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Decision No. 13,091

Appeal of TERRY BAKER, et al. from action of the Board of Education of the Indian River Central School District relating to teaching assignments.

Decision No. 13,091

(January 7, 1994)

Bernard F. Ashe, Esq., attorney for petitioners, Gerard John DeWolf, Esq., of counsel

Langan, Grossman, Kinney, Dwyer & Reitz, P.C., attorneys for respondent, Marc H. Reitz,

Esq., and Kirstin M. Jahn, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioners appeal their teaching assignments and assert that they violate the workload limitation of 8 NYCRR '100.2(i). The appeal is dismissed.

Petitioners are six elementary school special area teachers and one high school physical education teacher employed by respondent who challenge their assigned daily teaching loads as exceeding the limits mandated by 8 NYCRR '100.2(i).

8 NYCRR '100.2(i), relating to teaching assignments, provides:

(i) Teaching staff in public schools. The number of daily periods of classroom instruction for a teacher should not exceed five. A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy.

Petitioner Baker is an elementary school special area teacher assigned to teach between 185 to 203 students during eight 30 minute physical education classes four days a week, and 156 students during seven 30 minute physical education classes on Tuesdays. He has 765 minutes of planning and preparation time per week which allows him to leave his assignment early and coach for the district. Student contact time ranges from 210 to 240 minutes daily.

Petitioner McCargar is an elementary school special area teacher assigned to teach 154 students during seven 30 minute physical education classes on Tuesdays; 177 students during eight 30 minute periods on Wednesdays, and between 193 and 207 students during nine 30 minute periods three days a week. She is allotted 690 minutes weekly for planning and preparation and has between 210 to 270 minutes of daily student contact.

Petitioner Percy is an elementary school special area teacher who teaches physical education to between 186 to 190 students three days a week during eight 30 minute periods and between 198 to 211 students twice weekly during nine 30 minute periods. She has 480 minutes of weekly planning time and from 240 to 270 minutes of daily student contact.

Petitioner Lehman is a special area elementary school teacher assigned to teach art to 119 students during five periods on Mondays; 128 students during six periods on Fridays; and between 150 to 176 students in seven periods three days a week. His class periods are 40 minutes in length with a clean-up period for art materials. He has 550 minutes weekly for planning and preparation time and from 200 to 280 minutes of student contact.

Petitioner Hunneyman is a special area elementary school teacher assigned to teach music to 111 students during five periods on Wednesdays; 165 students during seven periods twice weekly; 184 students during eight periods on Fridays; and 211 students during nine periods on Tuesdays. The exact length of her teaching time per period is in dispute. Petitioner claims that each period is 30 minutes long, and respondent, 25 minutes long. She has 750 minutes per week for planning and preparation and is not assigned instructional time from 9:30 a.m. to 12:30 p.m. on Wednesdays. She has between 150 and 270 minutes of daily student contact.

Petitioner Santiago is a special area elementary school teacher assigned to teach music to 85 students during four periods on Fridays; between 203-224 students during nine periods twice weekly; and between 233 and 237 students during ten periods the other two days. Respondent claims that each period is 25 minutes but petitioner claims each is 30 minutes. Petitioner is allotted 535 minutes weekly for planning and preparation and has no instructional assignment on Fridays from 9:55 a.m. to 12:30 p.m. Her daily student contact ranges from 120 to 300 minutes.

Petitioner Lovenguth teaches physical education at the high school with a schedule based on a six-day cycle. She has 500 minutes weekly allocated for planning and preparation. Petitioner claims to teach 160 students daily but respondent states that her schedule was reduced as of September 26, 1991 to include 158 students every other day ("BDF" days) and 139 students on the other three ("ACE") days. The average of the two student loads is 148.5 students per day.

Under the current collective bargaining agreement, special area teachers are to receive the same amount of unassigned time as primary classroom teachers, but have no supervisory duties such as homeroom or collection of students at the end of the day. All unassigned time is considered part of a teacher's planning and preparation allotment.

Petitioners contend that respondent violated 8 NYCRR '100.2(i), in that they are required to teach more than 150 pupils and more than six periods per day. Petitioners do not dispute that they are given the planning and preparation time that respondent argues is sufficient for effective teaching but contend that providing the extra time does not diminish respondent's obligation to comply with Commissioner's regulation. Petitioners ask me to order compliance with the regulation and request money damages.

Respondent contends that the periods of daily classroom instruction and the students assigned to each of petitioners' classes do not preclude effective teaching. In addition, respondent offers as justification for its deviation from 8 NYCRR '100.2(i), its need to accommodate unique fluctuations in the size and nature of its student population. Respondent also contends that money damages are not available under 8 NYCRR '100.2(i).

There is no dispute that respondent assigned petitioners to classes exceeding the limitations imposed by regulation. The question arises then whether respondent has offered justification for its deviation. Upon the record before me, I find that respondent has. The demographics of respondent Indian River Central School District ("district") are unique because, located within its boundary is Fort Drum, where the U.S. Army's 10th Mountain Division is based. In recent years, Fort Drum expanded significantly, causing respondent's student population to virtually double from 1,918 in September 1986 to 3,822 in September 1991. Growth has been rapid, sporadic and unpredictable. This is evidenced, for example, by the arrival of hundreds of students on a single day. A notable fluctuation occurred when troops were deployed during Operation Desert Storm which resulted in a decline of 175 students in Spring 1991 and an unanticipated increase of 438 students at the beginning of the 1991-92 school year. To accommodate the new students and balance attendance, respondent commenced a voluntary busing program in 1990 and constructed new elementary and middle schools. At the beginning of the 1991-92 school year, the district added teaching positions in health, music, and physical education. Accordingly, respondent has demonstrated a unique set of circumstances which constitute valid justification for its deviation from the limits set forth in 8 NYCRR '100.2(i), together with good faith efforts to comply with the regulation.

I must note, however, that this decision should not be read to mean that the standards embodied in '100.2(i) can be ignored without consequence. The Board of Regents promulgated '100.2(i) to ensure that effective teaching would not be compromised by substantial teacher workloads. If boards of education were allowed to routinely exceed these limitations, it would undermine the very purpose of the regulation. Accordingly, only unique and compelling circumstances, like those presented in this instance, make out a case for justification. Moreover, even where justification is shown, boards of education must continue to monitor teachers' workloads, and make good faith efforts to come into compliance with '100.2(i) as expeditiously as possible.

Accordingly, notwithstanding proof of justification at this junction, respondent nevertheless has a continuing obligation to comply with the regulation at the earliest possible point in time and, to the extent necessary should consult with the SED North Country field team for technical assistance for this purpose.

THE APPEAL IS DISMISSED.

END OF FILE