Appeal of P.D., on behalf of her son R.D., from action of the Board of Education of the Willsboro Central School District regarding admission to the National Junior Honor Society.

Decision No. 17,399

(May 30, 2018)

Law Office of Bryan Liam Kennelly, attorneys for petitioner, Bryan Liam Kennelly, Esq., of counsel

Harris Beach, PLLC, attorneys for respondent, Douglas E. Gerhardt, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Willsboro Central School District (“board”) to admit her son, R.D. (the “student”), to the National Junior Honor Society (“NJHS”).  The appeal must be dismissed. 

During the 2016-2017 school year, the student was an eighth-grade student in the district’s middle school and applied for admission to the NJHS.  By letter dated March 8, 2017, respondent’s NJHS Faculty Council (“Council”) advised petitioner that the student was not selected for NJHS membership. 

By letter dated March 15, 2017, petitioner appealed the Council’s determination to respondent’s superintendent.  Specifically, in petitioner’s appeal letter, petitioner claimed that (1) at least three of the student’s teachers did not receive or complete a faculty input form; (2) the selection process involved hearsay and rumor; (3) records were not kept regarding the student; (4) the NJHS advisor did not fulfil her duties; (5) faculty members were not asked to write comments or justify any low ratings; (6) justification using criteria for non-selection was not given by the student’s advisor; and (7) the selection procedure for the NJHS was not published for parents and students.

By email dated March 19, 2017, the superintendent approved petitioner’s appeal based on technical/procedural issues and remanded the issue back to the Council for reconsideration.  On March 24, 2017, the superintendent reconvened the Council, which upheld its decision not to include the student in the NJHS.  By email dated March 27, 2017, the superintendent advised petitioner of the Council’s determination.  Petitioner subsequently appealed the determination to the board at its meeting on March 28, 2017.  On April 21, 2017, the superintendent informed petitioner that the board denied her appeal.   This appeal ensued.

Petitioner asserts that respondent’s decision to deny the student admission to the NJHS was arbitrary and capricious because it did not apply the five pillars of the NJHS selection process and was unfamiliar with the constitution, by-laws, and other materials pertaining to the NJHS.    Petitioner requests an order directing respondent to review the non-selection of the student to the NJHS and directing respondent to review its constitution, by-laws, and other district materials pertaining to the NJHS and revise them.

Respondent argues that the appeal must be dismissed for lack of proper service and for failure to join a necessary party.  Respondent also contends that petitioner failed to state a case or controversy and to establish a clear legal right to the relief sought.

I must first address the procedural issues.  Respondent asserts that the appeal must be dismissed for lack of proper service because the student’s father served the petition.  Section 275.8(a) of the Commissioner’s regulations provides that “[p]leadings may be served by any person not a party to the appeal over the age of 18 years.”  Respondent asserts that the student’s father is a “party in interest” because “[b]y her own admission, [p]etitioner verifies [the student’s father] was a part of the internal appeals process now being challenged in this matter.”  As a result, according to respondent, service by the student’s father is invalid.  However, the student’s father is not a party to the appeal and therefore I decline to dismiss the appeal for lack of proper service.    

Respondent asserts that the appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Respondent contends that “[p]etitioner challenges the process which involved the Faculty Council and Superintendent” but “fails to join the Superintendent and/or members of the Faculty Council.”  Although the superintendent and members of the Council are not named as respondents in the appeal, petitioner’s affidavit of service indicates that the superintendent was personally served.  However, only the board is named in the caption as a respondent and has appeared in this appeal.  Nevertheless, I decline to dismiss for failure to join a necessary party because the petition does not seek any relief as to the superintendent or any members of the Council and a decision in petitioner’s favor would not affect their rights (cf. Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026).   

Turning to the merits, petitioner asserts that respondent’s decision to deny the student admission to the NJHS was arbitrary and capricious because respondent did not apply the five pillars of the NJHS selection process and was unfamiliar with the constitution, by-laws, and other materials pertaining to the NJHS.  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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Like membership in the National Honor Society, membership in the NJHS is a privilege, not a right (see NJHS Constitution, Article VIII, §1; Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,590; Appeal of Rotella, 40 id. 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).  A decision regarding NJHS admission 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 a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,590; Appeal of Rotella, 40 id. 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).

Petitioner claims that the board, the student’s advisor, the Council, and the superintendent were “totally unaware of the [NJHS] constitution, by-laws and other district materials pertaining to the [NJHS].”  Petitioner, however, fails to substantiate these claims, which amount to nothing more than mere speculation.  The petition alleges that the student is consistently on the high honor roll, is a member of the basketball, soccer, and baseball teams and is an altar server in his church.  However, while petitioner expresses disagreement with the final non-selection decision on such basis, the only grounds cited in the petition for finding the decision arbitrary and capricious are the alleged lack of knowledge of those who participated in the decision and the appeal from that decision and the alleged failure to apply the five pillars of the NJHS process.

The record reveals that the procedure followed in reviewing NJHS applications was applied consistently to all applicants.  The committee surveyed staff for evaluations concerning each applicant’s character in several categories. The record reflects that the superintendent reviewed the selection process to ensure that it was fair and consistent with district procedures.  According to the superintendent, the decision not to admit the student to the NJHS was due to concerns in the areas of character and leadership, “particularly in the descriptors that use the terms helping others, cooperation, peers and respect.”  Article IX, section 2 of the NJHS Constitution specifically provides for evaluation of candidates on the basis of service, leadership and character, which are three of the five criteria for determining membership in the process set forth in the NJHS Constitution.  Of necessity, therefore, a Faculty Council’s decision on selection of candidates based on such criteria is partly subjective, requiring judgment (Appeal of K.A., 42 Ed Dept Rep 389, Decision No. 14,889). In this case, petitioner has not articulated a basis for concluding that the Council, or respondent in upholding the Council’s decision, applied different acceptance standards to petitioner’s son or acted out of bias.  Petitioner has not proven that the Council and respondent failed to consider all relevant and available information regarding the student’s candidacy and has not proven that their selection procedures violated the NJHS Constitution or NJHS Handbook.  Under these circumstances, therefore, petitioner has not met her burden of demonstrating a clear legal right to the relief requested (see Appeal of Andela, 38 Ed Dept Rep 388, Decision No. 14,062).

Further, the student was provided a full and fair opportunity to apply to the NJHS, was considered and reconsidered by the Council, and then reviewed by the board as well as the national governing body of the NJHS in a separate appeal.  Petitioner did not submit a reply or any other evidence to refute respondent’s contentions.  Thus, on this record, I find that petitioner has not sustained her burden of proving that the denial of the student’s admission to the NJHS was arbitrary or capricious under the circumstances presented.

Although the appeal must be dismissed for the reasons discussed above, I note that this result should not be construed to diminish the student’s academic accomplishments.  Rather, it means only that petitioner has not proven that respondent’s determination was arbitrary or capricious.

THE APPEAL IS DISMISSED.

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