Decision No. 13,464

(August 17, 1995)

Robert J. Chojnacki, Esq., attorney for petitioner

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondent, Jacob S. Feldman, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the adoption of an acquired immune deficiency syndrome (AIDS) condom demonstration project by resolution of the Board of Education of the Lynbrook Union Free School District ("respondent"). The appeal must be dismissed.

Petitioner is the parent of a child who attends respondent's high school. In 1987, respondent established an AIDS Task Force which recommended an AIDS policy. The policy, adopted in January 1988, included AIDS instruction in the curriculum at all levels. In December 1989, respondent amended its AIDS policy as follows:

Respondent's AIDS Task Force met numerous times in the Spring of 1994 to discuss revisions to the district's AIDS curriculum consistent with State Education Department updates and Center for Disease Control information. The Task Force recommended including a demonstration on condom use at the secondary level. In the Fall of 1994, the Task Force held joint meetings with the Lynbrook PTA to update parents in the district regarding this proposal. On November 18, 1994, a letter was sent to parents of all seventh to twelfth graders informing them of the Task Force recommendation on condom demonstrations. That letter included a discussion of opt-out options parents could use if they did not want their child to receive instruction on condom usage.

At its meeting of December 14, 1994, respondent adopted a resolution directing demonstrations on the proper use of condoms as part of the district's AIDS curriculum. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits of her appeal was denied on February 10, 1995.

Petitioner alleges that in adopting the resolution, respondent violated its rules of governance that require proposed new policies to be announced or distributed to district residents and discussed at a regular or special meeting of the board before final action. Petitioner also alleges that she is a Roman Catholic and that both she and her son find the proposed condom demonstration morally repugnant. Respondent argues that its AIDS curriculum is not a new policy and that the adoption of the resolution directing the demonstration project was consistent with its rules of governance. Respondent also raises several procedural objections.

Before reaching the merits, I will address respondent's procedural objections concerning petitioner's reply. As respondent correctly points out, petitioner asserts new allegations, issues and exhibits which were not previously set forth in the petition and which do not respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). Likewise, I note that a memorandum of law may not be used to belatedly add new assertions which are not part of the pleadings (Appeal of Coombs, 34 Ed Dept Rep 253; Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 id. 626). Accordingly, while I have reviewed the reply, the affirmation in opposition to the sur-reply affirmation and the memorandum of law, I have not considered the portions of them that contain new allegations that were not originally contained in the petition.

Section 135.4 of the Regulations of the Commissioner of Education requires that all elementary and secondary schools "shall provide appropriate instruction regarding the acquired immune deficiency syndrome (AIDS) as part of the sequential health education program for all pupils....". Respondent adopted an AIDS curriculum consistent with this regulation in 1988 and amended that curriculum in 1989. When respondent adopted the resolution on December 14, 1994 concerning condom demonstrations as part of the AIDS curriculum, petitioner objected on the grounds that respondent violated Board Policy #8310, entitled "Development of Policies" and #8311, entitled "Policies."

My review of the record indicates that respondent did not violate its own rules of governance in adopting the condom demonstration resolution. Respondent correctly points out that its AIDS policies have been in place for a number of years, and that the new instruction and demonstration on the proper use of a condom are properly described as an adjustment in its AIDS curriculum. In that regard, respondent exercises considerable discretion under Education Law '1709 which requires respondent to prescribe the course of study in the district (Appeal of Brunelli, 33 Ed Dept Rep 350). The record indicates that respondent's AIDS Task Force met a number of times in the Spring of 1994 to consider revisions to the district's AIDS curriculum and made recommendations in June 1994, which included a demonstration at the secondary level of correct condom use.

At a joint meeting of the AIDS Task Force and the PTA on October 27, 1994, there was ample support for instruction on the proper use of a condom. The Task Force proposal to include a condom demonstration as part of the district's AIDS curriculum was discussed at the board's October and November meetings, and additional discussion occurred at the December board meeting when the resolution was adopted. On November 18, 1994, a mailing was sent to the parents of all seventh to twelfth grade students in the district regarding the proposed instruction. On January 27, 1995, respondent mailed a letter to the community, advising them that the board had directed the superintendent to include a demonstration of the proper use of condoms in the AIDS curriculum. Based on the extensive record before me, it appears that sufficient public comment was solicited concerning this demonstration project and I find no basis to overturn respondent's actions in this matter.

Finally, petitioner alleges that respondent's program is contrary to her religious beliefs as a Roman Catholic and is morally repugnant to both her and her son. In its answer, respondent raises the affirmative defense that a parent who objects to the condom demonstration lesson based upon a religious belief may opt-out of the lesson in accordance with '135.4(c)(2)(i) of the Commissioner's regulations. In her reply, petitioner responds to this contention by stating that this regulation would require her to provide condom instruction to her son at home. This argument is disingenuous. 8 NYCRR 135.4(c)(2)(i) provides, in pertinent part:

Consistent with this regulation, respondent informed parents that their secondary school children could opt-out of the condom demonstration project. Therefore, if petitioner objects to her son receiving condom usage instruction, she may choose to opt-out of the program.

Petitioner erroneously construes the opt-out provision of the regulation to require her to provide instruction on condom use to her son at home. This construction is inconsistent with both the plain language and intent of the regulation. Petitioner is free to instruct her son on methods of AIDS prevention which are consistent with her religious beliefs, if she chooses to opt-out of respondent's AIDS curriculum and instruct her son at home. Contrary to her assertions, there is no requirement that petitioner conduct a condom demonstration project in her home to fulfill the regulation's requirements. The opt-out provision simply requires petitioner to assure that the son will receive AIDS instruction at home. It does not seek to dictate the specifics of the instruction petitioner chooses to provide.

I have reviewed petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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