Decision No. 13,697

(October 31, 1996)

Raymond G. Kuntz, P.C., attorneys for respondent, Mario L. Spagnuolo, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges respondent's refusal to admit his son to its jazz band course in the 1995-96 school year. Petitioner also requests his son's admission to respondent's jazz band in 1996-97. The appeal must be dismissed.

Petitioner's son was an eleventh grade student in respondent school district in 1995-96. Petitioner's son was a member of respondent's jazz band in the 1993-94 and the 1994-95 school years, but was not permitted to participate in 1995-96 based on his performance in a mandatory audition.

Respondent's published "Course of Study" lists jazz band as a one-half credit course with the following prerequisite: "Audition by instrumental music teacher held during the first two weeks of school." In the two school years prior to 1995-96, respondent did not conduct auditions for the jazz band because all students who applied to join the band could be accommodated. However, in 1995-96, more students sought participation in the jazz band than could be reasonably instructed, and respondent's music teacher was forced to limit the number of participants by an audition process.

The auditions for the 1995-96 school year -- which should have occurred prior to September 21, 1995 -- were delayed because respondent's music teacher was absent from school due to a serious injury. Petitioner's son auditioned for the first time by audio tape on September 25, 1995. However, this audition was apparently lost due to a malfunction of the tape player or tape. Petitioner's son was permitted to audition again, this time in person, on October 5 or 6, 1995. On or about October 10, 1995, petitioner's son was informed that he was not accepted into respondent's jazz band based on his performance at the audition.

Petitioner contends that respondent's actions were inconsistent with its published educational philosophy and policy on equal opportunity. In addition, petitioner contends that respondent's actions constitute a suspension of his son from the jazz band course without legally sufficient cause and due process and that respondent used arbitrary and capricious standards to exclude his son from the course. Finally, petitioner contends that his son should be admitted to respondent's jazz band because the auditions were not conducted in a timely fashion.

Respondent denies that it violated its educational philosophy or policy on equal opportunity. Respondent further denies that it suspended petitioner's son from instruction, or violated his due process rights. Respondent contends that its use of an audition for selecting participants in its jazz band course was neither arbitrary, capricious nor unreasonable. In addition, respondent contends that this appeal should be limited to the issue of whether petitioner's son should be admitted to its jazz band in 1995-96, and should not include the prospective relief sought by petitioner concerning his son's participation in the band in 1996-97.

Boards of education have broad authority to prescribe the course of study by which pupils 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 warrants (Education Law ''1709[3] and 1804[1]). Consistent with that authority is the power to place students (Appeal of Kendrick, 32 Ed Dept Rep 464). The Commissioner has consistently held that he will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150; Appeal of Bartowski, 25 id. 52).

Based on my review of the record, I find that respondent has not acted arbitrarily or capriciously. The audition was a published prerequisite for the course. Petitioner's son competed with the other students for placement in respondent's jazz band course on an equal basis. Every student was given the same music, and the same amount of time to practice. Respondent acted reasonably when it based admission to its jazz band course on an audition.

Likewise, I find no evidence in the record supporting petitioner's assertion that respondent violated his son's due process rights. District officials fully investigated petitioner's complaints and respondent's superintendent and board of education rendered written decisions which fully responded to petitioner's objections. The slight delay in the audition process caused by the absence of respondent's music instructor does not provide a basis for reversing its placement decision regarding petitioner's son. I also do not find that respondent's actions resulted in a suspension from instruction, as alleged by petitioner. Petitioner's son was simply not placed in a particular course that he desired.

There is no basis in the record before me supporting petitioner's allegation that respondent violated its equal opportunity policy, which states that respondent "shall not discriminate against any student, employee, or applicant on the basis of race, color, national origin, creed, religion, marital status, sex, age, or disability." Nor is there any basis in the record supporting petitioner's claim that respondent violated its published educational philosophy which is "to foster in students good work habits, integrity, self discipline, good sportsmanship, self-confidence and a sense of purpose." Respondent's use of auditions to qualify students for participation in a performance-based course does not undermine this philosophy.

Finally, I find petitioner's assertions regarding the admission of his son into respondent's jazz band in the 1996-97 school year premature in the context of this appeal. In any event, I would dismiss petitioner's claim regarding the 1996-97 school year because petitioner has not established in the record before me that respondent acted arbitrarily or capriciously with respect to his son's admission to jazz band in that school year.

I have considered petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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