MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Mount Markham Central School District ("respondent") to admit his son, Christopher, to the National Honor Society ("NHS"). The appeal must be dismissed.

In the 1995-96 school year, petitioner's son Christopher completed the eleventh grade and applied for admission to the NHS. The Faculty Council ("Council") voted not to select Christopher for membership, but school officials inadvertently sent petitioner an acceptance form letter, intended for another student with the same last name. On March 22, 1996, the principal contacted petitioner's wife and informed her that Christopher had not, in fact, been selected for NHS membership, and explained the mistake. The substance of this conversation was confirmed in a letter to petitioner dated March 25, 1996.

Petitioner asked respondent to reverse the Council's decision. By letter dated March 27, 1996, respondent's president informed petitioner that respondent did not have the ability to overrule the Council's decision. Petitioner appealed this decision to the Commissioner (Appeal of Andela, 36 Ed Dept Rep 178, hereinafter referred to as Andela I). In that decision, I determined that respondent had the authority to review selection decisions of the Council after an initial appeal to the principal, and directed respondent to review Christopher's non-selection for NHS membership.

On November 12, 1996, petitioner and his wife addressed respondent, highlighting Christopher's achievements, and respondent discussed the matter the same evening in executive session. Addressing two issues raised in Andela I, respondent directed that the Council develop chapter by-laws that were consistent with the NHS Constitution, and that the Council ensure that information about the selection process, which was distributed to students, parents and community members, correctly advised that selections of the Council are subject to appeal. As of December 1996, by-laws had been drafted and were being reviewed, to be in place prior to the next selection of NHS members for the 1996-97 school year. Starting with the 1996-97 school year, the NHS advisors also planned to distribute revised informational material about the selection process.

On November 19, 1996 respondent again deliberated petitioner's appeal in executive session, and announced its decision to uphold the Council's determination. Petitioner was advised of the decision by telephone on November 19, 1996 and by letter dated November 20, 1996. Respondent also sent a letter to Christopher, apologizing for the clerical error.

Respondent's November 19, 1996 decision was by "mutual consensus" rather than formal vote. On December 3, 1996, petitioner and his family again addressed respondent at its board meeting, and respondent formally voted to confirm the November 19, 1996 decision. This appeal ensued.

Petitioner asserts that the Council's decision was not made in compliance with the requirements of the NHS Handbook and Constitution. Examples of noncompliance cited by petitioner are failure to have local by-laws; failure of the local NHS chapter advisors to contact local community organizations concerning candidates' community activities; and failure to publish information regarding the selection process. Petitioner also asserts that respondent did not review Christopher's credentials before making its decision, because the documents with the credentials had been destroyed, and that respondent's review was thus insufficient and did not comply with the Commissioner's order in Andela I.

Petitioner further contends that respondent was biased and discriminated against his son, that students of lesser abilities and credentials were selected for membership while his son was not, and that in an April 1996 telephone conversation the district superintendent stated to petitioner's wife that petitioner's children "would receive nothing from this school district." Petitioner requests that respondent give Christopher's application a thorough, non-biased review, and further requests that a review board be established to review future non-selection challenges, comprised of a combination of faculty and community members.

Respondent denies petitioner's assertions that the selection process and its review of petitioner's appeal were flawed, and specifically denies petitioner's characterization of comments made in the April 1996 telephone conversation. Respondent contends that the process used by the district to select NHS members is consistent with the NHS Constitution; that the activity forms submitted by students are sufficient to permit review of extracurricular activities; that the district does not discriminate in its selection process; that the issuance of the incorrect acceptance form letter was inadvertent and promptly corrected; that the district was in the process of developing and adopting local by-laws which would be in place before the next selection of NHS members; and that the November 19, 1996 mutual consensus decision was formally ratified by vote on December 3, 1996.

Respondent also raises several procedural issues. Respondent contends that petitioner cannot obtain removal of the NHS advisors or members of the Council, as they are not named as respondents in the appeal. Respondent further requests that the record in Andela I be incorporated by reference into the record of the instant appeal, but objects to portions of the reply in Andela I and newspaper articles attached to the petition and reply. Respondent additionally objects to the timeliness of a reply memorandum of law submitted by petitioner in the instant appeal.

I will initially address the procedural issues. I find no clear request in the petition to remove the current NHS advisors from their positions, and petitioner specifically states in his reply that he does not seek the removal of the NHS advisors in this appeal, although he requested this at respondent's December 3, 1996 meeting. The NHS advisors are thus not necessary parties to this appeal.

As to respondent's request to include the record in Andela I in the record of the instant appeal, I find that the affidavit of Virginia Zito describes the selection process used by the Council, and I will, therefore, incorporate that affidavit by reference into the record of the current appeal. However, I do not find that the other pleadings from Andela I are useful or necessary to a determination of the instant appeal, and deny respondent's request as to the remaining pleadings.

Respondent also objects to the timeliness of petitioner's reply memorandum of law. Section 276.4 of the Commissioner's regulations states that reply memoranda are accepted only with the prior approval of the Commissioner. Section 276.4 further provides that the Commissioner may permit the late filing of memoranda of law upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda to the determination of the appeal. In view of the particular circumstances of this case, I will accept petitioner's memorandum of law as a late memorandum but not as a reply memorandum (8 NYCRR "276.4[a]).

The appeal must be dismissed on the merits. Petitioner contends in conclusory terms that the selection process for his son did not comply with the NHS Constitution and Handbook, but fails to establish any specific violation of a procedural requirement of either document. Taken as a whole, petitioner's disagreement is with the actual evaluation of the Council and its decision to select other students and not petitioner's son for NHS membership, but not with the specific procedures used by the Council to arrive at its decision.

The procedures used by the Mount Markham High School to select NHS members in March 1996 were set forth in an affidavit by NHS advisor Virginia Zito in Andela I. The school uses a five-member Faculty Council to review materials and make selection decisions for NHS membership. Two NHS advisors assist the Council and advise the student membership of the NHS. Each eligible student who wishes to be considered for NHS membership submits a student activity information form to assist the Council in assessing each candidate's leadership and service. The NHS advisors distribute to the high school teachers a form containing a list of the NHS candidates, and the guidelines from pages 18-19 of the NHS Handbook that define leadership and character. The teachers are given the opportunity to rate each candidate with whom they are familiar for character and leadership, as well as for scholarship in the teacher's subject area if the teacher has had a candidate in class. There is also a place for teachers' comments.

Members of the high school faculty were asked for their recommendation whether Christopher should be selected for NHS membership. Christopher received approximately nine negative recommendations in the area of leadership, six negative recommendations in the area of character, and three negative recommendations for the scholarship criterion. In order to be selected for NHS membership, a student must receive the affirmative vote of a majority of the members of the Council, and the members of the Council listen to the opinions of their faculty colleagues who are familiar with the candidate.

The Council met on March 19, 1996 to select students, and voted not to select Christopher for NHS membership. In assessing leadership, the Council considered not only after-school activities in the community but also leadership in the school and classroom. Ms. Zito explains in her affidavit that members of the Council did not perceive Christopher to be a leader in the classroom or at school, and thought he needed to be more involved in school activities and the classroom. Also, the Council considered the input of other faculty members, including those who had expressed concerns about Christopher's character and scholarship.

Membership in the NHS is a privilege, not a right (Appeal of Guardi, 37 Ed Dept Rep 535; Appeal of Rezac, et al., 18 id. 327). A decision regarding admission to the NHS 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 Guardi, supra; Appeal of Andela, supra; Appeal of Friedberg, 34 id. 284; Appeal of Brenner, 25 id. 219; Appeal of Torre-Tasso, 25 id. 47). In reviewing a challenge to non-selection, in the absence of specific evidence to the contrary, the reviewer must "assume that the members of the council are exercising their discretion in a legitimate manner and with the good faith expected of them" (NHS Handbook at p. 19), and "[r]econsideration of a faculty council's decision must be a rare occurrence" (id. at p. 20).

The record is insufficient to establish that the Council members applied different selection standards to petitioner's son, or acted out of bias. Indeed, the record reflects that, out of twenty-six eligible students who were considered for NHS membership, seven were not selected, including one student who was the child of a Council member. Although petitioner characterizes Ms. Zito's affidavit as "speculative" and based primarily on opinions and memory since the documents from the selection process were destroyed, I find Ms. Zito's affidavit credible. It contains specific facts concerning negative faculty recommendations, specific considerations by the Council concerning Christopher's leadership and comments by faculty regarding scholarship and character, and states unequivocally that the Council voted not to select petitioner's son as an NHS member. The affidavit demonstrates that the Council gave the requisite individual consideration to Christopher's application (Appeal of Torre-Tasso, supra). I also find that the procedures, as set forth in Ms. Zito's affidavit, provided a sufficient basis for respondent's review of petitioner's appeal, even though the underlying evaluation materials used by the Council had been destroyed, a practice expressly contemplated by the NHS Handbook (at p. 43).

Petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he seeks relief (Appeal of Rampello, 37 Ed Dept Rep 153; Application of McDougald, 34 id. 424). Petitioner has not sustained his burden of showing that respondent's decision to uphold the Council's determination was arbitrary or capricious, and has not shown that the Council failed to consider all relevant and available information concerning Christopher's candidacy or that their selection procedures violated the NHS Constitution or Handbook.

I also reject petitioner's argument that respondent is not entitled to "repeal" Christopher's "NHS membership" which was allegedly granted by virtue of the erroneous acceptance letter. The record is clear that Christopher was not selected for NHS membership in accordance with the selection procedures prescribed by the NHS Constitution and Handbook. Furthermore, the NHS Handbook specifically provides for correction of technical errors such as inadvertent omission of a student's name from the list of those qualified for induction. The inadvertent confusion of two form letters to individuals with the same surname is a similar technical error. Further, Christopher never participated in an induction ceremony which might arguably make him a member of the NHS. In any event, except in limited circumstances not applicable here, equitable estoppel does not apply against a government subdivision (Parkview Assoc. v. City of New York, 71 NY2d 274; Hamptons Hosp. v. Moore, 52 NY2d 88; Appeal of Hulzer, et al., 37 Ed Dept Rep 549; Appeal of Prospero, 37 id. 62).

As to petitioner's argument that respondent's decision is flawed due to the district's failure to adopt local by-laws or publish the selection and appeal process procedures, it has consistently been held that the failure to adopt by-laws or publish selection information is not grounds for invalidating a selection determination (Appeal of Friedberg, supra; Appeal of Torre-Tasso, supra).

Accordingly, I find that respondent’s determination to uphold the Council’s decision regarding petitioner’s son was not arbitrary and capricious or without a rational basis, and under the circumstances I will not substitute my judgment for that of respondent or the Council (Appeal of Brenner, supra; Appeal of Torre-Tasso, supra). I also reject petitioner's assertion that respondent's determination is null and void because the initial determination was made by "mutual consensus" rather than formal vote on November 19, 1996. In any event, the formal vote on December 3, 1998 ratified the prior action (Town of Moriah v. Cole-Layer-Trumble Company, 200 AD2d 879, 881 [3d Dept 1994]; Hoke v. Shanker, 108 AD2d 1065, 1066 [3d Dept 1985]).

I also deny petitioner's request to establish a review board, comprised of faculty and community members, to review future non-selection challenges. The NHS Constitution and Handbook provide for an appeal process to challenge non-selection determinations, which consists of an initial appeal to the principal and then following the customary school channels (Appeal of Andela, supra). The review board suggested by petitioner would not comply with these procedures.

I have reviewed the parties' remaining arguments, and find them unpersuasive.

THE APPEAL IS DISMISSED.

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