Appeal of WAYNE V. BERBERT, on behalf of his son CHRISTIAN, from action of the Board of Education of the Commack Central School District regarding educational placement.

Decision No. 16,967

(August 31, 2016)

Lamb & Barnosky, LLP, attorneys for respondent, Mara N. Harvey, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Commack Central School District (“respondent”) denying his son, Christian (“the student”), a waiver of the requirement that all students enrolled in Band 9 participate in marching band.  The appeal must be dismissed.

During the 2015-2016 school year, the student attended eighth grade in respondent’s district.  By letter dated February 16, 2016, petitioner wrote to respondent’s superintendent of schools (“superintendent”) requesting clarification of respondent’s policy that requires ninth grade students enrolled in Band 9 to also participate in its marching band, an extracurricular activity.  The policy exempts students participating in a district fall sport.  Petitioner also asked the superintendent to “reconsider” the requirement and stated that the time commitment of marching band is impossible for his son, who is involved in certain other private activities that are not affiliated with school.  For example, the student is a competitive gymnast, who, petitioner asserts, spends a minimum of 10-12 hours training each week.

By letter dated March 4, 2016, the superintendent responded and stated that the district had completed an investigation in response to petitioner’s concerns.  The superintendent stated that the investigation confirmed that participation in marching band is required for all students in the Band 9 course, with the exception of those students participating in a school fall sport.  This reiteration of the course requirements, in essence, denied petitioner’s request for his son’s exception from the marching band requirement.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 15, 2016. 

Petitioner argues that the student is a heavily decorated gymnast and practices from 6:00 p.m. until 9:15 p.m. four to five times per week.  He contends that this commitment, coupled with marching band, would leave no time for homework or other activities, such as his private saxophone lessons.  Petitioner further argues that, if gymnastics was offered in the public schools, the student would be exempt from participating in marching band based upon the waiver for fall athletes.  In his request for relief, petitioner does not seek annulment of respondent’s policy, but requests that his son “be allotted the same consideration as the [d]istrict’s other fall athletes by being able to forgo marching band and staying in the band program.” 

Respondent argues that the appeal must be dismissed because petitioner has failed to establish a clear legal right to the relief requested.  It asserts that its policy regarding the Band 9 curriculum requirement is within its discretion and is not arbitrary, capricious or unreasonable.

Boards of education have broad authority to prescribe the course of study in the schools of a district (Education Law §§1709(3), 2503(1) and (4)(c); Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662; Appeal of Murphy, 39 id. 562, Decision No. 14,311; Appeal of Keen, 32 id. 299, Decision No. 12,836).  The U.S. Supreme Court has confirmed that school authorities enjoy broad discretion in regulating matters of curriculum (Bd. of Educ., Island Trees U.F.S.D. No. 26 v. Pico, 457 US 853, 869).  I will not substitute my judgment for that of the board on curriculum issues absent evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662; Appeal of Murphy, 39 id. 562, Decision No. 14,311; Appeal of Keen, 32 id. 299, Decision No. 12,836).  I can make no such finding on the record before me.  

The Education Law contains no specific mandates for music or band (see Appeal of Garifi, 52 Ed Dept Rep, Decision No, 16,381; Appeal of Graham, 30 id. 498, Decision No. 14,292).  Moreover, reasonable conditions may be imposed upon a student’s participation in an activity such as school band, for which academic credit is given (Appeal of Garifi, 52 Ed Dept Rep, Decision No, 16,381; Matter of Ingersol, 6 id. 137, Decision No. 7,756).  Further, the educational benefits of band performances outside of school hours were acknowledged in Matter of Ingersoll (6 Ed Dept Rep 137, Decision No. 7,756). 

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

The record indicates that Band 9 meets the one unit of credit in art and/or music required for graduation.  Marching band constitutes a six week commitment to practices and performances in the fall, with two additional spring parades.  Upon successful completion of the marching band participation, students are awarded one community service credit.  Petitioner seeks an exemption for his son from the marching band requirement.  The basis for his request is that his son has a number of outside private commitments, including participation in gymnastics and private saxophone lessons.  Petitioner provides no legal basis entitling his son to such an exemption.  Nor is respondent’s refusal to grant an exception based on a student’s other private commitments unreasonable, arbitrary or capricious.  Thus, I decline to substitute my judgment for that of respondent in determining the course requirements for Band 9 and denying petitioner’s son an exemption therefrom.  While it is regrettable that the student cannot participate in all of his desired activities, petitioner has failed to meet his burden of establishing a clear legal right to the exemption sought and requiring respondent to enroll the student in Band 9 without his participation in marching band.

THE APPEAL IS DISMISSED.

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