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Decision No. 12,823

APPEAL OF SUSAN M. BURHOUSE, on behalf of her daughter SANDRA, from the refusal of the Board of Education of the Connetquot Central School District to approve enrollment in a particular course.

Decision No. 12,823

(October 20, 1992)

Edward J. McGowan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals on behalf of her daughter, Sandra, from respondent's refusal to approve Sandra's enrollment in a course offered at the Nassau BOCES Cultural Arts Center for the 1992-93 school year. The appeal must be dismissed.

Petitioner is a resident of respondent school district, and her daughter entered ninth grade in September 1992. Sandra has expressed an interest in drama and had been accepted in a drama course offered by the Nassau BOCES. Respondent, which is not included within the Nassau BOCES supervisory district, refused to approve Sandra's attendance at that program, citing fiscal considerations and its policy of not contracting with the Nassau BOCES. Petitioner has instituted this appeal seeking an order directing respondent to contract with the Nassau BOCES to bear the tuition expense of her daughter's attendance at the BOCES program and to provide transportation to and from the program. Petitioner contends that her daughter is being discriminated against because it provides vocational courses for other students. I find that argument unpersuasive. 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 (Matter of Witmeyer, 21 Ed Dept Rep 190; Matter of Levy, 20 id. 183; Matter of Wuischpard, 8 id. 116).

Education Law '1709(3) allows boards of education discretion in choosing curricula for their students, but the range of discretion under that section is limited by Education Law '4602(1), which provides:

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

In Witmeyer, supra, it was noted that '4602 does not impose an obligation to pay tuition to schools in other districts when a specific occupational course is not available in the schools of the home district. It is apparent from the record that respondent has fulfilled the duty imposed by '4602(1), since it has contracted with the BOCES within its supervisory district to provide its students with a variety of occupational education programs. Section 4602(1) cannot be interpreted as requiring school boards to provide funding for every conceivable vocational course which any particular student may desire to take, regardless of how beneficial the course would be for the student (Levy, supra). Such an interpretation would result in an overwhelmingly onerous burden being placed on school boards (Witmeyer, supra).

Since respondent has made a variety of occupational education courses available to its students, it has complied with the mandates contained in Education Law '4602(1). Therefore, respondent did not abuse its discretion under Education Law '1709 in determining not to make the Nassau BOCES course available to petitioner's daughter.

Petitioner also contends that her daughter should be allowed to attend the Nassau BOCES program because she intends to be a professional actress and the BOCES program would better prepare her than anything respondent has to offer. The real issue in this case is not the relative merits of the Nassau BOCES program versus what is available in respondent district, but whether or not respondent has fulfilled its responsibilities under Education Law ''1709(3) and 4602(1). Nothing in this record indicates that respondent has not done so.

Petitioner also notes that several Suffolk County school districts send students to Nassau BOCES programs. However, the fact that some districts in Suffolk County have opted to contract with the Nassau BOCES is not a basis for requiring respondent to do so.

Petitioner also maintains that because most of the cost of tuition and transportation for her daughter to attend the BOCES program is reimbursable to the district by the State, respondent's refusal in this matter is unreasonable. Petitioner is mistaken. Boards of education are required to provide vocational education in an economical and reasonable manner, and a board which failed to consider costs merely because most of it would be paid by taxpayers elsewhere in the State would be derelict in its duty.

On the record before me, there is no proof that respondent abused its discretion under Education Law '1709(3) in refusing to make the Nassau BOCES drama program available to petitioner's daughter.