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Decision No. 13,073

Appeal of LOUIS BRUNELLI, on behalf of his daughter Maria, from action of the Board of Education of the Lakeland Central School District regarding elimination of a course in Italian.

Decision No. 13,073

(December 22, 1993)

Steyer & Sirota, Esqs., attorneys for respondent, Murray Steyer, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the decision of the Board of Education of the Lakeland Central School District (respondent) to eliminate the foreign language course of instruction in Italian. The appeal must be dismissed.

During the 1991-92 school year and for several years prior, respondent offered foreign language classes in French, Spanish, German and Italian to its middle school students (grades 7 and 8). Due to budgetary constraints, respondent elected to offer only French and Spanish to students entering seventh grade during the 1992-93 school year. To accommodate those eighth grade students who had taken Italian or German in the seventh grade during the 1991-92 school year, those students were permitted to continue those courses in eighth grade during the 1992-93 school year. For the 1993-94 school year, respondent continued to offer only French and Spanish in the middle school.

Petitioner's daughter, Maria, entered seventh grade in September 1993 and wanted to study Italian. Petitioner protests the elimination of the Italian course in the middle school and seeks an order directing respondent to reinstate that class.

Respondent contends that the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR '275.16). Petitioner knew of respondent's decision to eliminate the Italian course by April 1992, when he voiced his objection to that decision at a board meeting. However, he did not commence this appeal until July 27, 1993, approximately 16 months after the decision was made and 11 months after it was implemented. Petitioner asks that I excuse the delay in commencing the appeal because he was unaware of the requirements of the appeal process. The fact that petitioner may not have been aware of his right to appeal is immaterial. Except in unusual circumstances, ignorance of the appeal process is not a basis to excuse a delay in commencing an appeal (Appeal of Casid, 30 Ed Dept Rep 332; Appeal of Reynolds, 29 id. 288; Appeal of Schwartz, 28 id. 258). I find no unusual circumstances to excuse the delay in this case. Accordingly, the appeal must be dismissed as untimely.

The appeal is also dismissed on the merits. Education Law '1709(3) authorizes a board of education to "prescribe the course of study" to be followed in the schools of the district. That authority includes the discretion to determine, within bounds set by statute and regulation, which classes will be offered in the district (Appeal of Fox, et al., 30 Ed Dept Rep 19; Appeal of Feller, 28 id. 321). The responsibility for making such a decision rests with the board and is a matter of educational policy within the discretion of the board (Matter of Raffone, 13 Ed Dept Rep 245).

Petitioner has failed to establish that respondent abused its discretion by eliminating Italian from the middle school curriculum. Therefore, I will not substitute my judgment for that of respondent in this matter (Matter of Reilly and Juliano, 20 Ed Dept Rep 191). I note that respondent's action was taken after careful consideration of the students' needs and the necessity of confronting formidable financial challenges facing the district. The termination of existing programs for budgetary reasons, though unfortunate, is certainly within the discretion of the board (Appeal of Boss, 28 Ed Dept Rep 69; Matter of Mennella, 21 id. 721).

Petitioner's claims that the elimination of Italian is improper because there was insufficient input from district voters and because many people would have preferred that the board eliminate another language rather than Italian are without import. While a board of education may solicit the views of the community on what courses of instruction shall be offered, the responsibility for making such decisions rests with the board. There is nothing in the Education Law which confers upon the voters the power to prescribe courses of instruction for the schools of the district (Matter of Raffone, supra).

I have reviewed petitioner's remaining contentions and find them without merit.