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Decision No. 13,921

Appeal of DARLENE A. GUARDI, on behalf of APRIL A. GUARDI, from action of the Board of Education of the Richfield Springs Central School District regarding admission to the National Honor Society.

Decision No. 13,921

(April 15, 1998)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision by the Board of Education of the Richfield Springs Central School District ("respondent") not to select her daughter, April, for membership in the National Honor Society. The appeal must be dismissed.

The National Honor Society ("NHS") recognizes students who exhibit outstanding scholarship, character, leadership and service. In selecting members and operating the local chapter of the NHS at Richfield Springs High School, respondent follows the procedures and policies outlined in the NHS Constitution and Handbook (the "Handbook") issued by the NHS’s National Council. Sophomores, juniors and seniors with a cumulative grade point average of at least 85 are eligible to be considered for membership. In addition to obtaining this grade point information, the school’s NHS advisor also distributes to the teachers in the school a form containing the names of the NHS candidates. Each teacher is given an opportunity to rate the candidates on their character using criteria such as honesty, cooperation and responsibility.

In accordance with the NHS Constitution, a faculty council (the "council") consisting of five voting members is appointed each year to select students for membership in the NHS. When making selection decisions, the council considers the student’s grade point average, the character ratings submitted by teachers, participation in school activities, and leadership roles in certain activities. The council uses a point system as an aid in evaluating the qualifications of the candidates. The NHS advisor compiles the information submitted and calculates the total points for each student, and there is no minimum or maximum number of points which would automatically qualify or disqualify a candidate. Information submitted by students on survey forms regarding work experience and community activities is not included in the point calculation, but may be considered by the council as factors which would further support admission to the NHS. After considering all of the information received on each candidate, the council then votes on selection of the candidate for the NHS. In order to be selected, a student must receive the affirmative vote of a majority of the members of the council.

In May 1997, April, then a sophomore at Richfield Springs High School, submitted an application for the NHS. The council met on May 30, 1997, to consider 17 candidates. By majority vote, the council selected 9 candidates for membership, and chose not to select the other 8, including April. The students selected for membership were advised of their selection on June 4, 1997. Although the school district did not issue notices of rejection, during the first week of June 1997 April became aware that she had not been selected for membership.

Petitioner appealed to respondent on or about July 7, 1997, asking for specific reasons for the non-selection. Respondent passed a resolution on September 8, 1997 upholding the council’s decision, having found no basis to conclude that the council’s decision was tainted by bias, conflict of interest or illegal discrimination, or that the decision was arbitrary, capricious or irrational. The superintendent communicated respondent’s decision to petitioner by letter dated September 10, 1997. This appeal ensued.

Petitioner contends that respondent improperly denied her daughter admission into the NHS and refused to provide her with specific reasons for April’s non-selection. She also alleges that information about April’s community involvement and work experience was not provided to the five members of the council. She further maintains that the NHS advisor, who is also the band instructor, was biased in favor of students in the band, and that April was not selected for membership because she was neither a member of the band nor a faculty member’s child. Additionally, in apparent support of her claim of bias, petitioner alleges that three members of the school’s NHS have been convicted of violations of the law. Of the three, two students who were members of the band were allegedly not disciplined, but the third who was not a member of the band was dismissed from the NHS. Petitioner seeks to overturn the non-selection decision, and also requests an order requiring that the existing selection process be reviewed and changed to reflect the intentions of the NHS Constitution, compelling the school district to adopt local by-laws and make public the requirements for selection, requiring respondent to give formal notice of non-selection to students, and further requiring respondent to read and understand the NHS Constitution.

Respondent denies petitioner’s claims of bias or improper procedures, and asserts that the selection process used by the district was consistent with the NHS Constitution and Handbook. Respondent further states that the district is in the process of developing and adopting local by-laws consistent with the NHS Constitution and providing public notice of the procedures used to select members of the NHS. Respondent expects the by-laws and public notice process to be in place before the next selection of NHS members in the spring of 1998.

It appears that the actions taken by respondent have addressed two of petitioner’s requests for relief, namely the adoption of local by-laws and public disclosure of the by-laws and selection criteria. I note that these steps are appropriate, as the NHS Constitution states that the local chapters will enact by-laws and publish a description of the selection procedure in an official school publication. I am satisfied that respondent has taken steps to comply with these NHS requirements, however belatedly, and I need not discuss these issues further in this decision.

I must initially address a procedural matter. Respondent in its answering affidavits refers to a survey form which petitioner apparently attached as an exhibit to respondent’s copy of the petition. Respondent denies that the exhibit is a copy of the actual form submitted by April, and is uncertain whether the information supplied on the exhibit is the same as the information considered by the council on May 30, 1997. However, no such survey form is attached to the original petition filed with my Office of Counsel, although petitioner attached a letter advising that the "last part of Exhibit G," presumably this survey form, is unavailable for this copy of the petition but may be obtained from respondent. It is petitioner’s responsibility to forward all papers served in the action to me to rule upon her appeal (8 NYCRR "275.9). As petitioner failed to submit a copy of the survey form with the original petition, it is not part of the record before me and I cannot consider it.

This appeal must be dismissed on the merits. Membership in the NHS is a privilege, not a right (Matter of Rezac, et al., 18 Ed Dept Rep 327). A decision regarding admission to the NHS is left to the discretion of the local board of education and its faculty, and will not be set aside unless that decision is arbitrary, capricious and without a rational basis (Appeal of Andela, 36 Ed Dept Rep 178; Appeal of Friedberg, 34 id. 284; Appeal of Brenner, 25 id. 219; Appeal of Torre-Tasso, 25 id. 47).

I find that the record is insufficient to establish that the council members did not have all the information submitted by April in her application when it voted on NHS membership. The only proof submitted by petitioner is a description of a conversation with one teacher, a voting member of the council, who said that he was not aware of April’s community involvement or work experience. However, this teacher submitted an affidavit stating that he had not known petitioner’s identity at the time of this conversation, and could answer only in general terms.

Unfortunately, neither party furnished me with a copy of the application filed by April in May 1997. In addition, petitioner did not provide a particularized description of the information allegedly supplied to but not considered by the council, and submitted only a series of letters written after May 30, 1997 concerning April’s community activities. Similarly, respondent did not submit any affidavits that identified with particularity the information actually considered by the council with respect to April’s selection.

It is petitioner, however, who has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (Appeal of Rampello, 37 Ed Dept Rep 153; Application of McDougald, 34 id. 424). Since there is nothing in the record except petitioner’s description of a conversation with a council member, petitioner has not sustained her burden of showing that the council failed to consider all relevant and available information concerning April’s candidacy, or that their selection procedures violated the NHS Constitution or Handbook.

Petitioner has also submitted insufficient proof of any bias or conflict of interest in the selection of NHS members. She alleges that students who were members of the band or children of faculty members were selected for NHS membership over others. However, respondent specifically refuted the allegations of bias, and the record indicates that only 4 of the 9 students selected were in band, and 2 were faculty members’ children. Thus, petitioner’s conclusory claims of bias are not supported by the record.

Petitioner further contends that it was improper to deny her request for a written explanation of the reasons for April’s non-selection, and to fail to provide public notice of the admission procedures, but these claims are not grounds for invalidating the selection process. Reasons for denial of admission are not required to be given to an unsuccessful candidate for NHS, and failure to publish admission procedures is not a basis to reconsider admission (Appeal of Friedberg, 34 Ed Dept Rep 284; Appeal of Torre-Tasso, 25 id. 47).

Petitioner’s request for an order compelling formal notification of non-selection must also be denied. There is no requirement for such notification in the NHS Constitution or Handbook, so failure to provide notification of non-selection cannot be considered arbitrary or capricious. Respondent may, however, wish to consider inclusion of a non-selection notification while adopting local by-laws and procedures.

Petitioner has thus failed to establish by sufficient evidence that the council’s selection procedures violated any of the requirements of the NHS Constitution or Handbook, irrespective of respondent’s failure to adopt local by-laws or publish the selection procedures. Accordingly, I find that respondent’s determination to uphold the council’s decision regarding petitioner’s daughter was not arbitrary and capricious or without a rational basis, and under the circumstances I will not substitute my judgment for that of the council (Appeal of Brenner, 25 Ed Dept Rep 219; Appeal of Torre-Tasso, supra). Finally, I find no substantiation in the record that respondent’s members are unaware of the content of the NHS Constitution or Handbook, and deny petitioner’s request to order the members to read the NHS publications.