Appeal of RICARDO A. BAEZ, on behalf of his son JONATHAN, from action of the Board of Education of the Rockville Centre Union Free School District regarding student placement.

Decision No. 15,901

(March 25, 2009)

Stewart, Greenblatt, Manning & Baez, attorneys for petitioner, Ricardo A. Baez, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Rockville Centre Union Free School District ("respondent") to enroll his son, Jonathan, in the Cultural Arts Program ("the program") at the Nassau Board of Cooperative Educational Services (“BOCES”).  The appeal must be dismissed.

Jonathan is a 12th grade student attending respondent's South Side High School (“South Side”).  On or about February 13, 2008, petitioner submitted a request to enroll Jonathan in the program.  On March 12, 2008, Jonathan auditioned for instrumental music, and he was subsequently accepted into the program.  By letter dated May 7, 2008, the South Side principal denied Jonathan’s entry into the program, based on a determination that South Side’s in-house programs were sufficient to meet Jonathan’s needs.  Thereafter, petitioner appealed to the superintendent and respondent.  By letter dated June 25, 2008, respondent upheld the determination.  This appeal ensued.

Petitioner contends that respondent's determination is not in Jonathan’s best educational interests, because the district’s music program is not comparable to the BOCES program.  Petitioner alleges that respondent's determination was arbitrary and capricious and in violation of Education Law §4602(1), and contends that respondent lacks a written policy describing its admissions criteria.  Petitioner seeks Jonathan’s enrollment in the program for the 2008-2009 school year.

Respondent asserts that it acted within its discretion, in compliance with Education Law §1709(3) and §4602, and consistent with its policy.  Respondent maintains that it is not required to send petitioner’s son to the program and that its denial of his enrollment was not arbitrary or capricious.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Education Law §1709(3) authorizes boards of education to prescribe the course of study for students and to regulate their transfer from one class to another.  Included within that authority is the power to determine whether to contract for particular BOCES programs (Appeal of Lockwood, 33 Ed Dept Rep 297, Decision No. 13,054; Appeal of Burhouse, 32 id. 256, Decision No. 12,823; Appeal of Witmeyer, 21 id. 190, Decision No. 10,648).  The Commissioner 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 B.M., 48 Ed Dept Rep ___, Decision No. 15,866; Appeal of T.K., 47 id. 234, Decision No. 15,679; Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433).

Education Law §4602(1) provides, in pertinent part:

The board of education of each school district shall provide secondary school pupils ... access to programs of career education, commensurate with the interests and capabilities of those desiring and having a need for preparatory training ....

It appears from the record before me that respondent has complied with Education Law §4602(1) by making occupational education courses available to its students.

Respondent’s policy with regard to student attendance in BOCES cultural arts and vocational programs provides, in pertinent part:

A student wishing to participate in the BOCES Cultural Arts or Vocational Program must meet with his/her guidance counselor to review his/her course history as well as the additional course offerings in the specific cultural arts or vocational area of study.  The counselor will make a recommendation to the High School Principal regarding the student’s educational needs.  The Principal will review the application and make a recommendation to the Superintendent of Schools.

...After a student has exhausted all pertinent cultural arts opportunities available at South Side High School, he/she may apply for admission to Nassau BOCES Cultural Arts Program.

Respondent states that it has compared its in-house programs with the BOCES program and determined that they are substantially equivalent.  Respondent also asserts that Jonathan has not exhausted all pertinent cultural arts opportunities available at South Side.  It is well established that a board of education may impose reasonable limitations on a student’s attendance in a BOCES program (seeAppeal of Giordano, 29 Ed Dept Rep 210, Decision No. 12,273; Matter of Tripi, 21 id. 349, Decision No. 10,710).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioner has not established that Jonathan has a right to attend the program, or that respondent’s refusal to enroll his son in the program was arbitrary or capricious.  On the record before me, I find that respondent acted within its discretion pursuant to Education Law §1709(3), in denying Jonathan’s entry into the program.  Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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