Decision No. 13,590

(April 1, 1996)

Douglas Walter Drazen, Esq., attorney for petitioner

MILLS, Commissioner.--Petitioner appeals respondents' actions concerning instruction about acquired immune deficiency syndrome ("AIDS"). Petitioner also seeks the removal of respondents for willful misconduct and neglect of duty. The appeal must be dismissed.

In the fall of 1993, 10 students of the Afton Central School District Service Club ("Afton Service Club") attended a seminar sponsored by Binghamton University and the Southern Tier AIDS Project ("STAP"). On or about October 5, 1994, 20 students of the Afton Service Club attended a further in-service training program at Binghamton University. The purpose of this program was to train students as "peer educators" so they could bring the message of AIDS prevention back to their schools. The Afton students were accompanied at that program by the service club's advisor, Helen Kittle, a math teacher in the Afton High School. Ms. Kittle had previously served as a member of the district's AIDS curriculum advisory council in 1988.

Two of the eleventh grade students who attended the training program expressed an interest in making an AIDS prevention presentation to other students. After consulting with the building principal, a decision was made to have the students' presentations delivered in the middle school English classes. This decision was based upon the fact that all middle school students were enrolled in English at the time.

Ms. Kittle reviewed, critiqued and revised the students' presentations to ensure that they complied with the district's AIDS curriculum and policy. Ms. Kittle required the student presentors to prepare detailed notes of their presentations from which they could not deviate.

On November 10, 1994, the two students made their presentations in the 7th, 8th and 9th grade English classes taught by Ms. Schambach. The week before, Ms. Schambach had announced to her classes that such presentations would be made.

Petitioner's daughter, Jennifer, a seventh grader, saw the presentation in Ms. Schambach's first period English class. Petitioner alleges that her daughter was exposed to age-inappropriate material during the presentation. Petitioner further alleges that her daughter was so uncomfortable that she had to put her head down on her desk. Ms. Schambach alleges that she did not witness any student become visibly upset or uncomfortable during the presentations.

Petitioner and another parent, Cindy Bales, attended the presentation which was made in Ms. Schambach's second period 8th grade English class. There was no health teacher present during this presentation. Ms. Bales' daughter, Amanda, also saw the presentation later that day as part of her 8th grade English class.

On November 14, 1994, petitioner and a group of other parents, met with superintendent Vernice Church, school principal Joseph Collea, board member Margery Secrest and Ms. Kittle to complain about the presentations. Thereafter, petitioner and other parents attended a school board meeting on November 28, 1994 at which a video of the presentation was shown.

On December 7, 1994, respondent board passed a resolution concerning AIDS education. The resolution provides for the establishment of a health advisory council, as recommended in a State Education Department report of July 15, 1994. The resolution further provides that until the board and/or health advisory council can determine some other method of operation, any presentations by the "peer educator" group would only take place outside of the regular school day with parental permission for attendance. In addition, the resolution provides that any other classes, such as health, should operate as they have in the past without any changes in curriculum or notification to parents.

Petitioner commenced this appeal on January 6, 1995 and requested a stay of any further AIDS "peer education" pending a final determination in this appeal. On February 6, 1995 Commissioner Sobol denied this request.

Petitioner contends that AIDS "peer education" was and is contrary to '135.3 of the Commissioner's regulations. In addition, petitioner contends that the board's December 7, 1994 resolution is invalid. Specifically, petitioner maintains that the resolution is invalid because: it permits AIDS instruction outside an existing class period; the instruction is not taught as part of the required health curriculum by a certified health teacher; no recommendations of an advisory council were made concerning the instruction; and the instruction does not provide accurate information to students, does not stress abstinence, is not age appropriate and is inconsistent with community values. Petitioner also alleges that the resolution further delays the establishment of an advisory council.

In addition, petitioner maintains that the superintendent and board of education should be removed because AIDS "peer education" violated the Commissioner's regulations; parents were not given the opportunity to request that their children not participate; respondents approved expenditures and allowed the use of school property for an unauthorized program and took no disciplinary action against those who violated the Commissioner's regulations. Petitioner further maintains that the board should be removed because it abdicated its responsibility to review and approve the curriculum and failed to obtain the recommendation of an advisory council. Petitioner also requests that I hear this appeal as a class action.

Respondents maintain that the petition should be dismissed on a number of procedural grounds. Specifically, respondents maintain that the petition fails to state a claim, is untimely, moot, and seeks an advisory opinion. Respondents also maintain that petitioner is not aggrieved by the board's December 7, 1994 resolution and contend that there is no basis for a class appeal. In addition, respondents contend that the district maintains a proper policy and curriculum regarding AIDS education and that the board and superintendent have acted in good faith and in full compliance with law and regulation. Respondents further maintain that the use of "peer educators" is legally permissible.

Initially, I must address several procedural issues. The record reveals that petitioner's reply 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). A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been in the petition and which respondents could have answered (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). 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, et al., 34 Ed Dept Rep 253). Accordingly, while I have reviewed petitioner's reply and memorandum of law, I have not considered the portions of them that contain new allegations and exhibits that were not originally contained in the petition.

In addition, the record indicates that respondents submitted a supplemental memorandum of law. Section 276.4 of the Commissioner's regulations provides for the submission of reply memoranda with the prior approval of the Commissioner. In addition, the Commissioner, in his discretion, may permit the late filing of memoranda upon written application by a party, setting forth good cause for the delay and demonstrating the necessity of such memoranda (8 NYCRR 276.4). The record indicates that respondents served a memorandum of law at the time they served their answer, well before it was due. In addition, respondents served a supplemental memorandum of law 2 days after the time limit for service of a memorandum expired. In light of this brief delay, I have accepted respondents' supplemental memorandum. However, consistent with my ruling herein regarding new allegations introduced belatedly, I have not considered the portions of the supplemental memorandum that address new allegations and exhibits contained in petitioner's reply and memorandum of law.

I will now address the procedural defenses raised by respondents. First, respondents oppose petitioner's request to maintain this appeal as a "class appeal". Specifically, petitioner seeks to bring this appeal on behalf of 203 other residents of the Afton Central School District. In support of her application for class status, petitioner submits a signed statement by residents of the district opposing AIDS "peer education". A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where questions of fact and law are common to all members of the class" (8 NYCRR 275.2[a]). In this case, petitioner has not demonstrated that all questions of fact and law are common to all members of the class. Class status is, therefore, denied.

Respondents also maintain that this appeal is untimely. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Although petitioner alleges that she appeals the board's December 7, 1994 resolution, it is apparent that petitioner attempts to challenge the "peer" presentations, which occurred on November 10, 1994. Petitioner, however, did not commence this appeal until January 6, 1995. Petitioner argues that the appeal is timely nevertheless because respondents' actions were in the nature of a continuing wrong. There is no evidence, however, that any "peer" presentations occurred in any class after November 10, 1994, or that respondent board ever adopted a policy permitting such in-class presentations. Therefore, I do not find a continuing wrong. Moreover, petitioner clearly knew that the presentations occurred on November 10, 1994, but did not appeal until January 6, 1995. Accordingly, all of petitioner's claims concerning the November 10 presentations are dismissed as untimely. Petitioner's claims concerning the December 7, 1994 resolution, however, survive.

Portions of petitioner's application for removal must also be dismissed as untimely. The 30-day time limit of '275.16 is applicable to proceedings for removal from office pursuant to Part 277 of the Commissioner's regulations (8 NYCRR 277.1; Application of Bd. of Educ., City School District of the City of New York, et al., 28 Ed Dept Rep 451). Most of the actions allegedly providing a basis for removal occurred more than 30 days prior to the commencement of this appeal. Specifically, the action or inaction of the board and superintendent in allowing the November 10, 1994 presentations to occur clearly occurred more than 30 days prior to the commencement of this appeal. Likewise, respondents' action or inaction in allowing students to attend the STAP program occurred more than 30 days prior to the commencement of this appeal. Moreover, the record indicates that petitioner discovered the alleged misconduct of respondents on or before November 14, 1994, 53 days prior to bringing the appeal. Accordingly, these portions of petitioner's application for removal must be dismissed as untimely.

Respondents further maintain that petitioner's claims concerning the December 7, 1994 resolution should be dismissed for lack of standing. That resolution provides, in part, that "[u]ntil the board and/or health advisory council can determine some other method of operation, any presentations by the peer educator group would take place outside of the regular school day with parental permission for attendance. Any other classes (Health, Science, etc.) should operate as they have in the past without any changes in curriculum or notification to parents." As a result, petitioner's children will not be exposed to any further "peer" presentations, and therefore, petitioner is not aggrieved. As such, she does not have standing to object to this portion of the December 7, 1994 resolution (Appeal of Ulcena, 33 Ed Dept Rep 328). However, petitioner also contends that the resolution delays the establishment of an AIDS advisory council. As to this specific claim, I find that petitioner has standing.

All of petitioner's claims concerning the board's December 7, 1994 resolution, however, must be dismissed on the merits. Petitioner contends that the resolution violates 8 NYCRR 135.3 which provides in part that "All secondary schools shall provide appropriate instruction concerning the acquired immune deficiency syndrome (AIDS) as part of required health education courses in grades 7-8 and in grades 9-12" (8 NYCRR 135.3[c][2][i]). The regulation requires such instruction to be designed to provide accurate information to pupils concerning the nature of the disease, methods of transmission and methods of prevention; stress abstinence as the most appropriate and effective premarital protection against AIDS, and be age appropriate and consistent with community values (Id.). The regulation further requires that "such instruction shall be given during an existing class period using existing instructional personnel."

Respondent board's December 7, 1994 resolution permits "peer" presentations outside the regular school day with parental permission. However, there is no indication in the record that these voluntary after-school presentations take the place of the district's regular AIDS instruction or do anything more than augment the district's AIDS curriculum. In fact, the resolution specifically states that "any other classes (Health, Science, etc.) should operate as they have in the past without any changes in curriculum or notification to parents." Therefore, the resolution cannot be said to violate the regulation since it does not replace the district's regular AIDS curriculum with "peer" presentations. Moreover, there is nothing in Education Law '414 which prohibits a group of students from voluntarily meeting after school to discuss AIDS prevention.

Furthermore, there is no merit to petitioner's contention that the December 7, 1994 resolution further delays the establishment of a health advisory council. In fact, the resolution directed the formation of a council to begin work in March or April 1995.

Nor does there appear to be any basis for the removal of respondents. Education Law '306 authorizes the Commissioner of Education to remove a member of the board of education or superintendent for a willful violation or neglect of duty or willful disobedience of a decision, order, rule or regulation of the Regents or the Commissioner (Education Law '306[1]; Application of Sabuda, et al., 31 Ed Dept Rep 461; Matter of Legatos, 23 Ed Dept Rep 10). To be considered willful, respondents' actions must have been done intentionally and with a wrongful purpose (Matter of Board of Cooperative Educational Services, et al., 32 Ed Dept Rep 519; Application of Griffin, 31 id. 221; Application of Gellatly, et al., 30 id. 10). In an appeal to the Commissioner, the petitioner has the burden of proof of establishing the facts upon which he seeks relief (8 NYCRR 275.10, Application of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284).

On the record before me, petitioner has failed to demonstrate that respondents willfully neglected their responsibility for the district's AIDS instruction program. The record indicates that respondent board developed an AIDS curriculum in 1988 in compliance with '135.3. In addition, respondent board adopted an AIDS instruction policy. The fact that the "peer" presentations occurred on November 10, 1994 without respondents' knowledge does not, in and of itself, establish that respondents willfully neglected their duties. Even if it could be said that respondents neglected their duties, petitioner has not proved that respondents intentionally acted with a wrongful purpose to disregard those duties. Mere negligence on the part of a school officer is not enough to warrant removal (Appeal of Schofield, 34 Ed Dept Rep 143; Application of Morris, et al., 35 id. 193; Application of Brennan, 35 id. 214).

Petitioner also contends that respondents willfully failed to establish a health advisory council as recommended in a July 1994 report of the State Education Department. However, there is nothing in the State report which mandates the establishment of the council by a certain date. Moreover, the board's December 7, 1994 resolution directed the formation of an advisory council to begin work in March or April of 1995. Therefore, I do not find respondents' actions concerning the advisory council to constitute a basis for removal.

Lastly, petitioner contends that respondents should be removed for failure to take any disciplinary action. I find that this contention must be dismissed for two reasons. First, petitioner fails to name those individuals against whom such action should have been taken. Second, petitioner has failed to allege any legal basis for such disciplinary action. Accordingly, respondents' actions concerning its employees do not constitute a basis for removal.

Although I must dismiss petitioner's claims concerning the November 10, 1994 "peer" presentations as untimely, I offer the following comments concerning the use of "peer educators." Although '135.3 does not specifically address the use of "peer educators," this issue is addressed in the State Education Department's "1995 HIV/AIDS Instructional Guide", approved by the Board of Regents at its June 1995 meeting. The guide suggests that "peer" teaching is an effective tool which can be used to present AIDS education. Of course, if "peer" teaching is to be incorporated into respondent board's AIDS curriculum, its use should first be reviewed by the district's advisory council, and implemented consistent with the Commissioner's regulations.

THE APPEAL IS DISMISSED.

END FILE

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