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Decision No. 14,846

Appeal of JOSEPH WILLIAMS III, on behalf of his son MICHAEL, from action of the Board of Education of the Hempstead Union Free School District regarding participation in a BOCES program.


Decision No. 14,846 

(March 8, 2003)


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 Hempstead Union Free School District ("respondent") to enroll his son Michael in the Nassau County Board of Cooperative Educational Services ("BOCES") Cultural Arts Program ("program").  The appeal must be dismissed.

During the 2000-2001 school year, Michael attended the program for vocal music instruction on a full-day basis.  In April 2001, BOCES sent respondent"s superintendent a letter of intent with which to request enrollment in the program for four students, including Michael, for the 2001-2002 school year.  When the superintendent brought the letter to respondent"s attention, he learned that respondent had not authorized the students" participation in the program or approved any expenditure of funds for that purpose.

By letter dated June 21, 2001, respondent"s director of fine arts and music notified petitioner that all applications for the program would be held in abeyance until respondent completed a review of BOCES expenditures.  At its September 6, 2001 meeting, respondent authorized the four students to attend the program on a half-day basis during the 2001-2002 school year.  However, by letter dated September 12, 2001, the superintendent notified petitioner that respondent rescinded its approval at a meeting on September 8.  Respondent also determined that criteria for selecting students for enrollment in the program should be developed by May 2002.

By letter to the superintendent and respondent dated September 25, 2001, petitioner requested that respondent reconsider its decision and asked that his son be permitted to attend the program.  It does not appear that respondent acknowledged or replied to petitioner"s request.  Petitioner commenced this appeal on December 21, 2001.  Petitioner"s request for interim relief was denied on May 9, 2002.

Petitioner alleges that respondent"s refusal to enroll Michael in the program was arbitrary and capricious and that respondent"s high school lacks comparable resources.

Respondent asserts that its refusal to enroll Michael in the program was within its broad discretion to determine the course of study for its students.  Respondent alleges that it had not authorized the expenditure of funds for students to attend the program during the 2000-2001 school year and that there was no board policy governing student admission criteria for the program.  Finally, respondent maintains that its high school has an extensive vocal music program for its students, which includes beginning courses to advanced placement.

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).  Petitioner was informed of respondent"s determination by letter dated September 12, 2001.  He served the petition about three months later, on December 21, 2001, and filed it with my Office of Counsel on March 20, 2002.  Petitioner offers no excuse or reason for the delay.  Moreover, petitioner"s request for reconsideration did not extend the time for commencing an appeal (Appeal of a Student with a Disability and his Sister, 42 Ed Dept Rep ___, Decision No. 14,821; Appeal of Davila, 41 id. ___, Decision No. 14,732).  Therefore, the appeal must be dismissed.

Even if the appeal were timely, it would be dismissed on the merits.  Education Law "1709(3) authorizes a board of education to prescribe the course of study for students and to regulate their transfer from one course to another.  That authority includes the power to determine whether to contract for particular BOCES programs (Appeal of a Student with a Disability, 42 Ed Dept Rep ___, Decision No. 14,807; Appeal of a Student Suspected of Having a Disability, 41 id. ___, Decision No. 14,702).  Moreover, 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 S.T., 41 Ed Dept Rep ___, Decision No. 14,709; Appeal of D.M. and M.M., 41 id. ___, Decision No. 14,694).

Petitioner has not shown that respondent"s determination was arbitrary, capricious or illegal.  Respondent discovered that four students, including Michael, attended the program during the 2000-2001 school year without proper authorization.  Respondent had not developed a policy setting criteria for student enrollment in the program, and decided not to enroll any students in the program during the 2001-2002 school year.  It directed that criteria for future enrollment be developed to ensure that future determinations are not arbitrary.  I also note that respondent"s high school offers a vocal music program for its students, including beginning and advanced courses and individual lessons, which is available for Michael"s participation.