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Decision No. 13,745

Appeal of SANDRA CUELLAR-OXFORD and KEVIN MCDANIEL, on behalf of ZACHARY OXFORD-MCDANIEL; MICHAEL and MARTHA ZALKIN, on behalf of GABRIEL ZALKIN; BARBARA JEAN LARSEN AND ROBERT F. HOLTZ, on behalf of BLAIR LARSEN-HOLTZ; PATRICIA and ROBERT HALPRIN, on behalf of DAYNA HALPRIN, from action of the Board of Education of the Fallsburg Central School District regarding elimination of a dual language program.

Decision No. 13,745

(February 28, 1997)

Roemer, Wallens and Mineaux, LLP, attorneys for respondent, Mary M. Roach, Esq., of

counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the Fallsburg Central School District ("respondent") to eliminate the dual language program at Benjamin Cosor Elementary School. The appeal must be dismissed.

Since September 1993, respondent operated what is commonly referred to as a dual language program at the Cosor Elementary School. Petitioners are the parents of students who attend respondent's elementary school and participated in the program. The dual language program promoted the education of limited English proficient students and also provided second language acquisition for English proficient students. Under the program, Spanish speaking children spent a substantial portion of their day with a Spanish speaking teacher, English speaking students spent most of their day with an English speaking teacher and for approximately 45 minutes per day the Spanish speaking children were instructed by an English speaking teacher and the English speaking children were instructed by a Spanish speaking teacher.

For the 1993-94 school year, the district received a grant of $124,843 to operate the dual language program with the remaining costs of $63,373 paid by the district. For the 1994-95 school year, the program received a grant of $149,974 with $82,307 of the remaining costs paid by the district. In 1995-96, the program received a grant of $156,796 with the remaining costs of $179,485 paid by the district. For the 1996-97 school year, respondent engaged the services of a grant consultant who worked closely with a committee of parents and faculty to develop a grant application to fund the continuation of the program.

After ongoing disagreements prevented the committee participants from reaching consensus on how the program should be operated, the consultant and interim superintendent determined that the program was unlikely to be successful. On July 17, 1996, the interim superintendent recommended to respondent that the program be discontinued. The interim superintendent's recommendation was based on the committee's inability to reach consensus regarding the operation of the program and his view that the district's money could be better spent on a language program that involved more students. Respondent accepted the interim superintendent's recommendation and approved the addition of a .6 Spanish teacher to the elementary school's staff. This appeal ensued. Petitioners' request for interim relief pending a determination on the merits was denied on September 5, 1996.

Petitioners allege that respondent did not address the dual language program appropriately and allowed significant teacher opposition to eliminate the program. Petitioners also allege that the program was highly effective and beneficial to district students. Petitioners seek an order rescinding respondent's resolution to eliminate the program. Petitioners also seek an order allowing the program to continue to the sixth grade, as respondent's materials originally indicated. Respondent contends that its decision to eliminate the dual language program was made in good faith and was within its discretion. Respondent also contends that the petition is legally insufficient because it was not verified.

Before reaching the merits, I will address respondent's procedural objection. Respondent contends that the petition is not properly verified as required by 8 NYCRR 275.5, which provides that "All pleadings shall be verified. The petition shall be verified by the oath of at least one of the petitioners..." While respondent probably makes that claim because the last page of the petition is only signed by the parties and not verified, the materials submitted with the petition to my Office of Counsel include verifications by all of the petitioners, dated August 14 and 15, 1996. Therefore, I find that the petition was properly verified.

Turning to the merits, petitioners allege that respondent improperly eliminated the dual language program. Respondent contends that it had good reason to eliminate the program because of the controversy surrounding its operation. Likewise, respondent asserts that, after reconsideration, it determined that it could better spend the district's monies on language programs that reached more students. Respondent also contends that it was within its discretion to eliminate the program. Education Law '1709(3) specifically authorizes a board of education to "prescribe the course of study" to be followed in the schools of the district. Absent a statutory or regulatory mandate requiring a particular program, a board of education has significant discretion to determine whether or not to continue a specific program (Appeal of Brunelli, 33 Ed Dept Rep 350; Appeal of Fox, et al., 30 id. 19; Appeal of Feller, 28 id. 321). The responsibility for making decisions as to the course of study in the district rests with the board and is a matter of educational policy within the discretion of the board (Matter of Raffone, 13 Ed Dept Rep 245).

In this case, respondent exercised its discretion to eliminate the dual language program. While petitioners clearly disagree with respondent's determination, they have failed to establish that respondent abused its discretion. Based on the record, there is no basis for me to substitute my judgment for that of respondent and order reinstatement of the dual language program that petitioners seek. However, I urge the parties to work together to reestablish a viable mechanism in the district to ensure satisfactory educational opportunities for limited English proficient students and English proficient students seeking second language acquisition.

THE APPEAL IS DISMISSED.

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