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Decision No. 14,807

Appeal of a STUDENT WITH A DISABILITY, by her parent, from action of the Board of Education of the North Colonie Central School District regarding the denial of an application to the Capital Region Board of Cooperative Educational Services cosmetology program.

Decision No. 14,807

(September 19, 2002)

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the North Colonie Central School District ("respondent") to enroll his daughter in the Capital Region Board of Cooperative Educational Services (BOCES) cosmetology program ("program"). The appeal must be dismissed.

Petitioner"s daughter is a 12th grade student at respondent"s Shaker High School. On April 30, 2002, while petitioner"s daughter was a junior, she met with her guidance counselor and requested, but was denied, admission to the program. On that same date, petitioner visited the program and was advised that if respondent, a component school district of Capital Region BOCES, decided to sponsor his daughter, the only potential problem would be space in the class, in which case she would be placed on a wait-list.

In a telephone conversation on May 6, 2002, petitioner was informed by the director of pupil services that the practice at Shaker High School has been to offer its own occupational courses rather than enrolling students in Capital Region BOCES vocational courses. In a letter dated May 8, 2002, the director of pupil services confirmed that petitioner and his daughter selected a five-unit sequence in career and technical education when she was an incoming ninth grader, reflected in her Integrated Regents Program (IRP) with an emphasis on business education, which will allow her to earn a Regents diploma. Petitioner responded by letter on May 14, 2002 requesting that his daughter be allowed to complete any outstanding requirements needed to obtain a Regents diploma and to attend the program at Capital Region BOCES. Petitioner was informed by letter dated May 18, 2002 from the director of pupil services that his request was denied and that respondent was meeting its obligation by providing his daughter with its five-unit sequence in occupational education.

Petitioner and his daughter met with the superintendent and the director of pupil services on May 22, 2002 to renew his request. On May 28, 2002, the superintendent denied petitioner"s request. This appeal was commenced on June 25, 2002. On July 17, 2002, I denied petitioner"s request for interim relief.

Petitioner contends that his daughter is entitled to attend the program at Capital Region BOCES without payment of tuition because respondent is a component district and that respondent"s refusal to enroll his daughter in the program violated Education Law "4602 because it offers only three of the seven disciplines in career and technical education provided for in Commissioner"s Regulation "100.1. Petitioner also contends that his daughter was not provided due process under Commissioner"s Regulation "200.5. Petitioner further contends that his daughter, who has a school accommodation plan under Section 504 of the Rehabilitation Act, was discriminated against in violation of the Equal Educational Opportunities Act of 1974 because a male student with a Section 504 plan was allowed to attend a Capital Region BOCES program.

Respondent denies discriminating against petitioner"s daughter and asserts that it has fully complied with the Education Law and Commissioner"s Regulations by offering her a five-unit sequence in career and technical education and that the BOCES cosmetology program is a two-year course that cannot be completed during her senior year. Respondent contends that petitioner"s daughter is not entitled to procedural due process procedures under Commissioner"s Regulation "200.5 because the Committee on Special Education (CSE) has not found her to be eligible for special education under the Individuals with Disabilities Education Act (IDEA). Respondent contends that the male student referred to in the petition does not have a Section 504 plan but rather, is attending BOCES pursuant to an Individualized Education Program (IEP) under the IDEA. Respondent argues that petitioner"s daughter has successfully completed three of the four years in her IRP and that enrollment in the off-campus two-year cosmetology program would disrupt her senior year and interfere with her ability to earn a Regents diploma, particularly in light of her diagnosed condition of Attention Deficit Disorder (ADD).

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 part:

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 offers career and technical education in the specific disciplines of business and marketing, family and consumer science and technology. 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 even though the program in question is not one of respondent"s offerings (Appeal of a Student Suspected of Having a Disability, 41 Ed Dept Rep __, Decision No. 14,702). Accordingly, respondent developed the IRP and five-unit sequence for petitioner"s daughter as an incoming eighth grade student.

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. 9,086) 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 is providing petitioner"s daughter with an IRP with an emphasis on business education, continuing the five-unit sequence in career and technical education that she and petitioner selected when she was in ninth grade. In addition, respondent considered the potentially disruptive effect of having the student in transit and attending an off-campus site during the school day, as well as the impossibility of completing the two-year cosmetology program in her senior year.

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 that respondent has unreasonably limited her enrollment in that program. Therefore, I must dismiss the appeal (Appeal of a Student Suspected of Having a Disability, supra).

With regard to petitioner"s discrimination claims, I find no evidence in the record to support such claims. The record indicates that the male student referred to in the petition is attending a BOCES special education program pursuant to an IEP, unlike petitioner"s daughter. Petitioner"s daughter does not have an IEP and is not classified as a student with a disability under the IDEA. Rather, she has a school accommodation plan for her attention deficit disorder under Section 504 that provides extra time on certain assignments and tests but specifies no special education or BOCES services.