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Decision No. 15,896

Appeal of MICHAEL and LAURI MENTO, on behalf of their daughter BRITTANY, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding educational placement.

Appeal of MICHELLE LAURI, on behalf of her daughter ALEXA, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding educational placement.

Appeal of IGNATIUS L. MUSCARELLA, on behalf of his daughter LEIGH ANNE, from action of the Board of Education of the Bellmore-Merrick Central High School District regarding educational placement.

Decision No. 15,896

(March 25, 2009)

Berger & Brandow, LLP, attorneys for petitioner Lauri, Regina Brandow, Esq., of counsel

Muscarella & DiRaimo, LLP, attorneys for petitioner Muscarella, Paul J. Muscarella, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Noah Walker, Esq., of counsel

MILLS, Commissioner.--In three separate appeals, petitioners challenge the refusal of the Board of Education of the Bellmore-Merrick Central High School District (“respondent”) to enroll their children in the Nassau Board of Cooperative Educational Services (“BOCES”) Cultural Arts Program (“the program”).  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

During the 2007-2008 school year, Brittany Mento and Alexa Lauri, both 11th grade students, and Leigh Anne Muscarella, a 10th grade student, attended respondent's Sanford H. Calhoun High School.  All three students auditioned and were accepted by BOCES into the program for the 2008-2009 school year.  Brittany was accepted for musical theater;[1] Alexa and Leigh Anne were accepted for vocal music.  However, by letters dated May 13, 2008, respondent’s Director of Pupil Personnel and Special Education Services informed petitioners that their children’s applications for the program were denied because similar programs are offered by the district.  Each petitioner appealed to respondent, which upheld the denials.  These appeals ensued.  Petitioner Lauri’s request for interim relief was denied on July 17, 2008; petitioners Mento’s and Muscarella’s requests for interim relief were denied on July 15, 2008.

Petitioners argue that the district facilitated their children’s applications and that district administrators approved their children’s attendance in the program.  Petitioners maintain that they relied on these actions when considering courses and/or other auditions for the 2008-2009 school year.  Petitioners further maintain that they were never informed that the district could subsequently deny entry to the program.  Petitioners assert that while the district has its own music and drama programs, they are not sufficiently similar to those offered by BOCES to meet their children’s academic needs and career goals.  Petitioners also contend that district policy has been applied inconsistently.  Petitioners seek their children’s admittance to the program.

Respondent contends that it is not required to send petitioners’ children to the program and that its denial of their applications was not arbitrary or capricious.  Respondent claims that while it has allowed students in the past to attend the program, the district’s budget situation no longer permits this practice.  Respondent asserts that the appeal should be dismissed because petitioners failed to receive the necessary approvals from the students’ principal and the superintendent and/or their designee(s).  Respondent further contends that, pursuant to board policy #5122.1, the district is not required to allow petitioners’ children to attend the program because it offers comparable courses in the cultural arts, specifically vocal music and drama.

Education Law §§1709(3) and 1930(1), authorizes a board of education of a central high school district 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). 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 B.M., 48 Ed Dept Rep ___, Decision No. 15,866; Appeal of T.K., 47 id. 234, Decision No. 15,679, Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433).

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 maintains a substantial program of instruction in vocal music and drama arts.  It thus appears from the record before me that respondent has complied with Education Law §4602(1) by making a variety of career education courses available to its students.

In this case, respondent’s policy with regard to student attendance at the program is clearly detailed in board policy #5122.1.  This policy provides, in pertinent part:

Bellmore-Merrick offers a fine art, drama, and music program within the District.  Occasionally, a Bellmore-Merrick student may attend a BOCES Cultural Arts Program only if it is significantly different from Bellmore-Merrick offerings.  Students may only attend the Cultural Arts Program with the approval of their Principal and Superintendent or designee.

Respondent admits that in years prior it occasionally allowed students who wished to attend the program to do so, even when respondent’s district offered comparable courses in training for vocal music and drama.  However, in response to recent budgetary limitations, respondent no longer allows its students to attend the program, unless they had previously done so.  A board of education may impose reasonable limitations on a student’s attendance in a BOCES program (seeAppeal of Giordano, 29 Ed Dept Rep 210, Decision No. 12,273; Matter of Tripi, 21 id. 349, Decision No. 10,710).

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  Petitioners have failed to establish that respondent’s policy requires their children’s admission to the program, and have failed to demonstrate that respondent unreasonably limited enrollment in the program.  Instead, the record demonstrates that respondent acted within its discretion, pursuant to Education Law §§1709(3) and 1903(1), in weighing multiple factors when denying petitioners’ children entry into the program.  Furthermore, the record indicates that petitioners failed to obtain the requisite approvals required by respondent’s policy.  Accordingly, the appeals must be dismissed.

In light of this disposition, I need not address the parties’ remaining contentions.



[1] The District’s answer and memorandum of law state that Brittany applied to the program for vocal music.  However, the documentation submitted shows she applied for musical theater.