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Decision No. 14,393

Appeal of PHILLIP AND LEZLEE TUCKER, on behalf of DEVIN TUCKER, from action of the Board of Education of the City School District of the City of Saratoga Springs regarding selection for jazz band.

Decision No. 14,393

(June 19, 2000)

Bernadette M. Hollis, Esq., attorney for petitioners

Whiteman Osterman and Hanna, attorneys for respondent, Karen E. Sosler, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the City School District of the City of Saratoga Springs ("respondent") excluding their son, Devin, from the high school jazz band for the 1999-2000 school year. The appeal must be dismissed.

In May 1999, Devin was one of three percussionists who auditioned for two positions in the high school jazz band for the 1999-2000 school year. According to respondent, prior membership in the jazz band does not guarantee future membership, and all students must audition each year. Mark Beaubriand, the jazz band director, avers that since 1981 he and another teacher have jointly conducted the auditions, with each recording observations and impressions on an evaluation form. The students are then ranked. The evaluation forms for the May 1999 auditions indicate that Devin ranked third for percussion. On June 4, 1999, Mr. Beaubriand notified Devin that he was not selected as a member of the jazz band for 1999-2000. However, he was selected for the symphonic band.

Thereafter, petitioners retained Ms. Hollis as their attorney. Petitioners requested that Assistant Principal Stuart LaDue meet with them and Ms. Hollis to discuss Devin’s situation. Mr. LaDue agreed to meet with petitioners, but not with their attorney. A series of letters and telephone calls between Ms. Hollis, Superintendent MacFadden and the respondent’s counsel ensued. The superintendent informed petitioners that in accordance with district policy, they had a right to review Devin’s records upon request and that district personnel were available to meet with them concerning their questions regarding the jazz band, but that Ms. Hollis would not be permitted at these meetings. Counsel for respondent also suggested that petitioners could photocopy Devin’s records to share them with Ms. Hollis if they desired.

Petitioners claim that Devin was abruptly removed and another student substituted as the drummer for the jazz band without explanation. Petitioners object to Devin’s exclusion from the jazz band in 1999-2000 since he was a member of the band in the two previous school years and, according to petitioners, has great musical aptitude and plans a musical career. They assert that Devin has had no behavioral problems in music, yet beginning in March 1999, Mr. Beaubriand began criticizing Devin for no apparent reason, causing him emotional distress. Petitioners imply that Mr. Beaubriand may have harbored an underlying prejudice against Devin because he is adopted, has ethnic characteristics and an exotic appearance. Petitioners also claim that the district has impeded their rights to legal representation. Petitioners request that I order Devin restored as drummer in the high school jazz band for the 1999-2000 school year; that their attorney be allowed direct access to Devin’s educational records and participation in any conferences or communication between them and the district, including the next board of education meeting in executive session; and that the district communicate solely with their counsel and pay for their legal fees and costs.

Respondent asserts that the appeal is untimely and fails to state a claim upon which relief may be granted. Respondent also asserts that the Commissioner lacks authority to award legal fees or costs and lacks jurisdiction over claims concerning violations of the Family Educational Rights and Privacy Act ("FERPA," 20 U.S.C. "1232g).

As a threshold matter, the appeal must be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioners were notified on June 4, 1999, that Devin was not selected for membership in the jazz band. The petition was not served until July 20, 1999, more than 46 days later. Petitioners assert that they were attempting to exhaust their administrative remedies by requesting conferences with Superintendent MacFadden. However, those requests were essentially requests for reconsideration, which do not extend the time within which to commence an appeal (Appeal of Bowers, 39 Ed Dept Rep 206, Decision No. 14,216; Appeal of Schonfeld, 38 id. 306, Decision No. 14,040; Appeal Ytuarte, 36 id. 238, Decision No. 13,172). Accordingly, the appeal is dismissed as untimely.

The appeal must also be dismissed as moot. In their request for relief, petitioners seek Devin’s membership in the jazz band for 1999-2000 school year. The Commissioner of Education will only consider matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of K.M., 39 Ed Dept Rep 301, Decision No. 14,243; Appeal of a Student with a Disability, 38 id. 91, Decision No. 13,990). As the 1999-2000 school year has ended, Devin cannot be a member of the jazz band for this year. Accordingly, no meaningful relief can be granted and the appeal must be dismissed as moot.

It is well settled that the Commissioner of Education lacks authority to award costs or attorney's fees (Appeal of Wendy and Robert L., 39 Ed Dept Rep 224, Decision No. 14,222; Application of Coleman, 37 id. 391, Decision No. 13,887). Thus, to the extent petitioners seek attorney's fees and costs, the appeal must be dismissed.

Respondent also correctly asserts that the Commissioner lacks jurisdiction to consider petitioners’ FERPA claims regarding access to student records. The United States Secretary of Education, and not the Commissioner of Education, has jurisdiction over alleged violations of FERPA (Appeal of Lawson, 38 Ed Dept Rep 713, Decision No. 14,124; Appeal of Schuler, 37 id. 512, Decision No. 13,915). However, I note that respondent offered to make Devin’s records available to petitioners.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. A board of education has very broad authority to prescribe the course of study and to establish reasonable standards of conduct for participation in extracurricular activities, and unless it is shown that the board has abused its discretion, its policy will be upheld (Education Law ""1709(3) and 2503(1); Appeal of Catherine B., 37 Ed Dept Rep 34, Decision No. 13,797; Appeal of Douglas and Judy H., et al, 36 id. 224, Decision No. 13,707; Appeal of Shaw, 36 id. 189, Decision No. 13,697). While it is unfortunate that the band could not accommodate three percussionists as it apparently had done once before during the 1988-1989 school year, I do not find respondent’s audition and evaluation process arbitrary or unreasonable. On the evaluation forms, the lower score represents the higher rating. Devin received scores of 22 and 25, compared with scores of 19 and 23, and 14 and 12 for the other two percussionists, one of whom was new to the district and one of whom had been a band member the previous year. Accordingly, I see no basis in the record to determine that respondent acted arbitrarily or capriciously.

Finally, petitioners allude to potential discrimination against their son. Mr. Beaubriand denies any prejudicial feelings or actions against Devin. Mr. Beaubriand avers that Devin demonstrated a lax attitude and had minor behavioral problems during practice and in music class. Nevertheless, he states that the decision not to select Devin for jazz band was based solely on his audition performance. Petitioners bear the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (Appeal of Davis, 37 Ed Dept Rep 17, Decision No. 13,793). They provide no evidence of discrimination. Since petitioners have failed to meet their burden, the appeal must be dismissed.

I have considered the parties’ remaining arguments and find them without merit.