Appeal of JOHN POTTER, JR., on behalf of his child, from action of the Board of Education of the City School District of the City of Elmira and the Schuyler-Steuben-Chemung-Tioga-Allegany Board of Cooperative Educational Services regarding dual enrollment.

Decision No. 18,541

(January 14, 2025)

Schlather, Stumbar, Parks & Salk, LLP, attorneys for petitioner, Jacob P. McNamara, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent Schuyler-Steuben-Chemung-Tioga-Allegany Board of Cooperative Educational Services, James A. Gregory, Esq., of counsel

Hancock Estabrook, LLP, attorneys for respondent, Elmira City School District, Frank W. Miller, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Elmira (“Elmira”) that his child (the “student”) is ineligible to enroll in the Schuyler-Steuben-Chemung-Tioga-Allegany Board of Cooperative Educational Services’ (“BOCES”) New Visions program.[1]  The appeal must be dismissed.

According to the record, the BOCES New Visions program is “offered [to] high performing students who intend to pursue careers that will require a bachelor’s degree or higher degree in those chosen occupations to be pursued by the students” (see generally Appeals of Maio and Brand, 59 Ed Dept Rep, Decision No. 17,776, reopening denied, 60 id., Decision No. 17,925).  The specific New Visions program at issue in this appeal is devoted to Innovation, Leadership, and Business.

The student attends a nonpublic school within the Elmira City School District.  In April 2024, petitioner requested the student’s admission to the New Visions program.  BOCES denied this request, reasoning that nonpublic school students are ineligible to enroll in the New Visions program.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 10, 2024.

Petitioner asserts that the student is eligible to enroll in the New Visions program because it constitutes “career education.”  Alternatively, petitioner argues that the New Visions program is one for “gifted pupils” as described in Education Law § 3602-c (1) (b).  For relief, petitioner requests the student’s admission to the New Visions program.

Elmira and BOCES argue that the student is ineligible to enroll in the New Visions program because he attends a nonpublic school.  Elmira further argues that it does not provide nonpublic school students with access to gifted programs because it does not offer such programs to its resident students.

Education Law § 3602-c allows for nonpublic school students to receive certain services in public schools.  As relevant here, the statute defines “services” as “instruction in the areas of gifted pupils, career education and education for students with disabilities ...” (Education Law § 3602-c [1] [c]).

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’s argument that New Visions constitutes “career education” is similar to the argument raised by the petitioners in Appeals of Maio and Brand (59 Ed Dept Rep, Decision No. 17,776).  In that appeal, the Commissioner found, based on the information in the record, that the New Visions program was not “career education” as defined in Education Law § 3602-c.  Petitioner has presented no evidence to support a different conclusion here.  The description of the Innovation, Leadership, and Business program fits comfortably within the definition of a “professional” program, one of the kinds of programs excluded from the definition of career education (Education Law § 3602-c [1] [c]; Appeals of Maio and Brand, 59 Ed Dept Rep, Decision No. 17,776 [noting that “business” is “explicitly identified as [an] example []” of a professional program]).  The use of the noun “career” in promotional materials for the program does not support a different conclusion.  As such, I find that the reasoning of Appeals of Maio and Brand is dispositive of this argument. 

I am also unconvinced by petitioner’s contention that his child is eligible for New Visions as a “gifted pupil.”  A school district is only obligated to offer gifted education to nonpublic school students if it offers such services to public school students (Education Law § 3602-c [1] [a]).  As indicated above, Elmira does not offer any such gifted programs.  Moreover, students may only participate in gifted programs following a referral, evaluation, and timely request for services, none of which petitioner has shown (Education Law §§ 3602-c [2], 4452 [1]; see Appeal of Goodman, 38 Ed Dept Rep 824, Decision No. 14,153; Appeal of Pfeffer, 38 id. 514, Decision No. 14,083).  Accordingly, petitioner has failed to meet his burden of proving that the student is entitled to attend the New Visions program and the appeal must be dismissed (Appeals of Maio and Brand, 59 Ed Dept Rep, Decision No. 17,776).

THE APPEAL IS DISMISSED.

END OF FILE