Decision No. 13,725

(January 3, 1997)

Janet Axelrod, Esq., attorney for petitioners

Guercio & Guercio, Esqs., attorneys for respondent, Gary L. Steffanetta and Ralph DeMarco, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the actions of the Board of Education of the Hicksville Union Free School District ("respondent") regarding shared decisionmaking in two separate appeals. Because the appeals raise similar issues, they are consolidated for decision. The appeals must be dismissed.

Petitioners are teachers employed in respondent's district. Petitioner Zaleski is president of the Hicksville Congress of Teachers and a member of the District-wide Steering Committee on Shared Decision-Making (SDM). Petitioner Gimmi is a member of the District Curriculum Council. The district's shared decisionmaking plan was approved in 1994 by the State Education Department and contains the following provisions regarding the handling of curriculum matters:

In February 1996, the middle school building team approved a proposal called "Star Regents" and forwarded them to the superintendent without consulting the District Curriculum Council. In March 1996, the middle school building team voted to approve a co-teaching proposal which was sent to the District Curriculum Council and the superintendent. Although the District Curriculum Council heard a presentation of the co-teaching plan, no vote was taken on the plan. The co-teaching plan was forwarded to the superintendent and respondent board for consideration. At its meeting on April 24, 1996, respondent voted to eliminate the BASICS classes at the middle school, in response to higher academic standards set by the Board of Regents and the State Education Department. Petitioners allege that the vote to eliminate the BASICS classes had the effect of approving the co-teaching proposal. The first appeal ensued.

At its meeting on May 7, 1996, the District Curriculum Council heard a presentation concerning the elimination of the ninth grade English Basic Program at respondent's high school for the 1996-97 school year. On May 8, 1996, the Curriculum Committee of respondent board discussed the proposed elimination of the aforesaid program. A recommendation to eliminate the program was forwarded to the superintendent and respondent board even though the District Curriculum Council did not reach consensus on the matter. At its meeting on May 21, 1996, respondent voted to approve the elimination of the ninth grade English Basic Program for the 1996-97 school year. The second appeal ensued.

Petitioners allege in both appeals that respondent failed to follow its shared decisionmaking plan with regard to these matters and seeks orders rescinding respondent's actions on April 24, 1996 and May 21, 1996 regarding elimination of the programs and an order to respondent to refrain from considering any curriculum proposal unless it has been approved by the District Curriculum Council.

Respondent raises a number of procedural objections. In the first appeal, respondent contends that petitioner Zaleski lacks standing, that petitioners have failed to exhaust the administrative remedies contained in the district's shared decisionmaking plan, that the appeal is untimely, that nothing in 8 NYCRR 100.11 mandates that respondent obtain the approval of any shared decisionmaking team before implementing a decision and that respondent has statutory authority to formulate the instructional programs of the district, and that obligation is non-delegable.

In the second appeal, respondent contends that petitioners lack standing, that the appeal is untimely, that the petition fails to state a cause of action, that nothing in 8 NYCRR 100.11 mandates that respondent obtain the approval of any shared decisionmaking team before implementing a decision and that respondent has statutory authority to formulate the instructional programs of the district, and that obligation is non-delegable.

The record before me indicates that petitioners sought to prevent respondent from implementing curriculum changes in the district that it deemed necessary. Petitioners claim that respondent was required to send its curriculum changes to the shared decisionmaking teams and allow those changes go through the shared decisionmaking process. However, the language of the respondent's shared decisionmaking plan is expressly permissive concerning curriculum matters, and stated that:

The plan does not require, nor can it expressly require, respondent to delegate its obligation for curriculum matters to shared decisionmaking teams. As respondent notes, decisions as to what instructional programs are to be offered in the schools within a district are within the discretion of the board of education (Education Law '1709; Matter of Reilly, et al., 20 Ed Dept Rep 191). In addition, Section 100.11 of the Commissioner's regulations provides that a board of education must consult certain individuals when developing a plan for school-based planning and shared decisionmaking. Nothing in that section mandates that a board of education obtain the approval of a school-based planning team before implementing a decision (Appeal of Gillespie and Karafonda, 34 Ed Dept Rep 240).

As I noted in Appeal of Orris and Kelly, 35 Ed Dept Rep 184, while matters such as student performance are an appropriate issue for discussion under shared decisionmaking, the plan does not specifically mandate the committee's review of school grading policies. Likewise, while curriculum matters are appropriate subjects for discussion under shared decisionmaking, a school district's determination on curriculum matters which is statutorily required, cannot be delegated to the shared decisionmaking process. Based on the record before me, I find no basis to reverse curriculum decisions made by respondent as petitioners request.

In light of the foregoing disposition, I will not address the remaining issues raised by the parties.

THE APPEALS ARE DISMISSED.

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