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Decision No. 12,990

Appeal of SHEILA and MARK SPORER, on behalf of their son Marlon, from action of the Board of Education of North Shore Central School District, denying participation in a BOCES program.

Decision No. 12,990

(August 24, 1993)

Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz, Esq. and Marjorie S. Leff, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal on behalf of their son, Marlon, from the North Shore Central School District's ("respondent") refusal to place their son in the BOCES Cultural Arts Center Program ("the program") for the 1993-94 school year. The appeal is dismissed.

Petitioners' son has a strong interest in the cultural arts. Because of his interest and talents, petitioners seek his placement in the BOCES cultural arts program for the 1993-94 school year, when he will be in eleventh grade. Petitioners first inquired about placement of their son in the program in the 1990-91 school year, when their son was in eighth grade. After a meeting between petitioners and personnel from respondent's district, it was decided that, since respondent does not send students to the BOCES program, respondent would tailor its own art program to suit the student. In the summer preceding the 1991-92 school year, prior to the beginning of the student's placement in ninth grade, petitioners met with the high school's principal to discuss their son's art education program. During the 1991-92 and 1992-93 school years, the district's standard art program was modified to accommodate petitioners' son's interests and talents. Specifically, petitioners' son was allowed to take advanced art courses without having completed the prerequisites. Petitioners pursued their son's placement at the BOCES program for the 1993-94 school year. On March 29, 1993, petitioners' request was denied. On April 14, 1993, in response to petitioners' request for reconsideration, respondent affirmed its decision. This appeal was filed on May 5, 1993.

Petitioners assert that the BOCES Cultural Arts Program is the only appropriate placement for their son, and seek an order directing respondent to enroll their son there. Respondent contends that the appeal is untimely. Further, respondent argues that pursuant to Education Law '1709(3), it has no legal obligation to place petitioners' son in this program.

An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). The time to bring an appeal is determined by the date the decision was made (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). Petitioners challenge respondent's March 29, 1993 decision in an appeal commenced on May 5, 1993, more than 30 days from the date of respondent's decision. Petitioners offer as an excuse that they sought the board's reconsideration on April 14, 1993. A request for reconsideration of a decision does not extend the time in which to bring an appeal (Matter of Defense, 24 Ed Dept Rep 198; Matter of Tripi, 21 id. 349). Therefore, the appeal must be dismissed as untimely.

Even if the appeal were timely, I would dismiss it on the merits. Education Law '1709(3) vests boards of education with the authority to prescribe the courses of study for the schools of the district, including the power to contract for BOCES services. Consistent with prior decisions, a board of education is not required to send its students to the specific program at issue in this appeal (Appeal of Giordano, 29 Ed Dept Rep 210; Matter of Levy, 20 id. 183; Matter of Weingarten, 20 id. 511; Matter of Witmeyer, 21 id. 190; Matter of Defense, 24 id. 198). Moreover, absent evidence that the board's actions were arbitrary or capricious, I will not substitute my judgment with respect to student placement (Appeal of Kendrick, 32 Ed Dept Rep 464; Matter of Ferran, 21 id. 473; Matter of Boussios, 18 id. 590). The record in this case reflects that respondent's policy does not allow for placement of students in this BOCES program. Notably, the board also rejected requests from two other parents for placement in the same program. Accordingly, I find respondent's refusal not to place petitioners' son in the program neither arbitrary nor capricious, nor contrary to Education Law '1709(3).