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Decision No. 14,530

Appeal of WAYNE and KATHERINE Z. POPE, on behalf of their daughter, MELISSA POPE, from action of the Board of Education of the Shelter Island Union Free School District regarding driver education.

Decision No. 14,530

(January 17, 2001)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Shelter Island Union Free School District ("respondent") to permit their daughter, Melissa, to attend its high school driver education course. The appeal must be dismissed.

Petitioners reside in the Shelter Island Union Free School District. Petitioners have provided home instruction to their seventeen year-old daughter, Melissa, pursuant to 8 NYCRR "100.10 since September 1998. On August 30, 2000, petitioners' daughter contacted respondent’s high school to register for a driver education course during the fall 2000 semester. Respondent offers driver education as a credit-bearing course twice each year at its high school.

On September 7, 2000, Melissa attended the driver education class at respondent’s high school. After the class concluded, she was asked to report to the principal’s office. Melissa met with the principal and was informed that she could not continue in the driver education course. The principal indicated that, because Melissa was not enrolled as a high school student but, instead, was home schooled, she could not take a class at the high school on a part-time basis. Thereafter, Melissa was not permitted to attend the driver education course. Petitioners sought respondent’s review of the principal’s decision. By letter dated September 14, 2000, respondent upheld the decision refusing to permit Melissa to attend its high school driver education course. This appeal ensued.

Petitioners allege that respondent’s decision not to allow their daughter to enroll in its high school driver education course is improper and discriminatory. They also claim that respondent’s decision is arbitrary and capricious based on their assertion that respondent has, on one prior occasion, permitted a home-schooled student to attend its driver education course. Respondent contends that its determination is in compliance with applicable law and is in all other respects proper.

Education Law "3205 requires attendance upon full-time instruction of minors six to sixteen years of age. Such attendance may be either at a public school or elsewhere. In the event that a minor receives instruction other than in a public school, that instruction must be "at least substantially equivalent to the instruction given of minors of like age and attainments at the public schools of the city or district where the minor resides" (Education Law "3204[2]). Petitioners’ right to instruct their daughter at home is not at issue here. Rather, the question is whether respondent must allow petitioners to instruct Melissa at home for part of the school day and also attend a class at respondent’s high school for part of the day (See, Matter of Mayshark, 17 Ed Dept Rep 82, Decision No. 9502). In establishing a state-wide system of free public schools, the Legislature has provided one means of providing education for all children. The Legislature has not, however, authorized partial attendance at a public school except under certain specified circumstances. Pursuant to Education Law "3602-c, instruction in the areas of occupational and vocational education, gifted education, and education of students with disabilities may be furnished to students enrolled in nonpublic schools. With that exception, which is not applicable to home-instructed students, boards of education are not authorized to instruct pupils on a part-time basis (Appeal of Sutton, 39 Ed Dept Rep 625, Decision No. 14,332; Matter of Mayshark, supra). Therefore, respondent’s determination not to permit Melissa to attend its high school driver education course while being home instructed is consistent with applicable law.

Petitioners also claim that respondent’s determination discriminates against their daughter because, petitioners assert, there is no other method for Melissa to take a driver education course and obtain a "blue card" for automobile insurance purposes. In an appeal to the Commissioner, petitioners have 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 Sutton, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioners provide no explanation of the legal basis for their discrimination claim. Having failed to articulate a clear legal right to relief, petitioners have failed to meet their burden. Moreover, to the extent that petitioners intend to allege discrimination on constitutional grounds, an appeal to the Commissioner pursuant to Education Law "310 is not the proper forum for litigating novel issues of constitutional law (Appeal of a Student Suspected of Having a Disability, 40 Ed Dept Rep ___, Decision No. 14,464; Appeal of Carlson, et al., 37 id. 351, Decision No. 13,877; Appeal of O’Shea, 32 id. 514, Decision No. 12,904). Accordingly, I would not address such claims.

Finally, petitioners allege that respondent has, on one prior occasion, permitted a home-instructed student to attend its high school driver education course. Petitioners, therefore, claim that respondent’s determination herein is arbitrary and capricious. Respondent asserts, however, that it was unaware of the prior incident. Petitioners offer no evidence to the contrary. The fact that respondent’s staff may have erroneously permitted one home-instructed student to take a driver education course at the high school in the past is not binding upon respondent and may not provide a basis for its continuing an action that is not in compliance with law (Appeal of Turner, 40 Ed Dept Rep ___, Decision No. 14,447;

Appeal of Whitaker, 33 id. 59, Decision No. 12,974).