Appeal of MICHELLE CLARK, on behalf of her child, from action of the Board of Education of the Sewanhaka Central High School District regarding educational placement.

Decision No. 18,065

(January 3, 2022)

Brill Legal Group, PC, attorneys for petitioner, Peter E. Brill, Esq., of counsel

Attorney for respondent Sewanhaka Central High School District, Bernadette Gallagher-Gaffney, Esq., of counsel

Silverman & Associates, attorneys for Nassau Board of Cooperative Educational Services, Caroline B. Lineen, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Sewanhaka Central High School District (“respondent”) to deny her child (“the student”) admission to the Long Island High School for the Arts (“LIHSA”), a program offered by Nassau County Board of Cooperative Educational Services (“Nassau BOCES”).  The appeal must be dismissed.

LIHSA is a career and technical education (“CTE”) program offered by Nassau BOCES.  It is made available to the component districts of Nassau BOCES, including respondent.  Respondent’s policy 6152, “Occupational Education and BOCES Programs” (“Policy 6152”), states in relevant part:

Annually by December 31^st, the Board of Education will announce its intent to allow or prohibit District participation in BOCES-sponsored regular education courses and programs of study for the following school year.

This policy also limits participation in such programs to high school seniors. 

During the 2020-2021 school year, the student was in eighth grade.  In an email dated April 6, 2021, LIHSA’s program coordinator informed petitioner that the student had “passed the audition screening component” of her application for admission.  The program coordinator further indicated that the student would not be permitted to enroll until it received the student’s “home district’s permission ....”

By letter dated April 12, 2021, petitioner requested respondent’s approval for the student to attend LIHSA during her ninth- and tenth-grade school years.  By letter dated April 28, 2021, respondent’s district clerk indicated that the student was ineligible to attend LIHSA according to Policy 6152.  The district clerk explained that “the Board voted at it’s [sic] November 24, 2020 meeting not to allow [d]istrict participation in BOCES-sponsored general educational courses for the 2021-2022 school year.”  Thereafter, petitioner appealed[1] this determination by letter dated May 24, 2021, which respondent denied.  This appeal ensued.  Petitioner’s request for interim relief was denied on July 16, 2021.

Petitioner argues that respondent’s refusal to consider her request for the student to attend LIHSA was arbitrary and capricious.  Petitioner further argues that respondent’s policy limiting enrollment in BOCES programs to high school seniors is arbitrary and capricious.  Petitioner additionally contends that respondent has failed to fulfill its obligations under Education Law §§ 1709 (3) and 4602 to provide CTE, a deficiency that could be remedied by allowing students to attend LIHSA.  For relief, petitioner seeks an order directing respondent to approve the student’s attendance at LIHSA for the 2021-2022 school year.

Respondent contends that the appeal must be dismissed as untimely, for lack of standing, and for failure to join a necessary party.  On the merits, respondent contends that Policy 6152 is rational; that it offers sufficient CTE training, including training in the performing arts; and that its decision to deny the student’s enrollment in LIHSA was neither arbitrary nor capricious. 

Nassau BOCES argues that respondent should have approved the student’s enrollment at LIHSA because respondent does not offer a CTE program in performing arts and music.  Nassau BOCES asserts that the district’s failure to permit the student to enroll or, alternatively, offer such coursework in respondent’s schools violates Education Law §§ 1709 (3) and 4602 (1). 

First, I must address the procedural issues.  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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872). 

The timeliness of this appeal hinges upon whether petitioner’s May 24, 2021 communication constituted an appeal or a request for reconsideration; the latter of which 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).  Petitioner fashioned her May 24, 2021 letter as an “appeal,” which respondent “voted to deny” by letter dated May 26, 2021.  Given this terminology, I conclude that respondent’s May 2021 denial constituted a new action which extended petitioner’s time to appeal.  Having commenced this appeal less than 30 days thereafter,[2]  I decline to dismiss the appeal as untimely.

Respondent also argues that petitioner failed to name Nassau BOCES in the caption of the appeal.[3]  Joinder requires that a party be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition, informing the party to appear in the appeal and to answer the allegations contained therein (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Here, the caption of the petition states:  “Nassau BOCES Long Island High School for the Arts.”  Moreover, paragraph seven of the petition identifies Nassau BOCES and characterizes it as a necessary party.  Nassau BOCES was also served with a copy of the petition and submitted an answer.  Under these circumstances, I conclude that petitioner sufficiently joined Nassau BOCES.  Prior decisions of the Commissioner dismissing appeals based upon deficiencies with the captions are distinguishable (see Appeal of J.C. and J.C., 57 Ed Dept Rep, Decision No. 17,407 [caption named superintendent but did “not name either the board or the district as a respondent”]; Appeal of R.M., 57 id., Decision No. 17,205 [caption failed to name any respondent, and “neither the school district nor the board of education [were] named as a party [elsewhere] in the notice of petition or petition”]).

Petitioner’s claim seeking enrollment in LIHSA must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  

LIHSA is a shared service offered by Nassau BOCES.  To participate in a BOCES service, component districts must enter into contracts with BOCES (Education Law § 1950 [4] [d] [4]).  The record reflects that respondent did not participate in LIHSA for the 2020-2021 school year and had no contract with Nassau BOCES for this service.  Therefore, although petitioner desires admission to LIHSA on the student’s behalf, the student has no right to attend LIHSA absent a contract between respondent and Nassau BOCES (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,857).

Turning to petitioner’s remaining claims, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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). 

Petitioner has failed to meet her burden of proving that respondent does not offer CTE as required by Education Law § 4602.  Petitioner asserts that respondent “offers limited performing arts training ... [which is] insufficient to provide adequate career training pursuant to the requirements of Education Law § 4602.”  As proof, petitioner submits a chart that she submitted to respondent comparing performing arts course offerings between respondent’s district and LIHSA.  Respondent denies petitioner’s contentions, identifying performance-based courses such as orchestra and a host of extracurricular activities which it offers (e.g., jazz band, chamber choir, dance band, and musical productions).  While respondent may not offer the same depth of performing arts courses as LIHSA, I nevertheless find that it has satisfied its obligation to “provide secondary school pupils and adults access to programs of career education, commensurate with the interests and capabilities of those desiring and having [such] a need ...” (Education Law § 4602; see Appeal of Baez, 48 Ed Dept Rep 418, Decision No. 15,901).[4]

Additionally, petitioner has failed to demonstrate that respondent imposes arbitrary or capricious limitations on participation in BOCES programs.  Education Law § 1709 (3) authorizes boards of education to prescribe the course of study for students and to regulate their transfer from one class to another.  The Commissioner has recognized that a district may reasonably limit enrollment in BOCES programs (see e.g. Appeals of Mento et al., 48 Ed Dept Rep 396, Decision No. 15,896 [limiting enrollment based on budgetary concerns]; Appeal of Giordano, 29 id. 210, Decision No. 12,273 [limiting enrollment to 11th and 12th grade students]; see generally Matter of Tripi, 21 id. 349, Decision No. 10,710).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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