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Decision No. 14,659

Appeal of MICHAEL PONTE, on behalf of his son ANDREW, from action of the Board of Education of the Locust Valley Central School District regarding the denial of participation in an extracurricular activity.

Decision No. 14,659

(December 5, 2001)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Locust Valley Central School District ("respondent") to prohibit his son, Andrew, from participating in the Locust Valley High School"s jazz band. The appeal must be dismissed.

Although petitioner and his son, Andrew, reside in respondent"s district, Andrew is enrolled in a nonpublic high school. By letter dated May 29, 2001, petitioner requested that Andrew be permitted to audition for the Locust Valley High School"s jazz band. Apparently, the jazz band rehearses in the evening and is considered an extracurricular activity by respondent. By letter dated May 31, 2001, respondent"s superintendent informed petitioner that the district"s policy did not permit students attending nonpublic schools to participate in the district"s extracurricular activities. This appeal ensued. Petitioner"s request for interim relief was denied on August 14, 2001.

Petitioner contends that respondent"s policy does not prohibit his son from participating in the jazz band. He alleges that although Andrew attends a nonpublic school, he should be permitted to audition for the jazz band because he resides in the district. For relief, petitioner requests that I find him eligible to participate in the jazz band and order respondent to permit him to audition for it.

Respondent asserts that it properly denied petitioner"s son permission to audition for the jazz band because it"s extracurricular activity policy does not extend eligibility to students enrolled in nonpublic schools. Respondent also asserts that, in essence, petitioner seeks to enroll his son in the district on a part-time basis. Respondent also contends that the appeal is untimely.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced 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). On June 25, 2001, petitioner attempted to commence an appeal by serving the superintendent"s secretary, who apparently has not been designated by respondent to accept service on its behalf, with a petition lacking the requisite notice. Pursuant to "275.8 of the Commissioner"s regulations, when a school district is named as a respondent, service upon such school district "shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education of such school district, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service." Petitioner failed to obtain jurisdiction over respondent because the superintendent"s secretary was not designated to accept service on respondent"s behalf.

Service was also improper because petitioner"s papers did not include a notice of petition as required by 8 NYCRR "275.11. Although a proper petition was served on the district clerk on July 27, 2001, this service was effectuated well over 30 days from respondent"s May 31, 2001 determination that Andrew was ineligible for the jazz band. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Joanne M., 40 Ed Dept Rep , Decision No. 14,584; Appeal of A.B., 36 id. 155, Decision No. 13,687). I find no evidence of unusual circumstances in this case. Accordingly, the appeal is dismissed as untimely (See, Appeal of Ponella, 38 Ed Dept Rep 610, Decision No. 14,103).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Schiavi, 40 Ed Dept Rep ___, Decision No. 14,569; Application of Campbell, 40 id. ___, Decision No. 14,515). Although petitioner asserts that his son should be permitted to audition for the jazz band, he cites no statutory or regulatory authority requiring a public school to allow nonpublic school students to participate in its extracurricular activities. In the absence of such a legal mandate, the board of education has broad authority to prescribe the course of study by which pupils shall be graded and classified and to regulate the admission of pupils and their transfer from one class or department as their scholarship warrants (Appeal of Shaw, 36 Ed Dept Rep 189, Decision No. 13,697; Education Law ""1709[3] and 1804[1]). Accordingly, respondent has the authority to limit participation in its extracurricular activities to those students who are enrolled in the district.

Although respondent asserts that its current policy limits eligibility for extracurricular activities to students who are enrolled full-time in the district"s public schools, petitioner points out that the policy does not include any explanation of the district"s eligibility requirements. Although petitioner is correct that the policy does not explicitly discuss the district"s eligibility criteria, it appears that enrollment in the public schools is implicitly required. In essence, petitioner is requesting that his son be permitted to participate in the district"s high school program on a part-time basis. However, prior Commissioners" decisions have held that a student attending a nonpublic school has no right to attend a public school on a part-time basis (Appeal of Pelletier, 27 Ed Dept Rep 265, Decision No. 11,942; Matter of Mayshark, 17 id. 82, Decision No. 9502). Under these circumstances, I find no basis to conclude that respondent acted arbitrarily in denying petitioner"s son the opportunity to audition for the high school"s jazz band.