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Decision No. 13,982

Appeal of PETER L. TAROLLI from action of the Board of Education of the Liverpool Central School District relating to student photographs.

Decision No. 13,982

(August 7, 1998)

Nottingham, Engel, Gordon & Kerr, attorneys for petitioner, Richard L. Engel, Esq., of counsel

O’Hara & O’Connell, P.C., attorneys for respondent, Shawn F. Brousseau, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the manner in which the Board of Education of the Liverpool Central School District ("respondent") permits student photographs to be taken on school property for school and private use. The appeal must be sustained in part.

This is the second appeal by petitioner, a professional portrait photographer, relating to the manner in which respondent provides for student photographs for both student yearbook and personal use. In Appeal of Tarolli, 25 Ed Dept Rep 216, Commissioner Ambach dismissed petitioner's appeal as moot based on the assertion by respondent’s counsel that "respondent will not permit the solicitation and distribution of student photographs on school premises in the future except were there is a legitimate school purpose associated with such photographs"(Appeal of Tarolli, id. at 217).

On July 30, 1985, respondent adopted the following policy:

School Photographs: The Board of Education of the Liverpool Central School District may permit commercial photographers to use school premises to photograph students provided that the photograph is to be used for a school purpose. These photographs may be taken during or after the school day.

School District premises and personnel may not be used to commercially market student photographs.

By memo dated May 1995, addressed to members of the 1996 senior class of Liverpool High School, the yearbook staff identified Lauren Studios as the official 1996 Hiawathan yearbook photographer. The memo, which was written on Liverpool High School stationery, further indicated,

Because of our desire to produce a quality yearbook with color consistency you must be photographed by Lauren Studios...It is very important to the quality and cost of the senior section that the color prints are provided to the yearbook by one source.

On June 8, 1995 petitioner wrote to respondent’s managing principal indicating his disappointment with the requirement that all yearbook pictures be taken by a single designated studio. Petitioner also objected to the imposition of a sitting fee and to Lauren Studios' intentions to photograph students in a variety of poses which would not be used for the yearbook but would be available for purchase by students for their personal use.

By letter dated June 15, 1995, respondent’s managing principal informed petitioner that students would be allowed to submit yearbook photographs from photographers other than Lauren Studios. With his letter, the managing principal included a specification sheet for yearbook portraits. During the month of July 1995, Lauren Studios took yearbook and personal photographs at Liverpool High School, and in August of that year, students met at the high school with representatives of Lauren Studios to select their yearbook and personal proofs.

Petitioner contends that respondent improperly provided preferential treatment to Lauren Studios by allowing Lauren to use school property to take yearbook photographs. Petitioner further contends that respondent improperly allowed Lauren Studios to use school property to take personal photographs of students and to market those photographs.

Respondent argues that it acted properly in that it allowed students to submit yearbook portraits from photographers other than Lauren Studios, and that in any event, its policy of allowing commercial photographers to use school grounds to photograph students for a school purpose is legally valid. Respondent asserts that "[n]o district personnel participated during school hours or on school grounds in distributing any advertising or in handling any purchase orders for Lauren Studios."

Prior to considering the merits of this appeal, I note that petitioner requested an extension of time to serve and file his reply and memorandum of law. Section 276.3 of the Commissioner’s regulations requires that a request for an extension of time to submit a reply "set forth in full the reasons for the request." Section 276.4 of the Commissioner’s regulations requires that a request to permit the late filing of a memorandum of law set forth good cause for the delay and demonstrate the necessity of such memorandum to a determination of the appeal. Petitioner has failed to set forth the reasons for his request for an extension of time to submit his reply and to establish good cause or demonstrate the necessity of his memorandum to the determination of this appeal. Accordingly, those requests are denied, and petitioner’s reply and memorandum have not been considered in the determination of this appeal. Because the reply and memorandum will not be considered, I also deny respondent’s request to submit a reply memorandum in response thereto.

In addition, petitioner has requested permission to submit two affirmations, and respondent has requested permission to submit an additional affidavit. In appeals to the Commissioner, all evidentiary material must be submitted by affidavit or exhibit (8 NYCRR "276.2[d]; Matter of Angelone, 15 Ed Dept Rep 165), and only attorneys are authorized to submit affirmations in lieu of affidavits (8 NYCRR "275.7). Accordingly, I will not consider the affirmations submitted by petitioner.

With respect to the additional affidavit which respondent seeks to submit, I note that the affiant was out of the country when respondent's answer and affidavit were due to be served. I also note, however, that respondent waited almost three weeks after the affiant returned to seek permission to submit the affidavit in question. Based on that delay, I deny respondent’s request to submit that affidavit.

I turn now to the merits. Article VIII, section 1 of the New York State Constitution provides in part that, "No...school district shall give or loan any money or property to or in aid of any individual, or private corporation or association, or private undertaking...." It has long been held that student photographs may be taken on school premises by commercial photographers only when there is a school purpose for the photographs, such as yearbook, class pictures, student records, or identification cards (Appeal of Tarolli, supra; Matter of Hoyt, 20 Ed Dept Rep 316). Moreover, prior decisions have indicated that school personnel may not participate during school hours or on school grounds in the solicitation of orders, the distribution of advertising materials or copies of photographs, or the collection of charges for the photographs (Matter of Fusare, 19 Ed Dept Rep 543; Matter of Mantler, 18 id. 311).

In Appeal of Gary Credit Corporation, 26 Ed Dept Rep 414, Commissioner Ambach concluded that because the solicitation for and sale of class rings have a legitimate school purpose, those practices do not violate Article VIII, section 1 of the State Constitution and may take place on school grounds provided that the following conditions are met:

1. The board of education has approved the practice;

2. All prospective vendors are given full and equal opportunity to compete; and

3. Students are fully involved in the process.

In the instant appeal, I find that the taking of photographs for the student yearbook is a legitimate school purpose. However, the participation of school personnel and the use of school property in the taking of yearbook photographs is permissible only if the three conditions specified in the preceding paragraph are met. Respondent has approved the practice by the adoption of the board policy referred to above. With regard to the second condition, respondent has submitted an affidavit indicating that petitioner failed to request an opportunity to take student photographs on school property. In its memorandum of law, respondent states that petitioner would have been granted that opportunity had he requested it, and petitioner has submitted no evidence that he was denied the opportunity to take yearbook photographs on school grounds. Finally, it appears from the record that the yearbook staff was involved in the process of arranging for student photographs for the yearbook. Accordingly, I conclude that the use of school personnel and school property was proper insofar as they were used for the taking of yearbook pictures.

I reach a different conclusion, however, with respect to the use of school grounds to take personal photographs of students and to market those photographs. Although the record is not entirely clear, it appears that students met with representatives of Lauren Studios at the high school to pick out the proofs they wanted printed as photographs. While such an arrangement may be convenient for both students and photographers, there is no school purpose served by taking such photographs or by using school facilities to sell them. Such practices constitute improper uses of school facilities and violate Article VIII, section 1 of the State Constitution.

Finally, I note that in May 1995 the yearbook staff sent a memorandum to members of the 1996 senior class indicating that all senior yearbook portraits had to be taken by Lauren Studios. In subsequent correspondence, respondent's managing principal eliminated that requirement, although there is some dispute about how effectively this change was communicated to students. It is well established that students may not be compelled to use a designated photographer to have their photographs included in a yearbook (Matter of Puls, 18 Ed Dept Rep 530; Matter of Puls, 17 id. 324). In the future, respondent must assure that students are not restricted to a single photographer and that the right to choose any photographer who meets yearbook specifications is effectively communicated to students.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent forthwith discontinue the practice of permitting school property to be used by commercial photographers to take and market student photographs which do not serve a school purpose.

END OF FILE