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Decision No. 15,403

Appeal of FRANK ANDO, on behalf of his son MARCO, from action of the Board of Education of the City School District of the City of Schenectady regarding an electrical trades program.

Decision No. 15403

(April 27, 2006)

Shari Greenleaf, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of Schenectady ("respondent") to permit his son, Marco, to attend the Capital Region Board of Cooperative Educational Services ("BOCES") electrical trades program. The appeal must be dismissed.

Petitioner resides in respondent's district and provides home instruction to Marco pursuant to �100.10 of the Commissioner' s regulations. Previously, Marco was enrolled in the BOCES electrical trades program. By letter dated November 18, 2005, respondent's home-school facilitator informed petitioner that Marco was no longer eligible to participate in the BOCES program because Marco was home-schooled. This appeal ensued. Petitioner's request for interim relief was denied on December 27, 2005.

Petitioner alleges that respondent's decision to deny Marco's participation in the BOCES program is contrary to law. Petitioner further argues that respondent's action is arbitrary and capricious because respondent has in the past permitted home-schooled students to participate in BOCES programs. Respondent contends that its decision complies with applicable law and is proper.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). The Legislature has not authorized partial attendance at a public school except under certain specific circumstances (Appeal of Sutton, 39 Ed Dept Rep 625, Decision No. 14,332). Pursuant to Education Law �3602-c, instruction in career education may be furnished to students enrolled in nonpublic schools located in the school district on a part-time basis. Marco is a home-instructed student and is not enrolled in a nonpublic school. Therefore, that exception is not applicable to him (Appeal of Pope, 40 Ed Dept Rep 473, Decision No. 14,530; Appeal of Mayshark, 17 id. 82, Decision No. 9,502).

The fact that the district may have erroneously permitted other home-instructed students to participate in BOCES programs in the past is not binding on respondent and may not provide a basis for continuing an action that is not in compliance with law ( Appeal of Pope, 40 Ed Dept Rep 473, Decision No. 14,530; Appeal of Turner, 40 id. 156, Decision No. 14,447).

In view of this disposition, there is no need to consider the parties' other claims.