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Decision No. 16,381

Appeal of DEBRA and NELSON GARIFI, on behalf of their son COLTON, from action of the Board of Education of the City School District of the City of Jamestown regarding educational placement. 

Decision No. 16,381

(July 20, 2012)

Hodgson Russ LLP, attorneys for respondent, David A. Farmelo, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal a decision of the Board of Education of the City School District of the City of Jamestown (“respondent”) denying their son, Colton, admission to its high school concert band course.  The appeal must be dismissed.

As part of its high school music program, respondent offers two instrumental band courses for academic credit: symphonic band and concert band.  Petitioner’s son was enrolled in respondent’s symphonic band course in 2009-2010.  Based on a performance evaluation, he qualified to participate in the district’s concert band in the 2010-2011 school year.

Respondent requires students participating in concert band to also participate in its marching band, an extracurricular activity.  Although Colton wished to enroll in concert band beginning in the fall semester of the 2010-2011 school year, he indicated to the district that he was not interested and unwilling to participate in the marching band.  Consequently, Colton was not permitted to enroll in concert band but, instead, was allowed to continue in symphonic band.

Petitioners appealed to the school principal, who upheld the denial of Colton’s admission to concert band.  They then appealed to the superintendent who also upheld the decision, stating that participation in marching band was a co-requisite to enrollment in the concert band course and that mere unwillingness to participate in marching band was not an acceptable ground for an exemption from the requirement.  Petitioners subsequently appealed to respondent which upheld the superintendent’s decision.  This appeal ensued. 

Petitioners contend that respondent’s requirement that a student participate in marching band as a condition of enrollment in concert band is unreasonable.  They claim that requiring participation in the extracurricular activity as a condition for enrollment in the academic course is impermissible, particularly when a student has qualified, upon audition, as eligible for such academic course.  Petitioners further allege that respondent permits a waiver to the marching band requirement only for students engaged in fall interscholastic athletics and that such practice is discriminatory.  Finally, petitioners assert that respondent impermissibly requires fund-raising and imposes a participation fee as part of the marching band requirement of the academic concert band course, though the petition does not seek any relief in this regard.  Petitioners seek an order directing respondent to eliminate participation in marching band as a requirement for enrollment in concert band and to enroll Colton in concert band.  Petitioners also seek elimination of the athletic waivers. 

Respondent maintains that participation in marching band as a condition of enrollment in concert band is reasonable and educationally sound.  Respondent further asserts that it has granted limited waivers for students only for fall interscholastic athletics that conflict with marching band activities and that such students are required to participate during the rest of the year when their conflicting school athletic activity is over.  Respondent asserts that such practice is reasonable and non-discriminatory.  Respondent asserts that a student’s disinterest and unwillingness to participate in marching band does not constitute an acceptable basis for a waiver.  Finally, respondent maintains that there are fundraising requirements for all three bands, that such activity is not prohibited and that no student is denied the opportunity to participate in marching band due to inability to pay the participation fee.

Prior to addressing the merits, I will first address a procedural matter.  Both parties have submitted applications to submit memoranda of law pursuant to §276.4 of the Commissioner’s regulations.  Both memoranda have been accepted and considered.

The appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The school year at issue has ended and it appears petitioners’ son has graduated.  Therefore, the appeal is moot and must be dismissed.

Even if the appeal was not dismissed as moot, it would be dismissed on the merits.  Boards of education have broad authority to prescribe the course of study in the schools of a district (Education Law §§1709[3], 2503[1] and [4][c]; Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662; Appeal of Murphy, 39 id. 562, Decision No. 14,311; Appeal of Keen, 32 id. 299, Decision No. 12,836; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).  The U.S. Supreme Court has confirmed that school authorities enjoy broad discretion in regulating matters of curriculum (Bd. of Educ., Island Trees U.F.S.D. No. 26 v. Pico, 457 US 853, 869).  I will not substitute my judgment for that of the board on curriculum issues absent evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662; Appeal of Murphy, 39 id. 562, Decision No. 14,311; Appeal of Keen, 32 id. 299, Decision No. 12,836; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657).  I can make no such finding on the record before me.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  The Education Law contains no specific mandates for music or band instruction (seeAppeal of Graham, 30 Ed Dept Rep 498, Decision No. 14,292).  Moreover, reasonable conditions may be imposed upon a student’s participation in an activity such as school band, for which academic credit is given (Appeal of Peruzzi, 27 Ed Dept Rep 15, Decision No. 11,857; Matter of Ingersoll, 6 id. 137, Decision No. 7,756). 

The record indicates that concert band performance is more accomplished and involves somewhat more difficult music than symphonic band.  According to the superintendent and the district’s band director, respectively, participation in marching band contributes to growth of musicianship and permits additional instructional time on the student’s instrument each week.  In his decision, the superintendent stated:

[T]he concert band assignment requires substantial growth in musicianship as part and parcel of continuing membership ....  The Marching Band environment is one that advances that musical growth in substantive ways.  Indeed, the intensity and specificity of the Marching Band instruction advance musicianship in a very accelerated manner.  Add challenging musical numbers and the participation of instrument specific expert instructors and the pedagogical relationship between Concert Band and Marching Band becomes apparent.  

Petitioners have submitted no countervailing evidence.  Moreover, the educational benefits of band performances outside of school hours were acknowledged in Matter of Ingersoll, 6 Ed Dept Rep 137, Decision No. 7,756.   I note further that respondent also offers symphonic band, which does not require participation in marching band, as an additional option for students to earn credit in music education toward graduation requirements.  Therefore, on this record, I cannot conclude that respondent’s requirement that students in concert band participate in marching band is arbitrary or unreasonable. 

Petitioners’ assertion that the waivers permitted by respondent are unreasonable and discriminatory also lacks merit.  The record indicates that respondent has exempted a student who was physically unable to march in marching band, as well as students who participate in fall interscholastic athletics whose schedules would significantly conflict with marching band.  These student athletes, however, are required to participate in marching band in the spring semester and, thus, attain the benefits of such participation.  According to the record, respondent has never permitted an exemption on the basis of disinterest or unwillingness to participate in marching band.  I do not find the exemptions permitted by respondent unreasonable and there is no evidence that respondent is arbitrarily applying its exemption policy to petitioners’ son.  

To the extent petitioners raise constitutional claims of discrimination with respect to respondent’s waiver policy and practice, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

On this record, petitioners have failed to set forth any basis upon which to substitute my judgment for that of respondent in determining the course requirements for its instrumental band courses and its concert band course, in particular.  Therefore, I will not invalidate respondent’s requirement that, to be enrolled in concert band, petitioners’ son must participate in marching band.  Finally, since petitioners have not requested any specific relief regarding their claims relating to participating in fundraising and the charging of a fee and the record indicates that petitioners’ son was unwilling to participate in marching band in any case, I need not address these issues.  In light of this disposition, I need not address the parties’ remaining claims.