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Decision No. 13,528

Appeal of ROBERT M. KELLY from action of the Eastchester Union Free School District concerning the distribution of textbooks.

Decision No. 13,528

(January 2, 1996)

D'Amato & Lynch, attorneys for respondent, Paul A. Ferrillo, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the policy of the Eastchester Union Free School District ("respondent") pertaining to the loan of textbooks to nonpublic school students. The appeal must be sustained in part.

Petitioner and his four children reside in the Eastchester Union Free School District. During the 1993-94 and 1994-95 school years, three of petitioner's children attended Horace Mann School, a nonpublic institution, located in the Bronx, New York.

Petitioner claims that respondent's procedures for acquiring and lending textbooks violate the Education Law and the Rules and Regulations of the Commissioner. Specifically, petitioner contends that respondent does not loan textbooks based on individual pupil need, but rather that textbook loan requests for nonpublic school pupils are impermissibly limited to $35 per pupil per year, that the limitation improperly includes shipping and handling costs, and that textbooks are not loaned to public and nonpublic school students on an equitable basis as required by law.

On September 27, 1994, petitioner notified both Assistant Superintendent Joel M. Pollak, the administrator responsible for respondent's textbook loans, and Superintendent Robert W. Pellicone, that he believed the school district policy of imposing a per-pupil dollar limitation on book loans to nonpublic students was unlawful. Petitioner based his understanding of the district's textbook loan policy on his wife's conversations with Assistant Superintendent Pollak and Dan Alexander, an administrator at the Horace Mann School. At that time, the Superintendent asked petitioner to submit a list of the textbooks which he was requesting for his children for the 1994-95 school year.

On October 19, 1994, petitioner provided respondent with a list of books his children required for both the 1993-94 and 1994-95 school years. The cost of the books totaled $795.62 and $1,191.65, respectively, for three children for each year.

By letter dated December 6, 1994, Ronald A. Longo, of Keane & Beane, P.C., responded on behalf of the school district. Respondent denied the request for the 1993-94 school year, stating that there could be no reimbursement of costs where no prior request for books had been made. The letter also indicated that respondent had located "approximately one-half dozen books" which could be loaned to petitioner's children for the 1994-95 school year. Finally, Mr. Longo asked petitioner to revise his list because "the district will be expending approximately $35 to $40 per student for new textbooks during the entire 1994-95 school year" and that to provide petitioner's children "textbooks over and above that which has been provided to other students . . . would not be fair and equitable." Petitioner did not avail himself of the books which respondent offered to loan his children because he had purchased their books before submitting his request.

On March 17, 1995, petitioner commenced a federal civil rights lawsuit in the United State District Court for the Southern District of New York alleging that respondent's policies and procedures relating to the purchase and loan of textbooks unlawfully discriminate against nonpublic school students residing in the district. At a pretrial conference, presiding Judge Brieant asked petitioner to pursue an appeal before the Commissioner of Education.

Petitioner requests that I declare illegal respondent's textbook loan practices and direct it to refrain from unlawful practice in the future. He asks me to direct the district to formulate a new policy, to revise its forms, and to adopt appropriate procedures. Petitioner finally requests me to direct the district to reconsider his textbook requests.

Respondent contends that it did not impose a monetary limit on the textbooks purchased for any child, that shipping and handling charges were not considered in determining requests, and that it distributes textbooks equitably in compliance with Education Law '701. In its defense, respondent asserts that petitioner's claim is untimely, that petitioner fails to state a claim, and that respondent district complied with Education Law.

First, respondent maintains that this petition should be dismissed as untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown in the petition (8 NYCRR 275.16). Here, petitioner chose to bring his initial challenge in federal court, and this appeal was brought subsequently on the advice of the court to allow me to resolve issues involving the interpretation of the Education Law and Commissioner's Regulations. Good cause for delay in filing a '310 appeal has been found where attempts to litigate an issue in court were unsuccessful, as long as there was not a final determination on the merits and provided that an appeal was commenced within a reasonable time after dismissal or abandonment of the court proceeding (Appeal of Polifka, 31 Ed Dept Rep 61; Appeal of Martin, 29 id. 148). Moreover, it would be inappropriate for me to dismiss this matter on procedural grounds where a Federal Court has indicated that a decision on the merits from the Commissioner would be helpful in resolving important issues under the Education Law.

Respondent also contends that petitioner fails to state a cause of action and that it acted in compliance with the Education Law. I disagree. Comparing respondent's practices with the requirements of the law leads me to conclude that the district is not distributing textbooks to public and nonpublic students in an equitable manner, as that statutory term has been interpreted and applied since the current textbook law was enacted 30 years ago.

Sections 701(3) and (4) of the Education Law and '21.2 of the Commissioner's Regulations govern textbook purchases and loans. By statute, boards of education are required to purchase and to loan textbooks to all resident children enrolled in a public or nonpublic school. However, no school district is required to purchase textbooks in a single school year in excess of an amount equal to $35 multiplied by the number of resident pupils (i.e., the amount of State textbook aid to which the district is entitled). Nevertheless, all textbooks, whether previously owned or newly acquired by a district, must be loaned to resident children enrolled in public and nonpublic schools on an equitable basis.

The term "equitable basis" has consistently been interpreted since the inception of the statute in 1966. To provide for an "equitable" distribution of textbooks, a board of education must determine its need for new textbooks each year by compiling all requests for textbooks and comparing such requests with existing inventory (Appeal of Gross, 25 Ed Dept Rep 382). If the existing supply of textbooks owned by the district is insufficient to meet the needs of resident pupils in public and nonpublic schools, the board must purchase additional textbooks, but is not required to expend more than the amount of textbook aid available for that purpose (currently $35 multiplied by the resident public and nonpublic enrollment) (id.). Boards of education may appropriate an amount in excess of the required minimum for the purchase of textbooks with the approval of the voters in those districts in which the budget by law must be approved by the voters. In the event that an appropriation for the purchase of textbooks does not permit the purchase of all the books required, the board must adopt a procedure that will ensure an equitable distribution of the textbooks available (id., Matter of Sennert, 15 Ed Dept Rep 314). That is, a board must determine which categories of textbooks can be loaned free to both public and nonpublic pupils within the resources available. Education Department Guidelines cite decisions not to provide consumable workbooks in certain subject areas or to pupils in certain grade levels as examples of equitable treatment (New York State Textbook Loan Program: Recommended Procedures for Textbook Purchases, Loans and Inventory Control, December 1994). The guidelines encourage boards to discuss such decisions with the nonpublic school administrators, who are urged to be sensitive to the budgetary constraints in the school district. All pupils must then purchase the textbooks for the courses for which textbooks cannot be loaned. As respondent correctly points out, the result may be that certain students have all of their textbooks provided by the district while others do not (Matter of Haverlin, 22 Ed Dept Rep 121).

Improper practices have been identified in past Commissioner's decisions. In 1967, Commissioner Allen construed former ''701(3) and (4) (which then provided for a maximum required expenditure of $15) as forbidding per-pupil dollar limits on textbook purchases. In response to a school board resolution authorizing an average expenditure of $15 per nonpublic school pupil, he distinguished between the expenditure and lending requirements of '701 and concluded:

Reading the subdivisions together establishes beyond doubt that the $15 limitation is applicable only to the mandated expenditure and not to the mandated lending procedure. To construe the subdivisions otherwise would leave meaningless and completely unintelligible the requirement that all textbooks owned or acquired be loaned on an equitable basis. Had the Legislature intended to limit the lending procedure to the $15 restriction, it could have, and presumably would have, employed explicit language (Matter of Williams, 7 Ed Dept Rep 82, 84, emphasis added).

Similarly, later decisions denounced the practices of calculating either allocations for individual nonpublic schools or a total nonpublic school allocation on a per-pupil limit or average basis (Matter of Sennert, supra; Matter of Nellis, 19 id. 406; Appeal of Gross, supra; Appeal of Caunitz, 30 id. 396). Since it is inappropriate to allocate a specific dollar charge to particular students or schools, it is similarly improper to allocate shipping and handling charges to individual requests (Appeal of Gross, supra).

Here, neither petitioner nor respondent has provided a written textbook loan policy attributable to respondent. Therefore, respondent's "policy" must be gleaned from its practices and procedures. In an appeal before the Commissioner, the petitioner has the burden of establishing all the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioner has provided the evidence from which conclusions can be drawn as to respondent's textbook loan policy and procedures: respondent's textbook request forms and instructions for the 1994-95 school year, nonpublic textbook requests and respondent's approvals for that year, and written correspondence between petitioner and respondent. In addition, respondent submitted affidavits from its textbook administrator and its counsel. From these documents I conclude that the district failed to make an assessment of the textbook needs of all of the students and therefore was unable to develop a procedure to ensure an equitable distribution of the available textbook resources.

First, petitioner provided a copy of two forms and accompanying instructions which respondent used to collect textbook loan requests for nonpublic students for the 1994-95 school year. The cover memo addressed to nonpublic school principals states, "The full $25 per pupil aid will be provided to each school based upon the number of students resident in Eastchester. Please take into consideration the fact that your monies must include postage and shipping charges on the books ordered." The instructions to one form, on which the school was instructed to list each student and the books requested on their behalf, state, "Total purchases including shipping charges must not exceed $25 multiplied by the number of your pupils who reside in this school district as reported in October 1994." The second form is, according to its instructions, "the basic order form for your requests which will eventually be sent to the publishing company." The instructions again state, "The full per pupil aid will be allocated to each school . . . Please take into consideration the fact that your monies must include postage and shipping charges on the books ordered." (It should be noted that petitioner concedes that the stated $25 limit had been increased to the $35 textbook aid available in 1994-95.)

Respondent's textbook administrator denies imposing a dollar limitation on textbook purchases for any individual student and denies taking shipping and handling costs into account in its decision-making process. He states that the forms were used "inadvertently" and points to the completed textbook request forms as evidence that the nonpublic school administrators were not inhibited from requesting textbooks in excess of the alleged monetary limit.

First, I find disingenuous respondent's characterization of the district's use of the form as "inadvertent." It is not as though a provision were omitted or a single reference to a limitation were included. Rather, a purported dollar limitation is repeated and the use of an order form which is intended to be sent to the publishing company strongly suggests that respondent is only soliciting requests for new textbook purchases. In addition, the $25 limitation referred to in the documents reflects the textbook aid amount which has not been in effect since the 1992-93 school year. Therefore, I conclude that these forms were used for at least three years, which belies respondent's claim that their use was "inadvertent."

Petitioner also provided copies of respondent's completed textbook request forms for nonpublic schools for the 1994-95 school year. They demonstrate that nonpublic schools did not list all of the textbooks needed by each student for the upcoming year. Rather, they consistently reflect a limited number of books per pupil, the maximum per-pupil cost of which was $44.97. One example, to which respondent points in its defense, is a request form from a school where one book was requested and approved, ranging in cost from $36.47 to $39.97, for each of five high school students -- clearly not reflective of the total textbook needs of these students and clearly geared toward some perceived dollar limitation. There is no indication that other books were requested or loaned from the district's existing stock of textbooks for any nonpublic school students.

There is also no indication as to the basis upon which respondent approved textbook requests. It appears that in general, except for the occasional disapproval of a pupil, all requested books were approved for purchase. Respondent's focus on disproving petitioner's allegation of a $35 per-pupil limit by pointing to specific instances where it approved books for specific individuals in excess of $35 (up to $44.97) demonstrates its fundamental misunderstanding of the requirements of '701. The fact that respondent did not limit per-pupil purchases to $35 does not in and of itself bring respondent into compliance with '701. Rather, respondent's instructions, which indicated that purchases would be limited, and nonpublic school responses, which demonstrate that the schools did limit their requests, lead me to conclude that respondent failed to elicit the information it needed to provide textbooks to its resident students on an equitable basis.

Respondent's assessment of petitioner's claim provides further support that respondent misunderstood and misapplied the requirements of the textbook law. For example, respondent characterized petitioner's request as "unorthodox" and "completely at odds with the provisions of Section 701" and concluded "that it simply would not be equitable for the District to buy every textbook new for each of his children." In fact, petitioner submitted the textbook needs of his children. If petitioner had been requesting textbook loans (rather than reimbursement), respondent should have applied the same standards for approval as it applied to all other requests. Because petitioner's request was not made until after the start of the school year, respondent may have been constrained by lack of resources (both available textbooks and funds to purchase new books). On the other hand, if respondent had not expended its full textbook aid entitlement, it could have been compelled to purchase and loan the books needed by petitioner's children in that school year. Respondent's apparent lack of standards has forced it into the position of drawing broad conclusions as to what would constitute "equitable" treatment of petitioner's children.

It is clear that, while each pupil was not limited to $35 as alleged by petitioner, respondent school district's textbook loan policy is inconsistent with Education Law, Commissioner's Regulations, and Department guidelines in that it did not consider all of the needs of the pupils in determining the equitable allocation of its textbook resources. Therefore, I direct the school district to revise its procedures and practices to bring it into compliance.

However, petitioner has not requested textbook loans, but reimbursement for textbooks he had purchased. With respect to this request, I must dismiss petitioner's claim. The statute provides for loan of textbooks owned by the public school district, not for reimbursement for textbooks purchased by individuals. Therefore, it is not permissible for respondent to reimburse petitioner for textbooks he purchased for his children (Matter of Williams, 7 Ed Dept Rep 82).

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that the Board of Education of the Eastchester Union Free School District hereafter comply with the provisions of Education Law '701.