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Decision No. 14,702

Appeal of a STUDENT SUSPECTED OF HAVING A DISABILITY, by her parent, from action of the Board of Education of the Rockville Centre Union Free School District regarding the denial of an application to Nassau BOCES Cultural Arts Center.

Decision No. 14,702

(March 27, 2002)


Anthony D. Denaro, P.C., attorneys for petitioner, Steven E. Shumer, Esq., of counsel


Ingerman Smith, LLP, attorneys for respondent, Neil M. Block, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Rockville Centre Union Free School District ("respondent") to enroll his daughter in the Nassau BOCES Cultural Arts Program ("program"). The appeal must be dismissed.

Petitioner"s daughter is a 10th grade student at respondent's high school. Sometime prior to the 2001-2002 school year, petitioner submitted a request to respondent's superintendent to enroll his daughter in the program. By letter dated August 21, 2001, the superintendent denied the request. This appeal ensued.

Petitioner contends that respondent's refusal to enroll his daughter in the program fails to consider her best educational interests. Petitioner asserts that she would greatly benefit from either part-time or full-time enrollment in the program because she is an exceptionally talented artist and because she has a learning disability. Petitioner alleges that respondent's refusal to enroll his daughter was arbitrary and capricious and that respondent does not have written policy for determining placement into the program. Petitioner also contends that another district student currently attends the program.

Respondent contends that it is not required to send petitioner"s daughter to the program and that it offers extensive art courses at its high school. Respondent asserts that it allowed one 12th grade theater arts student to attend the program because that student completed all the theater courses offered at respondent's high school by the end of 11th grade. Respondent also argues that the appeal should be dismissed because petitioner failed to exhaust his administrative remedies by appealing the superintendent's decision to respondent. Respondent further contends that petitioner did not make a request for the evaluation of his daughter by the Committee on Special Education until this appeal was commenced and further contends that placement in this program would not address his daughter's alleged learning deficiencies.

Initially, I must address several procedural issues. Petitioner submitted a letter, dated January 30, 2002 and received in my Office of Counsel on February 5, 2002 that attempts to "narrow the issue" of the appeal. Respondent submitted a letter, dated February 4, 2002, objecting to petitioner"s letter. Section 276.5 of the Regulations of the Commissioner of Education permits the submission of additional supporting papers upon prior permission of the Commissioner. Petitioner did not seek permission to submit these additional papers and claims that he was unaware that he could have submitted a reply to respondent"s papers. Petitioner failed to submit either a reply or a memorandum of law as permitted by the regulations (8 NYCRR ""275.14, 276.4). Petitioner"s ignorance of applicable law and regulation are insufficient to excuse the belated submission of the letter. In any event, the letter merely reargues points raised in the petition. Therefore, I have not considered petitioner"s January 30 letter nor respondent"s February 4 letter in deciding this appeal.

With regard to respondent"s exhaustion defense, the August 21, 2001 letter notifying petitioner of the superintendent's decision states that the decision "may be appealed to" respondent (emphasis added). Respondent does not provide any policy, rule or regulation that requires an appeal to respondent and the appeal language in the letter is permissive. Therefore, I will not dismiss the appeal for failure to exhaust administrative remedies (see Appeal of Barbara D. and James D., Jr., 34 Ed Dept Rep 118, Decision No. 13,252).

The appeal, however, must be dismissed on the merits. Education Law "1709(3) authorizes boards of education to prescribe the course of study for students and to regulate their transfer from one class to another. Included within that authority is the power to determine whether to contract for particular BOCES programs (Appeal of Lockwood, 33 Ed Dept Rep 297, Decision No. 13,054; Appeal of Burhouse, 32 id. 256, Decision No. 12,823; Matter of Witmeyer, 21 id. 190, Decision No. 10,648). Education Law "4602(1) provides, in pertinent:

The board of education of each school district shall provide secondary school pupils ... access to programs of career education, commensurate with the interests and capabilities of those desiring and having a need for preparatory training...

Respondent submitted a page from its student programming guide regarding the offering of BOCES courses. It appears from the record before me that respondent has complied with Education Law "4602(1) by making a variety of occupational education courses available to its students, but it is unclear whether the program in question is one of respondent"s offerings as the list does not appear to be a complete list of available programs.

Furthermore, a district may limit enrollment in a BOCES program, for example, to 11th and 12th grade students (Appeal of Giordano, 29 Ed Dept Rep 210, Decision No. 12,273; Appeal of D"Hondt, 15 id. 80, Decision No. 9086) or require that a student meet certain reasonable prerequisites before being admitted to the program (Appeal of Tripi, 21 Ed Dept Rep 349, Decision No. 10,710).

In this case, respondent"s policy with regard to this program is unclear from the record before me. Respondent alleges that it has a practice that a student will not be enrolled in the program if substantial and/or comparable courses are available within the district. Respondent admits that one 12th grade student currently attends the program in accordance with this practice because he had exhausted the district"s theater arts offerings. Thus, it appears that respondent may contract for the program provided certain prerequisites are met, but there is no indication of the specific prerequisite sequence petitioner"s daughter must meet in order to attend the program. Respondent submitted a chart depicting its art class offerings, but it is unclear from the chart whether certain sequences are required or if a student must take every course listed on the chart. It does appear, however, that petitioner"s daughter still has a number of art courses available to her within respondent"s district.

In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of L.S., 41 Ed Dept Rep __, Decision No. 14,683; Appeal of James L., 39 id. 482, Decision No. 14,288). On the record before me, petitioner has not established that respondent has a contract with the BOCES that requires her admission to the program or has unreasonably limited her enrollment in that program. Therefore, I am constrained to dismiss the appeal. However, I urge respondent to produce a written policy that clearly describes the criteria it uses for admission to the program.

In light of this disposition, I need not address petitioner's remaining contentions.