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Decision No. 14,500

Appeal of J.K. and M.B., on behalf of their daughter, from action of the Board of Education of the Thousand Islands Central School District regarding educational placement.

Decision No. 14,500

(November 30, 2000)

O’Hara & O’Connell, attorneys for respondent, Dennis G. O’Hara, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the denial by the Board of Education of the Thousand Islands Central School District ("respondent") of their request for an alternative placement for their daughter, from the sixth grade Home and Careers course taught by Linda Stage. The appeal must be dismissed.

Petitioners’ daughter was assigned to Linda Stage’s Home and Careers class for the 1999-2000 school year. This is a required course, which is taught on alternating school days during sixth and seventh grade in respondent’s district. Prior to the beginning of the school year, petitioners informed the Middle School Principal, Michael Bashaw, that the assignment to Ms. Stage’s class had caused their daughter emotional distress, due to an alleged incident which occurred in December 1998, off school premises. This incident involved an accusation by petitioners that Ms. Stage had improperly disciplined their nine-year-old son at an ice skating practice. Petitioners’ daughter apparently witnessed, but was not involved in, the incident. Petitioners did not want their daughter to attend this class, and suggested that she be provided with some type of alternative instruction for the Home and Careers course.

By letter dated September 14, 1999, Mr. Bashaw informed petitioners that the alternatives they suggested would not be viable. He also stated in this letter that petitioners’ daughter would be required to begin attending the class on September 16, 1999. Soon after receiving this letter, petitioners appealed Mr. Bashaw’s decision to respondent board, which denied petitioners’ request to excuse their daughter from the Home and Careers course.

On September 28, 1999, petitioners sent their daughter to a psychologist for evaluation, who determined that she was experiencing an adjustment problem to her Home and Careers course. Principal Bashaw, upon reading the psychologist’s report, agreed to postpone the student’s entry into Ms. Stage’s class until November 16, to provide time for her to obtain counseling. By letter dated October 13, 1999 Mr. Bashaw offered to have a guidance counselor accompany petitioners’ daughter to the class until she made the adjustment to the classroom. Petitioners’ daughter did not attend the class on November 16, and has not attended it at any time since that date. This appeal ensued. Petitioners’ request for interim relief was denied on December 17, 1999.

Petitioners contend that witnessing the December 1998 incident between Ms. Stage and their son at the skating rink distressed their daughter. They maintain that when their daughter learned that Ms. Stage was to be one of her sixth grade teachers, she was very upset. Petitioners claim that upon first contacting Mr. Bashaw, they were told that their daughter could perform the work for the Home and Careers course in the library under the supervision of a counselor. However, petitioners claim, once school started, they were informed by school officials that the curriculum did not lend itself to independent study and their daughter would be required to attend Ms. Stage’s class.

Petitioners allege that as a result of respondent’s insistence on this point, they sought psychological help for their daughter. The psychologist who evaluated their daughter concluded that:

(the student) displays vulnerability to emotional extremes in response to her concerns about Mrs. Stage. There is no evidence that your daughter’s fears can be dispelled in a timely manner. It does not appear realistic for (the student) to resolve issues in time to participate in the regular Home and Careers class. I continue to recommend that you not enroll (the student) in this class as a step in helping to reduce her stress.

(The student’s name has been omitted from this quote).

Based upon the above-cited evaluation, petitioners suggested a number of alternatives to petitioners’ daughter attending class, including that the class be videotaped, that the student be bused to a nearby school to take the course, or that respondent allow petitioners to home school their daughter in this subject (she had been home schooled through fifth grade). Petitioners claim that respondent’s refusal to adopt any of these alternatives is unreasonable.

Respondent contends that petitioners have no standing to bring this appeal as neither petitioners nor their daughter have suffered any injury. Respondent claims that petitioners have unilaterally removed their daughter from the Home and Careers course based on their unsubstantiated concern regarding Ms. Stage. Respondent alleges that as petitioners’ daughter has yet to attend the class, her (and petitioners’) concerns are based on events which have not taken place; thus no actual injury has occurred, and petitioners lack standing.

Respondent also contends that pupil placement is a matter of educational policy, and such decisions are vested in the professional judgment and discretion of school administrators. Respondent maintains that it does not have the resources to allow petitioners’ daughter to take the course via videotape, or to hire an additional Home and Careers teacher for her. Respondent alleges that permitting a delay in attendance to allow the student to receive counseling, and offering to have a guidance counselor accompany her to class, demonstrates its willingness to work with petitioners. Respondent claims that compelling petitioners’ daughter to attend a required course under these circumstances is not arbitrary, capricious, or an abuse of discretion.

I will first address the procedural issue of standing. An individual may not maintain an appeal pursuant to Education Law "310 unless he is aggrieved in the sense that he has suffered personal damage or injury to his rights (Appeal of Shabot, 35 Ed Dept Rep 289, Decision No. 13,544; Appeal of Goloski, 34 id. 565, Decision No. 13,410). Respondent may not agree with petitioners that their daughter has suffered any harm, but petitioners have produced two letters from a psychologist stating that she suffers from emotional distress as a result of being assigned to Ms. Stage’s class. Additionally, the class is a required one, and no satisfactory alternatives to instruction by Ms. Stage have been found. The student has not attended this class based upon petitioners’ concern for her well-being. Presumably, as a required course, she will not be promoted to high school should she fail to attend the class, 8 NYCRR "100.4(b). If this course of action continues, petitioners’ daughter will suffer harm. Therefore, I find that petitioners have standing.

However, the appeal must be dismissed on the merits. Pupil placement is a matter of educational policy, which lies within the professional judgment and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, 485 NYS2d 358, citing, Hoffman v. Board of Educ., 49 NY2d 121, 424 NYS2d 376, and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564, 435 NYS2d 358; Appeal of Shabot, supra; Appeal of Sponcy, 33 Ed Dept Rep 126, Decision No. 12,998). Likewise, numerous previous decisions of the Commissioner have determined that boards of education have broad authority, under Education Law "1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another. Consistent with that authority, boards have the power to place students in particular classes (Appeal of Dawn H., 39 Ed Dept Rep 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922; Appeal of Kendrick and Sillato, 32 id. 464, Decision No. 12,887). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Dawn H., supra; Appeal of Reid, supra; Appeal of Kendrick and Sillato, supra). In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief and the burden of demonstrating a clear legal right to the relief requested (8 NYCRR 275.10; Appeal of Jones, 39 Ed Dept Rep 555, Decision No. 14,309; Appeal of Mayer, 39 id. 195, Decision No. 14,212). On the record before me, petitioners have failed to establish facts sufficient to conclude that respondent's conduct is arbitrary, capricious, or an abuse of discretion. Rather, respondent's actions have demonstrated a willingness to compromise and reach a solution with petitioners. Petitioners were allowed two months of counseling for their daughter, as well as a promise of another adult to accompany her to Ms. Stage’s class. I find this to be a reasonable response to petitioners’ concerns.