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Decision No. 14,506

Appeal of JAMES ROTELLA, on behalf of his son, MARK J. ROTELLA, from action of the Board of Education of the Grand Island Central School District regarding admission to the National Honor Society.

Decision No. 14,506

(December 15, 2000)

Bouvier, O’Connor, attorneys for respondent, Chris G. Trapp, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Grand Island Central School District ("respondent") to admit his son, Mark, to the National Honor Society ("NHS"). The appeal must be sustained.

In the 1999-2000 school year, petitioner’s son Mark applied for admission to the NHS. Respondent’s Faculty Council ("Council") voted not to select Mark for membership and Mark was informed of that decision by letter dated March 31, 2000.

By letter dated April 3, 2000, petitioner appealed the Council’s decision to respondent’s Honor Society Adviser ("Adviser"). On April 14, 2000, the Adviser informed petitioner that he had the right to pursue the matter with the high school principal, but that the decision of the Council was final and that the principal could only reconvene the Council if technical errors have occurred. By letter dated April 20, 2000, petitioner appealed to the principal and respondent's superintendent citing alleged procedural errors in the selection and appeal processes. By letter dated May 3, 2000, the superintendent informed petitioner that the appeal process was being followed and that the principal would contact petitioner after examining the matter. The letter further stated that the superintendent would await the principal’s decision before any further action was taken. On May 22, 2000, petitioner appealed to respondent. By letter dated July 5, 2000, the superintendent informed petitioner that the Council had reconvened and reconsidered Mark’s application for membership but did not reverse its initial decision. This appeal ensued.

Petitioner contends that the decision to deny Mark admission into the NHS was rendered in an arbitrary and capricious manner and that procedural violations occurred in the selection process. He further contends that respondent’s selection process is inconsistent with NHS criteria and guidelines. In addition, he argues that there is no legitimate appeals process in place for purposes of reviewing Council decisions. Finally, he contends that the Council denied Mark admission to the NHS because it is gender biased. Petitioner also objects to respondent’s late submission of papers in this appeal. He seeks an order vacating the decision denying Mark membership in the NHS and directing respondent to review the matter.

Respondent contends that the Commissioner of Education lacks jurisdiction over the subject matter of the appeal and that the appeal is untimely. Respondent maintains that the selection and appeals processes were both fair and non-discriminatory and that the decision to deny Mark admission to the NHS was not arbitrary or capricious.

I will initially address the procedural issues. Respondent’s initial answer was not properly verified as required under "275.5 of the Commissioner’s regulations. Respondent subsequently submitted a properly verified answer without modification thereto. In view of the particular circumstances of this case, I will accept respondent’s late submission of an answer with proper verification. In addition, none of the papers submitted on behalf of respondent’s answer were submitted in accordance with the timeframes set forth in the Commissioner’s regulations (8 NYCRR ""275.13 and 276.4). In light of the necessity of such papers to the determination of the appeal and the fact that petitioner responded to the late submissions, I will accept both respondent’s late submissions and petitioner’s responses thereto (8 NYCRR ""276.4 and 276.5).

Turning to respondent’s jurisdictional objection, Education Law "310 provides the Commissioner of Education with broad authority to review action taken by officials at the district level, including, "any other official act or decision of any officer, school authorities, or meetings concerning any … act pertaining to common schools" (Education Law "310[7]). I find that this controversy falls within the purview of my authority pursuant to Education Law "310. I have previously reviewed similar challenges regarding a student’s application for admission to the NHS (Appeal of Andela, 38 Ed Dept Rep 388, Decision No. 14,062; Appeal of Guardi, 37 id. 535, Decision No. 13,921; Appeal of Andela, 36 id. 178, Decision No. 13,693).

With respect to respondent’s argument that the petition is untimely, the Commissioner’s regulations require that an appeal be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). By letter dated May 3, 2000, petitioner was informed that the appeal process was being followed and that the principal would contact petitioner after examining the matter. The letter further stated that the superintendent would await the principal’s decision before any further action was taken. By letter dated July 5, 2000, the superintendent informed petitioner that the Council had reconvened and reconsidered Mark’s application for membership and did not reverse its initial decision. The petition was served on July 31, 2000, within the thirty-day period. Therefore, I find the appeal timely.

The appeal must be sustained on the merits. Membership in the NHS is a privilege, not a right (Appeal of Andela, 38 Ed Dept Rep 388, Decision No. 14,062; Appeal of Guardi, supra; Appeal of Rezac, et al., 18 Ed Dept Rep 327, Decision No. 9,862). 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 Andela, supra; Appeal of Friedberg, 34 Ed Dept Rep 284, Decision No. 13,311; Appeal of Brenner, 25 id. 219, Decision No. 11,555).

However, respondent’s principal admits that he was present as an observer at the Council membership selection meetings, although he maintains that he did not participate in such meetings in any way. The principal’s mere presence at such meetings violated the rules and procedures of the NHS as contained within the National Honor Society Handbook (15th Edition).

Article IV of the NHS constitution provides in section 5 that:

Duly chartered local chapters shall conform to this Constitution as set forth by the National Council.

Article V of the NHS constitution provides in section 4 that:

The principal shall receive appeals in cases of non-selection of candidates …

Article VII of the NHS constitution provides in section 1 that:

No principal or assistant principal may be included on the Faculty Council.

The commentary on the constitution provides in its discussion of the role of the principal in Council meetings that:

It is quite clearly expressed in Article VII, Section 1 that 'no principal or assistant principal may be included on the Faculty Council' - indicating that the administrator does not serve as a member of the group that selects, disciplines, or dismisses members. This prohibition extends to the principal sitting in on the meetings of the Faculty Council because: 1) Nowhere in the description of the duties of the principal nor in the explanation of the membership of the Faculty Council is there reference to having the principal as a member of that body. 2) Since the principal serves as the primary authority for appeals of non-selection or dismissal (as per Article V, Section 3), a conflict of interest could arise if the principal was also part of the initial decision in these cases. By sitting in on the decision making process, the principal compromises his/her objectivity in hearing an appeal, the result of which would necessitate passing the appeal on to the next higher level of the school system for consideration (supervisors, superintendents, school boards, etc.) …

I find that the principal’s presence at the Council’s membership selection meetings compromised his ability to hear petitioner’s appeal, and that, in accordance with the NHS’s rules and procedures, petitioner’s appeal should have been passed to the superintendent. Since the superintendent failed to act on petitioner’s appeal, I find that respondent should consider petitioner’s appeal and render a decision accordingly (Appeal of Andela, 36 Ed Dept Rep 178, Decision No. 13,693).

Furthermore, the constitution of the Grand Island Chapter of the NHS and other district materials concerning NHS membership states "Faculty Council decisions concerning selection are final." As stated above, this is inconsistent with the constitution of the NHS. Accordingly, respondent should review and revise its constitution, by-laws and other district materials pertaining to the NHS and revise them, as necessary, to conform to the NHS constitution.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent review the non-selection of petitioner's son to the National Honor Society.

IT IS FURTHER ORDERED that respondent review its constitution, by-laws and other district materials pertaining to the National Honor Society and revise them,

as necessary, to conform to the National Honor Society constitution.

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