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Decision No. 13,184

Appeal of JANET and STEVEN SCHRIER, on behalf of David, from action of the Board of Education of the Three Village Central School District of Brookhaven and Smithtown relating to educational placement.

Decision No. 13,184

(May 19, 1994)

Pelletreau & Pelletreau, Esqs., attorneys for respondent, Vanessa M. Sheehan, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's refusal to change their son's seventh grade placement. The appeal must be dismissed.

Petitioners' son is a seventh grade student at Gelinas Junior High School. The Board of Education of the Three Village Central School District of Brookhaven and Smithtown ("respondent") authorized the implementation of a "house plan" system in the junior high school during the 1989-90 school year. The purpose of the house plan is to limit class size to enhance the students' ability to learn. Under the plan, the entire seventh grade population is divided into three "houses" (house I, house II and house III). According to respondent, students are scheduled into their classes and respective houses by the school district computer, which uses a standard scheduling software package.

At the start of the 1993-94 school year, petitioners complained to school district officials concerning their son David's placement in house I and requested his transfer to house III. Respondent's assistant principal met with petitioners on September 8, 1993 for approximately two hours to discuss David's schedule. The assistant principal explained that David was appropriately scheduled in all honor classes as per their request. On September 15, 1993, petitioners met with the junior high school principal to express their concern that house III was the elite honors section and that their son was more appropriately placed in that section. The principal assured them that house III was not an elite honors section and that the curriculum for all seventh grade students was the same.

On October 13, 1993, petitioners met with respondent's superintendent and the junior high school principal and again requested a change in their son's placement to house III. Respondent's representatives reiterated that David was in fact placed in all homogeneous honors sections, as requested by petitioners at the time of registration, and that the content of the educational program is the same in both house I and house III. Respondent denied petitioners' request by letter dated October 14, 1993.

On October 24, 1993, petitioners wrote to respondent's board president and continued to request additional information to determine whether there were differences among the seventh grade houses at the junior high school. Petitioner Steven Schrier attended respondent's board meeting on November 9, 1993 and was given copies of past reports and information on the subject of the house plan concept in response to petitioners' October 24th request. Petitioner Steven Schrier also attended the November 23, 1993 board meeting to discuss the issue. This appeal ensued.

Petitioners allege that respondent has established a learning community in house III that is different than the other houses and that house III is not available to all similarly situated students. Petitioners request that I review respondent's determination and order their son's transfer to house III. Petitioners also request that I direct respondent to produce certain documents that they claim they have been denied.

Respondent raises a number of affirmative defenses, including petitioners' failure to demonstrate a legal right to the relief requested, that petitioners have suffered no injury as required in an appeal under Education Law '310 and that its decision was rationally based and was within its authority to set educational policy under Education Law '1709(3) and (33). Respondent also contends that the Commissioner of Education lacks authority to determine requests for information under the Freedom of Information Law (FOIL) and Family Education Rights and Privacy Act (FERPA).

Before reaching the merits, I will address the procedural issues. Although respondent contends that petitioners lack standing, this procedural claim is more properly characterized as failure to state a claim upon which relief can be granted. Petitioners show no demonstrable injury to their civil, personal or property rights resulting from the action of respondent. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioners' claim that their son's placement in house I is inappropriate and creates an unacceptable academic environment compared to house III. However, aside from their bare allegations, petitioners have failed to establish a legal right to change placement, so the petition must be dismissed on that basis.

The appeal must also be dismissed on the merits. Education Law '1709(3) gives boards of education broad power:

To prescribe the course of study by which the pupils of the schools 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.

Respondent has determined that the placement of petitioners' son in house I was appropriate and consistent with petitioners' request that he be placed in a homogeneous honors group. The fact that petitioners prefer another group that has a higher number of homogeneous honors students is irrelevant. From my review of the record, respondent made a determination consistent with its educational policy that is neither arbitrary, capricious or unreasonable, nor am I persuaded that the determination unfairly discriminates against petitioners' son (Appeal of Paye, 33 Ed Dept Rep 241; Appeal of Reid, 32 id. 587; Appeal of Alexandreena D., 30 id. 203; Appeal of Amoia, 28 id. 150). The record also reflects that respondent handled petitioners' numerous contacts with courtesy and attempted to discuss the issue with petitioners in a rational way. Petitioners simply do not have the legal right to demand a particular educational setting for their child and usurp the authority of local school district officials in these matters.

Petitioners have also sought the production of documents by respondent under the Freedom of Information Law (FOIL) concerning this matter. The appropriate forum for addressing alleged FOIL violations is in the Supreme Court of the State of New York, not a '310 appeal to the Commissioner of Education (Appeal of Williams, 33 Ed Dept Rep 318; Appeal of Kushner, 31 id. 351; Application of Eisner, 31 id. 517). To the extent petitioners make claims for records under the Family Educational Rights and Privacy Act (FERPA), I note that the U.S. Department of Education has sole authority to enforce that act (20 USC '1232g, 34 CFR '99.22; Appeals of Children with Handicapping Conditions, 32 Ed Dept Rep 2; Appeals of Children with Handicapping Conditions, 31 id. 26).

I have considered petitioners' other contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE