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Decision No. 17,776

Appeal of HEATHER MAIO, on behalf of her child EVALYNN DEAN, from action of the Board of Education of the Elmira City School District and the Schuyler-Steuben-Chemung-Tioga-Allegany BOCES regarding dual enrollment.

Appeal of ELIZABETH BRAND, on behalf of OLIVIA MURRAY, from action of the Board of Education of the Elmira City School District and the Schuyler-Steuben-Chemung-Tioga-Allegany BOCES regarding dual enrollment.

Decision No. 17,776

(October 30, 2019)

Cooper, Pautz, Weiermiller & Daubner LLP, attorneys for petitioner, Scott J. Pautz, Esq., of counsel

The Law Firm of Frank W. Miller, attorneys for respondent Elmira City School District, Frank W. Miller, Esq., of counsel

Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent Schuyler-Steuben-Chemung-Tioga-Allegany BOCES, John P. Lynch, Esq., of counsel

BERLIN., Interim Commissioner.--In two separate appeals, petitioners appeal the determination of the Elmira City School District (“Elmira”) and the Schuyler-Steuben-Chemung-Tioga-Allegany BOCES (“BOCES”) (collectively, “respondents”) to deny their children (“the students”) admission to the New Visions Program at the BOCES as dually enrolled students.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Respondent BOCES offers a program called “New Visions,” which is described in the record as “a competitive program seeking highly motivated academically capable and mature high school seniors who are interested in business, education and human development, health and medicine.”  The record indicates that the New Visions program is “very selective” and “only open to students who are high level academic performers.”  The record further reveals that, in order to be accepted, students must have an A- average or better, submit to an extensive interview and compose a personal essay of 200-300 words “that describes ... personal, academic and career goals.”  Once admitted, New Visions students choose an area of focus and spend half of each day, for the entire school year, learning about careers in their chosen track.  This includes completing college coursework in English, Social Studies, and “various other disciplines.”

During the 2018-2019 school year, the students were juniors at a nonpublic school within respondent Elmira’s school district.  At some point prior to May 6, 2019, the students applied to participate in the New Visions program at the BOCES for the 2019-2020 school year.  The parties agree that such enrollment would necessitate dual enrollment in the nonpublic school and the BOCES pursuant to Education Law §3602-c.

By email dated May 6, 2019, respondent BOCES granted the students admission to the New Visions program.  The students each replied via email on the same day, accepting the invitation to enroll.

While not entirely clear, it appears that sometime on or about May 8, 2019, an administrator at either respondent Elmira or respondent BOCES informed petitioners that the students could not be admitted to the New Visions program at the BOCES.  The stated reason for the denial was a provision in Education Law §3602-c which excludes dual enrollment in a “program to prepare pupils for employment in occupations which generally are considered professional or which require a baccalaureate or higher degree” (Education Law §3602-c[1][c]).  The record does not indicate that any official denial of admission was made by either respondent at any time.

On May 31, 2019, petitioners provided written notice to respondent Elmira that, pursuant to Education Law §3602-c, they were seeking dual enrollment services from respondents for the 2019-2020 school year.  In addition, petitioners continued to contact respondents, seeking clarification regarding the students’ admission status.  Receiving no response, petitioners commenced these appeals on June 10, 2019.  Petitioners’ request for interim relief was denied on June 8, 2019.

By letter dated July 22, 2019, petitioner was directed, pursuant to section 275.1 of the Commissioner’s regulations, to join the BOCES as a respondent in this appeal and to revise the caption accordingly by July 30, 2019.  The record reflects that petitioners served respondent BOCES in accordance with this directive.

Petitioners contend that the New Visions program qualifies as career and occupational education within the provisions of Education Law §3602-c.  Petitioners request that I order respondents to grant dual enrollment status to the students and admit them to the New Visions program for the 2019-2020 school year.

Respondents argue that petitioners have failed to state a claim upon which relief may be granted.  Respondent Elmira argues that the appeals must be dismissed as untimely.  Respondents further contend that New Visions is neither a gifted and talented nor a career and technical program, but rather one that prepares high-performing students for careers which require a baccalaureate degree.  As such, respondents argue, the students are not entitled to dual enrollment as students of non-public schools.

First, I must address a procedural matter.  Petitioners’ “reply memorand[a] of law” contain newly raised factual allegations.  A memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799).  As such, while I have reviewed petitioners’ memoranda of law, I have not considered those portions containing new allegations.

Respondent Elmira contends that the appeals must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, as indicated above, it appears that the students were informed of respondents’ denial on May 8, 2019.  Petitioners commenced the instant appeals on June 6, 2019, which is less than 30 days from this determination.  Thus, I find that the appeals were timely commenced.  In any event, the lack of clarity as to when and how respondents communicated their denial of admission to the students would not inure to respondents’ benefit with respect to timeliness.

Turning to the merits, Education Law §3602-c allows for nonpublic school students to receive certain services as dually enrolled students in certain public school programs.  The statute defines “services” as “instruction in the areas of gifted pupils, career education and education for students with disabilities ...” (Education Law §3602-c[1][c]).  “Career education,” the provision relevant to this appeal, is defined as:

training or retraining designed to prepare individuals who are [district residents] ... for gainful employment as semi-skilled or skilled workers or technicians or subprofessionals in recognized occupations and in new or emerging occupations or to prepare pupils for enrollment in advanced technical education programs.

The statute specifically excludes “any program to prepare pupils for employment in occupations which generally are considered professional or which require a baccalaureate or higher degree” from the definition of career education.

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).

Here, petitioners have not met their burden of proving that the New Visions program is a “career education” program within the meaning of Education Law §3602-c(1)(c).[1]  In defining which programs qualify as “career education” programs, Education Law §3602-c(1)(c) contrasts technical education for “semi-skilled or skilled workers or technicians or subprofessionals” (which may be the subject of dual enrollment) with “professional” programs that “require a baccalaureate or higher degree” (which may not be the subject of dual enrollment).

I find, based on the description of the New Visions program contained in the record, that it is a program designed to train students for professional careers that require a “baccalaureate or higher degree.”  The record contains a “student application” packet for the New Visions program which describes the program as a “very selective ... competitive program seeking highly motivated academically capable and mature high school students” which is “only open to students who are high level academic performers.”  In addition, the record indicates that college course work is part of the program’s course of study.  The application packet also indicates that the program “[i]s an honors-level program for seniors who are interested in careers in business, education, human development, engineering, health and medicine.”  “Business” and “health” are explicitly identified as examples of professional programs in §3602-c(1)(c), and the remaining fields in the application packet are of a similar nature to the illustrative examples therein.  Therefore, while the evidence in the record is not overwhelming, I am constrained to find that petitioners have failed to meet their burden of proving that the students are entitled to dual enrollment in the New Visions program under Education Law §3602-c.

I have reviewed the parties’ remaining contentions and find them without merit.

THE APPEALS ARE DISMISSED.

END OF FILE

 

[1] Petitioners do not argue that the New Visions program is a program for “gifted pupils” within the meaning of Education Law §3602-c(1)(a).