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Decision No. 16,590


 Appeal of a STUDENT WITH A DISABILITY, by his parents, from action of the Board of Education of the Liberty Central School District and Michael Vanyo, Superintendent, regarding admission to the National Junior Honor Society.

Decision No. 16,590

(February 13, 2014)

Whiteman Osterman & Hanna, LLP, attorneys for respondents, Beth A. Bourassa, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge the refusal of the Board of Education of the Liberty Central School District (“board”) and Michael Vanyo(“superintendent”) (collectively “respondents”) to admit their son, a student with a disability (“student”), to the National Junior Honor Society (“NJHS”). The appeal must be dismissed.

During the 2010-2011 school year, petitioners’ son was an eighth grade student in the district’s middle school. The student applied for admission to the NJHS in both the2009-2010 and 2010-2011 school years. The district’s NJHS committee ("committee") did not select him for admission to the NJHS either year.

Respondents explain that each year, seventh and eighth grade students in respondents’ district who maintain a cumulative grade point average (“GPA”) of at least 88% are invited to apply for membership in the NJHS, which is based upon scholarship, leadership, service, character, and citizenship. According to the affidavit submitted by respondents’ NJHS faculty advisor (“faculty advisor”), the faculty advisor reviews the application process with each eligible student and recommends that those students submit a cover letter to the district’s NJHS Selection Committee (“committee”) with the NJHS application. The faculty advisor is not a committee member and does not participate in the selection process. After applications are received, the teachers at each grade level meet and are required to fill out an evaluation form, called a “rubric,” for each candidate with whom the teacher is familiar, by rating each candidate’s character on a scale of one through four in several categories. The committee then meets to compile the data for each candidate. Students who achieve an 85% or higher on the rubric automatically receive NJHS

membership. For those students who do not meet the 85% benchmark, additional input is solicited from teachers to determine if there is any compelling reason why the student should be admitted based on the membership criteria.

During the 2009-2010 school year, when the student was in seventh grade, he was invited to and did apply for membership to the NJHS based on his maintenance of an 88%GPA. The NJHS committee denied the student admission that year.

During the 2010-2011 school year, the student was again invited to apply for membership to the NJHS based on his maintenance of an 88% GPA. The student submitted an application and evaluation forms were distributed to each teacher. On March 4, 2011, the eighth-grade teachers met and the evaluation forms were collected. On March 15,2011, the committee convened and compiled each candidate’s data. Five students did not meet the 85% threshold for automatic membership, including the student, who scored78.8%. The rubric demonstrated that the student scored low in the category of appropriate unsupervised behavior. In accordance with district procedures, the committee solicited additional input from the eighth-grade teachers for those students who did not meet the threshold to determine if any compelling reason existed to reconsider their admission. The committee received no responses from any of the student’s teachers. As such, the committee denied the student’s admission on the basis that he scored 78.8% on the rubric and the committee received no response from any teachers that would justify reconsideration of the student’s admission.

On March 17, 2011, the NJHS faculty advisor verbally notified the student of the committee’s March 15, 2011determination not to select him for membership to the NJHS. Petitioners claim that they learned of the committee’s determination on April 11, 2011, the date of respondent’s rehearsal ceremony for induction into the NJHS, which the student’s ninth-grade brother attended by virtue of his automatic NJHS membership based on his eighth-grade admission.

On April 25, 2011, petitioners met with the superintendent to discuss the denial of the student’s application for NJHS membership. During the meeting, petitioners raised several concerns and requested a written explanation for such denial. The superintendent advised that he would review the selection process to confirm whether it was conducted fairly and consistent with district procedures. According to respondents, the superintendent confirmed on April 26, 2011, that the

committee fully complied with its selection procedures and that its decision was fair. At the superintendent’s request, the faculty advisor subsequently provided him with a written explanation of the selection procedures and reasons the student was denied admission to the NJHS.

On April 29, 2011, the superintendent again met with petitioners and provided them with the written explanation and rubric. He advised petitioners that he would not disturb the committee’s determination to deny the student admission to the NJHS. In June 2011, the superintendent met with petitioners at their request, during which time he rejected their renewed request for reconsideration of the committee’s decision and advised that his April 29, 2011decision was final. This appeal ensued.

Petitioners assert, among other things, that respondents and the committee did not comply with the NJHS Constitution and Handbook and that the committee’s decision to deny the student admission to the NJHS was arbitrary and capricious and without a rational basis. Petitioners seek an order setting aside the decision to deny the student admission to the NJHS and directing respondents to recommend the student for admission to the NJHS.

Respondents assert that the appeal is untimely and that the decision not to admit petitioners’ son to the NJHS was discretionary and was not arbitrary, capricious, or irrational.

Petitioners reply that the appeal is timely since they did not learn about the committee’s determination until April 11, 2011, and, in any event, they had to exhaust their administrative remedies prior to commencing the instant appeal. Petitioners also assert, among other things, that the committee abused its discretion in making the determination.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).

The record indicates that the committee made its determination on March 15, 2011, and the student received verbal notification from the faculty advisor on March 17,

2011. Petitioners contend that they did not learn about the determination until April 11, 2011. Petitioners’ affidavit of personal service states that the petition was served on July 20, 2011, more than 30 days after either date. The appeal is therefore untimely. In addition, to the extent petitioners contest respondents’ decision not to admit the student to the NJHS during the 2009-2010 school year, the appeal is also untimely.

A delay in commencing an appeal may be excused by the Commissioner for good cause shown (8 NYCRR §275.16).Petitioners request that I excuse their delay because they diligently attempted to resolve this matter with respondents and they commenced the appeal within 30 days of their final meeting with the superintendent on June 21,2011, during which they requested and were denied re­consideration of his April 29, 2011 decision not to disturb the committee’s determination. While petitioners sought reconsideration of respondents’ decision, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457,Decision No. 15,914; Appeal of Valentino, 48 id. 254,Decision No. 15,851).

Petitioners further contend that the appeal is timely because they were required to exhaust their administrative remedies and commenced this appeal within 30 days of such exhaustion, which caused additional delays. Specifically, petitioners rely on the NJHS Constitution and Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026 (“Andela”)to support their argument that they were required to appeal to the principal and then to the board of education before commencing the instant proceeding. In Andela, which arose during the 1995-1996 school year, the NJHS Constitution apparently provided in Article V, §3, that the local board of education was authorized to review selection decisions of the faculty council after an initial appeal to the principal (Appeal of Andela, 38 Ed Dept Rep 249, Decision No. 14,026). However, upon review of the now-controlling NJHS Constitution submitted by respondent,1 no such provision exists regarding board-level review. Rather, Article V, §4 of the controlling NJHS Constitution, which was approved in 2008 for use by all chapters, states that“[t]he principal shall receive appeals in cases of non-selection of candidates....” Moreover, neither party submitted a copy of the NJHS Handbook or any applicable by­laws or local rules to indicate that a board-level appeal

1Petitioners submitted only two pages purportedly from the NJHS Constitution relating to “Section of Members,” “Discipline Dismissal,” and faculty evaluation of applicants.

is required. Therefore, it appears from the record before me that the applicable NJHS Constitution requires an appeal to the principal following the committee’s determination and that a board-level appeal is not required.

Petitioners do not deny that, contrary to their own argument regarding exhaustion of administrative remedies, they failed to appeal the committee’s determination to the principal. Instead, they appear to claim that they were not required to appeal to the principal because the principal was being “laid off” and/or “leaving the district at the end of the school year” and that the principal was not on the NJHS committee. Moreover, while petitioners reference several informal communications with the board president, they do not allege that they presented their appeal to the full board. Even assuming, arguendo, that an appeal to the superintendent may be substituted for the required appeal to the principal, the superintendent’s final determination was rendered on April 29, 2011, nearly three months prior to the commencement of this appeal.

Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of N.B., 53 Ed Dept Rep, Decision No. 16,511; Appeal of S.T. and M.T., 52 id.,Decision No. 16,484; Appeal of Stieffenhofer, 48 id. 231,Decision No. 15,846; Appeal of a Student with a Disability,48 id. 146, Decision No. 15,821). I find no unusual circumstances sufficient to excuse petitioners’ delay in this instance. Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Like membership in the National Honor Society, membership in the NJHS is a privilege, not a right (see NJHS Constitution, Article VIII, §1; Appeal of Rotella, 40 Ed Dept Rep 385, Decision No. 14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062). A decision regarding NJHS 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 (see

e.g. Appeal of Rotella, 40 Ed Dept Rep 385, Decision No.14,506; Appeal of Andela, 38 id. 388, Decision No. 14,062).

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., 48id. 348, Decision No. 15,882). Petitioners argue that 5

respondents’ reasons for rejecting the student’s application were “inconsequential and bogus.” They claim that information from prior school years was improperly considered and that the faculty advisor made false statements about the student to the committee. They also contend that the committee abused its discretion in refusing to admit the student to the NJHS for a number of reasons, including that (1) 20 teachers completed surveys on the student’s behalf even though he only had 14 teachers during the 2010-2011 school year; (2) three out of the 20teachers did not respond to the category of “citizenship” and therefore the teachers must not have reviewed his application which contained citizenship information; and

(3) the collection of data is “obviously” flawed. Petitioners, however, fail to substantiate these claims, which amount to nothing more than mere speculation.

The record reveals that the procedure followed in reviewing NJHS applications was applied consistently to all applicants. The committee surveyed staff for evaluations concerning the applicant's character in several categories. Teachers were instructed to evaluate only those student applicants about whom they had personal knowledge. Each applicant received a score based upon the rubric and only those who met the benchmark of 85%, based on the rubric, were automatically admitted to the NJHS. For students who did not meet the 85% benchmark, including petitioners’ son, additional input was solicited from teachers. The record reflects that those procedures were followed in the student's case and that, even though it was not required by the procedures, the superintendent reviewed the selection process to ensure that it was fair and consistent with district procedures. It thus appears that the student’s application was given every necessary consideration. Thus, on this record, I cannot find that the denial of the student’s admission was arbitrary or capricious under the circumstances presented.

Petitioners’ additional allegations concerning noncompliance with the NJHS 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 there is no indication on the record before me that NJHS chapters are required to provide unsuccessful candidates with an explanation of why they were not selected (see e.g. Appeal of Schechtman, 43 Ed Dept Rep 107, Decision No.14,937; Appeal of Guardi, 37 id. 535, Decision No. 13,921; Appeal of Friedberg, 34 id. 284, Decision No. 13,311). 6

I have reviewed petitioners’ remaining arguments and find them to be without merit. I must note that this result should not diminish the student’s academic accomplishments. Rather, it means only that respondents’ determination was not arbitrary or capricious.