but “fails to join the Superintendent and/or members of the Faculty Council.”  Although the superintendent and members of the Council are not named as respondents in the appeal, petitioner’s affidavit of service indicates that the superintendent was personally served.  However, only the board is named in the caption as a respondent and has appeared in this appeal.  Nevertheless, I decline to dismiss for failure to join a necessary party because the petition does not seek any relief as to the superintendent or any members of the Council and a decision in petitioner’s favor would not affect their rights (cf. Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026). 

 Turning to the merits, petitioner asserts that respondent’s decision to deny the student admission to the NHS was arbitrary and capricious because respondent and the Council, NHS advisor, and superintendent, “were totally unaware of the constitution, by-laws and other district materials pertaining to the [NHS].”       In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Membership in the NHS is a privilege, not a right (see Appeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).  A decision regarding NHS admission is left to the discretion of the local board of education and its faculty and will not be set aside unless that decision is arbitrary, capricious and without a rational basis (Appeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).

Petitioner claims that respondent, the student’s advisor, the Council, and the superintendent were “totally unaware of the [NHS] constitution, by-laws and other district materials pertaining to the [NHS].”  Petitioner, however, fails to substantiate these claims, which amount to nothing more than mere speculation.  The petition alleges that the student is consistently on the high honor roll, is class president, participates in various extracurricular activities, and is an altar server in her church.  However, while petitioner expresses disagreement with the final non-selection decision on such basis, the only ground cited in the petition for finding the decision arbitrary and capricious is the alleged lack of knowledge of those who participated in the decision and the appeal from that decision.

The record reveals that the procedure followed in reviewing NHS applications was applied consistently to all applicants.  The Council surveyed staff for evaluations concerning each applicant’s character in several categories. The record reflects that the superintendent reviewed the selection process to ensure that it was fair and consistent with district procedures.  According to the superintendent, the final decision not to admit the student to the NHS was due to concerns in the areas of character and leadership, helping others, cooperation, and respect.  Article IX, section 2 of the NHS Constitution specifically provides for evaluation of candidates on the basis of service, leadership and character.  Of necessity, therefore, a Faculty Council’s decision on selection of candidates based on such criteria is partly subjective, requiring judgment (Appeal of K.A., 42 Ed Dept Rep 389, Decision No. 14,889).  In this case, petitioner has not articulated a basis for concluding that the Council, or respondent in upholding the Council’s decision, applied different acceptance standards to petitioner’s daughter or acted out of bias.  Petitioner has not proven that the Council and respondent failed to consider all relevant and available information regarding the student’s candidacy and has not proven that their selection procedures violated the NHS Constitution or the NHS Handbook.  Under these circumstances, therefore, petitioner has not met her burden of demonstrating a clear legal right to the relief requested (see Appeal of Andela, 38 Ed Dept Rep 388, Decision No. 14,062).

Further, the student was provided a full and fair opportunity to apply to the NHS, was considered and reconsidered by the Council, and then reviewed by the board.  Petitioner did not submit a reply or any other evidence to refute respondent’s contentions.  Thus, on this record, I find that petitioner has not sustained her burden of proving that the denial of the student’s admission to the NHS was arbitrary or capricious under the circumstances presented.

Although the appeal must be dismissed for the reasons discussed above, I note that this result should not be construed to diminish the student’s academic accomplishments.  Rather, it means only that petitioner has not proven that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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