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Decision No. 14,937

Appeal of HARRIS SCHECHTMAN, on behalf of his son ISAAC, from action of the Board of Education of the Baldwin Union Free School District regarding admission to the National Honor Society.



(August 22, 2003)


Ingerman Smith, L.L.P., attorneys for respondent, Lawrence W. Reich, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the refusal by the Board of Education of the Baldwin Union Free School District ("respondent") to admit his son, Isaac, to the National Honor Society of Secondary Schools ("NHS").  The appeal must be dismissed.

During the 2001-2002 school year, petitioner's son  was a junior at respondent's high school.  Although Isaac met the academic requirement for NHS admission, the faculty advisory council ("council") did not select him.  Petitioner appealed this decision.  By letter dated June 19, 2002, the principal advised petitioner that she had reviewed the selection process and determined that it was fair.  By letter dated August 19, 2002, petitioner appealed to respondent.  By letter dated September 20, 2002, respondent upheld the council's decision.  This appeal ensued.

Petitioner asserts that respondent and the council did not comply with the NHS Constitution and Handbook, that two members of the council were biased against his son, and that respondent's answer was untimely. Respondent asserts that its NHS selection process was fundamentally fair, non-discriminatory, and consistent with the NHS Constitution and By-Laws.

Section 275.13 of the Commissioner's regulations requires a respondent to answer the petition within 20 days from the time of service.  Since the petition was served on October 30, 2002, respondent was required to serve its answer by November 19, 2002.  However, respondent's time to serve its answer was extended by my Office of Counsel until December 4, 2002.  Because respondent complied with this extension, I accept its answer as timely.

Pursuant to "276.4 of the Commissioner"s regulations, respondent was required to serve its memorandum of law within 30 days after service of its answer. Respondent served its answer on December 3, 2002. Respondent, however, did not submit its memorandum until January 7, 2003. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR "276.4[a]), respondent has shown neither in this appeal.  Therefore, I have not considered respondent's memorandum of law.

By letter dated June 27, 2003, respondent requested permission to submit a supplemental affidavit pursuant to "276.5 of the Commissioner"s regulations. The affidavit asserts that Isaac has graduated from high school, rendering this appeal moot. By letter dated July 23, 2003, petitioner submitted a reply affidavit asking that I reject respondent"s submission or that I determine that the appeal is not moot.  Petitioner argues that Isaac"s high school record, including the absence of membership in the NHS, may affect his ability to transfer to another college. Petitioner also advises that respondent has issued a new NHS selection process and set of rules that fully conform with the procedures that petitioner had claimed were constitutionally required.

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 K.M., 41 Ed Dept Rep 318, Decision No. 14,699; Appeal of N.B., 40 id. 515, Decision No. 14,542; Appeal of N.C., 40 id. 445, Decision No. 14,522).  Here, the student has graduated from respondent"s school, and petitioner concedes that respondent has corrected any alleged infirmities in its NHS selection process, leaving no possibility for meaningful relief.

Even if the appeal were not dismissed as moot, it would be dismissed on the merits.  Membership in the NHS is a privilege, not a right (Appeal of K.A., 42 Ed Dept Rep ____, Decision No. 14,889; Appeal of Rotella, 40 id. 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).  A decision regarding NHS admission 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 K.A., supra; Appeal of Rotella, supra; Appeal of Andela, supra).

The procedures used by the council to select NHS members for the 2001-2002 school year are explained in a faculty advisor's affidavit.  In April 2002, the NHS faculty advisors sent memoranda to all faculty members, coaches and guidance counselors requesting comments concerning the leadership, service and character qualities of the academically eligible candidates. Respondent contends that the council rejected Isaac for NHS membership in May 2002 because it received two or more specific negative comments concerning his character.  This decision was reviewed and upheld by the school principal and then respondent.

In an appeal to the Commissioner of Education, petitioner has the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10) and the burden of establishing the facts upon which he seeks relief (Appeal of Parisi, 42 Ed Dept Rep ___, Decision No. 14,851; Appeal of Lawson, 42 id. ___, Decision No. 14,826; Appeal of a Student Suspected of Having a Disability, 41 id. ___, Decision No. 14,702).  Respondent acknowledges that one of the council members had dismissed Isaac from an extracurricular band in February 2002.  Although petitioner contends that this tainted the process, a faculty advisor to the council avers that the teacher recused himself from the discussion and vote concerning Isaac.  Petitioner's further allegation concerning the bias of a second council member because of his association with the band teacher is unsupported and speculative.  Therefore, petitioner has failed to prove that bias affected respondent's decision.

Petitioner's additional allegations concerning noncompliance with the NHS Constitution and Handbook are insufficient to invalidate the selection process. Failure to publish admission procedures does not provide a basis for obtaining reconsideration of a student's admission and NHS chapters are not required to provide unsuccessful candidates with an explanation of why they were not selected (Appeal of Guardi, supra; Appeal of Friedberg, supra).  Further, failure to adopt local by-laws does not provide grounds for invalidating a selection determination (Appeal of Andela, supra; Appeal of Friedberg, supra).  While petitioner suggests that the NHS Handbook is binding upon local chapters, several of the cited provisions are merely recommendations that do not govern a local chapter's selection process.    

I have reviewed petitioner's remaining arguments and find them to be without merit.  I must note that this result should not diminish Isaac"s significant academic accomplishments.  Rather, it means only that respondent"s determination was not arbitrary or capricious.