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Decision No. 14,889

Appeal of K.A., on behalf of E.A., from action of the Board of Education of the Mount Markham Central School District regarding admission to the National Honor Society.



(June 19, 2003)


Ferrara, Fiorenza, Larrison, Barrett & Reitz, attorneys for respondent, Craig M. Atlas, Esq., of counsel 

Mills, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Mount Markham Central School District ("respondent") to admit his daughter, E.A., to the National Honor Society ("NHS").  The appeal must be dismissed.

In the spring of 2002, E.A., then a sophomore at respondent"s high school, received a notice that she was qualified due to her grade point average to be considered for selection to the NHS.  The notice explained the selection process, and contained a number of activity forms to be completed and returned by the candidate.  E.A. returned the completed forms on March 12, 2002.

Membership in the NHS is based on outstanding scholarship, character, leadership and service.  A five-member faculty council, whose members are appointed by the principal, evaluates NHS candidates.  The faculty council is assisted by two NHS advisors, who attend council meetings but are not voting members of the council.  The council met on March 28 and April 3, 2002 to review the applications.  On April 3, 2002, the NHS advisors issued letters advising students of the selection determinations.  E.A. was not selected for NHS membership, and petitioner appealed that decision to the principal in accordance with NHS procedures.  The principal discussed the selection process and the council"s decision with the two NHS advisors, and issued a letter on April 8, 2002 explaining the general grounds for the council"s determination.  The council had decided that, although the student had many attributes that deserved recognition, certain enumerated areas of leadership and character needed further strengthening.  The principal met with E.A. and her parents on April 10, 2002, to discuss his review.  The principal sent another letter to petitioner on April 11, 2002, declining to overturn the council"s determination.

Petitioner then appealed to the superintendent, in compliance with NHS procedures.  The superintendent met with petitioner, and also with the principal, on April 12, 2002.  She again met with the principal on Monday, April 22, 2002.  Petitioner and his wife discussed their appeal in executive session at respondent"s April 24, 2002 board meeting, which the superintendent attended, but respondent declined to act on the appeal until the superintendent had issued her decision.  On April 26, 2002, after meeting again with the principal and the two NHS advisors, the superintendent issued a letter upholding the unanimous determination of the faculty council.

E.A."s parents then appealed to respondent.  Respondent scheduled a special meeting for May 1, 2002.  The parents did not appear at that meeting, but on the day of the meeting petitioner gave a board member a set of written documents supporting the appeal.  Respondent discussed the selection procedures and background of the appeal in executive session, and scheduled time to hear the appeal at its May 14, 2002 meeting.  Petitioner, his wife and his daughter made statements during the public portion of the meeting, and again made public comments at respondent"s May 28, 2002 meeting.  On May 28, 2002, respondent voted to uphold the decision by a vote of 5-2.  Respondent"s president advised petitioner of the decision by letter dated May 31, 2002.  This appeal ensued.

Petitioner contends that the council discriminated against E.A. and based its decision solely on opinion and suggestions and no credible evidence.  Petitioner also contends that the appeal process was ineffective and unreasonably long.  Petitioner requests that I order respondent to conduct a fair review of E.A."s  credentials in comparison to those of the other candidates, or admit her into the NHS because respondent and other district officials did not review the appeal fairly.  Petitioner further requests that I order respondent to issue an apology to E.A. and that I ensure that future councils use a review process that does not disclose the students" identities.

Respondent denies that the selection process was discriminatory or contrary to the NHS constitution and Handbook, and contends that the council acted in good faith.  Respondent also contends that this appeal is moot, because E.A. has transferred to a school in another district.

I will initially address the mootness argument.  I have accepted a supplemental affidavit from respondent and petitioner"s response to that affidavit, that address the mootness issue, because the facts underlying the issue were not known at the time the initial papers were submitted (Appeal of Instone-Noonan, 39 Ed Dept Rep 413, Decision No. 14,275).  The record indicates that, in August 2002, petitioner removed his daughter from respondent"s schools and enrolled her in another district.  Respondent contends that this removal renders the entire petition moot, and the appeal should be dismissed.  Petitioner contends that the petition is not moot because it challenges the procedures used by respondent, and because it seeks E.A."s retroactive selection to the NHS, which would be transferable to the  new district.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of N.S., 42 Ed Dept Rep __, Decision No. 14,817; Appeal of R.R. and K.R., 41 id. __, Decision No. 14,726).  I find that the petition is moot, because respondent has transferred E.A."s records to the new district and no longer has jurisdiction over her.  Thus, respondent cannot afford any relief directly to E.A.  Furthermore, once E.A. left the district, petitioner also lost standing to challenge the procedures used by the faculty council.  The record does not indicate that petitioner has any other children attending district schools, and petitioner does not have standing to challenge district procedures on behalf of students that are not his children (Appeal of Sims, 42 Ed Dept Rep ___, Decision No. 14,773).

I also dismiss as moot petitioner"s claim that respondent violated the NHS constitution by failing to widely distribute the selection procedures.  Respondent concedes that it did not properly publish the selection process, and merely sent information about the process to the candidates who were determined to be eligible on the basis of their grades.  Respondent agrees to publish a description of the selection process in the future in accordance with the mandates of the NHS constitution.  Because respondent has acknowledged the improper procedures and already committed itself to remedying the defect, I find that there is no longer an actual controversy and this claim must be dismissed as moot.  In any event, failure to publish selection procedures is not a basis for reconsideration of a student"s application for selection (Appeal of Friedberg, 34 Ed Dept Rep 284, Decision No. 13,311; Appeal of Torre-Tasso, 25 id. 47, Decision No. 11,493).

I must also dismiss for lack of jurisdiction petitioner"s request that I order respondent to issue an apology.  The Commissioner lacks the authority to order a board of education or any school district employee to issue an apology (Application of McDougall and Dacey, 42 Ed Dept Rep ___, Decision No. 14,819; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Membership in the NHS is a privilege, not a right (Appeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062; Appeal of Guardi, 37 id. 535, Decision No. 13,921). A decision regarding admission to the NHS is left to the discretion of the local board of education and its faculty, and will not be set aside unless that decision is arbitrary, capricious and without a rational basis (Appeal of Rotella, supra; Appeal of Friedberg, 34 Ed Dept Rep 284, Decision No. 13,311).  In reviewing a challenge to nonselection, in the absence of "specific evidence to the contrary, the [reviewer] must assume that the members of the council are exercising their discretion in a legitimate manner and with the good faith expected of them" (NHS Handbook, 15th Edition [1997], at p. 35), and "[r]econsideration of a [f]aculty [c]ouncil's decision must be a rare occurrence" (id.).

In respondent"s district, students in 10th, 11th and 12th grade with an overall grade point average of at least 87.5 are eligible to be considered for membership in the NHS. An eligible student who desires consideration submits a student activity form that provides information in support of his or her candidacy.  This information assists the faculty council in assessing each candidate's leadership and service.  Faculty members are also given an opportunity to submit comments regarding the extent to which the students satisfy the four critical NHS standards.  After reviewing the student activity forms and any recommendation letters submitted by the student, and any faculty and staff comments received, the faculty council determines whether, in the council"s judgment, the candidate exhibits outstanding character, leadership and service.  The council"s decision is, therefore, necessarily partly subjective.  A majority vote of the five council members is required to select a student for NHS membership.  The vote not to select E.A. was unanimous.  Respondent states that, although E.A. had not been formally disciplined, teacher comments about her raised concerns about her attitude and other aspects of character, as well as concerns about her leadership at school.

Petitioner contends that the faculty council discriminated against E.A. because of past disagreements between petitioner and the district, and also that the council did not subject all candidates to the same level of strict compliance with NHS standards as was applied to his daughter.  In his appeals to the principal and respondent, he had requested that the faculty council review the qualifications of all the candidates to see if E.A. "fell short in comparison to the other candidates."  The faculty council advised, however, that it had destroyed the evaluation materials, except for the student activity forms, for all students after the selection vote was completed.  These materials included the evaluative comments submitted by faculty and staff.

Respondent asserts that destruction of the evaluative materials is routine practice in the district, and complies with NHS procedures as set forth in the NHS Handbook.  Respondent used the 15th Edition of the NHS Handbook (1997), which respondent indicates is the most recent edition.  The Handbook at pp. 90-91 recognizes that most faculty councils do not retain their working papers after making the final selection decisions.  This procedure is thus not in violation of NHS procedures and requirements, and I decline to order any changes to this procedure.

Petitioner contends that the "only way an appeal may be made to show discrimination in the selection process would be to compare the qualifications of those students who were admitted with the qualifications of [his] daughter."  However, comparison of sheer numbers of activities is not a conclusive test, because the council must apply its discretion to consider whether the listed activities exhibit outstanding leadership, character and service.  This sheer numeric comparison also disregards the importance of the teacher and staff comments, which are also considered by the council in making its decision.  The requirement to consider these evaluative comments also argues against petitioner"s suggestion that the selection process should be changed so that the faculty council does not know students" names during the selection deliberations.  Such a process is neither required nor suggested by the NHS Handbook, and would pose an unnecessary administrative burden to the faculty council and advisors.

Petitioner contends that children of district employees were not held as strictly to the NHS standards as non-employees" children.  Respondent presented statistics showing that the overall selection rate for all students was 46%.  Of the 52 candidates who were eligible, 24 were selected, and 8 of the students who were not selected were children of past or present district employees or board members.  Of the 30 eligible students in 10th grade, including petitioner"s daughter, 15 were selected.  Petitioner contends that 7 of the 15 selected sophomores, almost 50%, were children of district employees and 7 out of 8 or 87% of sophomore children of employees were selected, but that only 35% of the sophomores who were not children of district employees were selected for NHS.  There are slight discrepancies between the statistics presented by the parties, but they are not significant to this appeal.  I cannot agree with petitioner"s conclusory statement that these numbers indicate that employees" children were treated differently than non-employees" children, based solely on these statistics.  Petitioner has failed to show any actual discriminatory procedures or intent on the part of council members not to apply the same criteria for admission to all student applicants.  Petitioner has similarly failed to show any evidence that the faculty council"s procedures discriminated against his daughter because of past disagreements between petitioner and the district.  Mere conclusory statements are not sufficient to establish a violation (See Appeal of Deetjen, 42 Ed Dept Rep ___, Decision No. 14,770; Appeal of McAteer, 40 id. 234, Decision No. 14,469).

Petitioner further contends that students with disciplinary histories were selected while his daughter was not, and that such decisions are evidence of discrimination against his daughter.  Respondent, however, states that the disciplinary violations alleged by petitioner had taken place in earlier school years and were therefore not considered in the faculty council"s deliberations.  The faculty council had established a policy that only disciplinary incidents within the 2001-2002 school year were considered for any students.  Petitioner does not establish that such a policy violates the NHS constitution or Handbook.

I have considered the petitioner"s remaining contentions, and I do not find that they constitute grounds for a determination that the faculty council"s procedures are inappropriate or discriminatory.  In an appeal to the Commissioner, petitioner bears the burden of establishing all of the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Laurie, 42 Ed Dept Rep ___, Decision No. 14,867) and to demonstrate a clear legal right to the relief requested (Appeal of Laurie, supra).  I find that petitioner has failed to meet his burden of proof in this appeal.