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Decision No. 13,054

Appeal of WILLIAM C. LOCKWOOD, on behalf of his son IAN MICHAEL, from action of Joseph S. Verdone, Superintendent, and the Board of Education of the Sayville Union Free School District regarding enrollment in a particular course.

Decision No. 13,054

(November 24, 1993)

Edward J. McGowan, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, on behalf of his son, appeals respondent's refusal to approve Ian Michael's enrollment for the 1993-94 school year in a course offered at BOCES III. The appeal must be dismissed.

Petitioner is a resident of the Sayville Union Free School District. His son entered the eleventh grade at Sayville High School in September 1993. Petitioner claims that prior to the 1990-91 school year, he met with the guidance counselors of the Sayville district to discuss the availability of courses of interest to his two children, specifically Regents-level Russian and aircraft mechanics (FAA certified) which were advertised in respondent's course catalogue. Petitioner alleges that he moved his family to the Sayville district, which is a component district of the Suffolk II BOCES, based on representations that those courses were available. Later, petitioner realized that the aircraft mechanics course would not be offered by Suffolk II BOCES during the 1993-94 school year and requested enrollment of his son in a similar course offered by a neighboring BOCES (BOCES III). Respondent Verdone denied petitioner's request and petitioner appealed that decision to respondent board. By letter dated April 16, 1993, respondent Verdone informed petitioner that his son would not be permitted to enroll in BOCES III since it had been respondent board's policy not to contract with a BOCES other than BOCES II. This appeal ensued. Petitioner's request for a stay pending a final determination of the appeal was denied on August 26, 1993.

Petitioner seeks an order requiring respondents to register his son in the BOCES III aircraft mechanics program. Respondents contend that they never guaranteed petitioner that the mechanic's course would be available and that all occupational educational course offerings are subject to availability at BOCES II. Respondents also contend that they properly denied petitioner's son admittance to BOCES III since respondent board's policy since 1987 has been to only enroll students in BOCES II. As a procedural matter, respondents contend that the appeal is untimely.

Before discussing the merits, I will address the procedural issue raised by respondents. They contend that the appeal is untimely since it was not commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Petitioner received a final determination in this matter on April 16, 1993, yet failed to commence this appeal until August 10, 1993. Petitioner claims that the letter he received from respondent superintendent in April was not a final determination since it was not directly from respondent board. That argument is without merit. When the superintendent informed petitioner by letter dated April 16, 1993 that respondent board denied his request, that was a final determination that triggered the running of the 30 day time limit.

Petitioner requests that the lateness of his appeal be overlooked since he only became aware of the appeals process through correspondence received in August 1993 from the State Education Department. However, ignorance of the appeals process is not enough to excuse a delay in commencing an appeal, except in unusual circumstances (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Saeger, 31 id. 528; Appeal of Pitney Bowes, Inc., 31 id. 290). On the record before me, I find no unusual circumstances. Therefore, the appeal must be dismissed as untimely.

The appeal is also dismissed on the merits. 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 (Appeal of Burhouse, 32 Ed Dept Rep 256; Matter of Witmeyer, 21 id. 190; Matter of Levy, 20 id. 183). In addition, Education Law '4602(1) 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 Burhouse, supra, it was noted that '4602 does not impose an obligation to pay tuition to schools in other districts when a specific occupation course is not available in the schools of the home district. The record indicates that respondent board contracts with the BOCES within its supervisory district to provide its students with a variety of occupational education courses. Section '4602(1) cannot be interpreted to require 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). The result of such a policy would be an onerous burden on school districts.

On the record before me, I find that respondent board has fulfilled its obligations under Education Law ''1709(3) and 4602(1) and has not abused its discretion in refusing to enroll petitioner's son in the BOCES III course. However, to avoid similar confusion in the future, respondent board should clarify its occupational course offerings through BOCES II and delete a particular course from its catalogue if such course has not been recently made available.