Decision No. 14,078
Appeal of EILEEN BANSCHBACK and TIMOTHY DOWLER, from action of the Board of Education of the Middle Country Central School District relating to adaptive physical education.
Decision No. 14,078
(February 18, 1999)
James R. Sandner, Esq., attorney for petitioners, Stuart I. Lipkind, Esq., of counsel
Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz and Jessica S. Weinstein, Esqs., of counsel
MILLS, Commissioner.--Petitioner teaching assistants challenge respondent's assignment of them to teach adaptive physical education. The appeal must be sustained in part.
Petitioners are certified physical education teachers, employed by respondent as teaching assistants and assigned to teach adaptive physical education under the general supervision of a certified physical education teacher pursuant to "135.4(c)(1)(iv) of the Commissioner's Regulations. Petitioners allege, and respondent admits, that pursuant to such assignment they are required to perform the "primary instructional duties" relating to the teaching of adaptive physical education. Such duties include the preparation of individualized education plans, the preparation of lesson plans, teaching students, determining students' grades and giving supervision and direction to teacher aides assigned to their classes. Respondent affirmatively states that petitioners perform their duties under the general supervision of a certified physical education teacher.
Petitioners contend that their assignment to the above-stated duties violates State Education Department guidelines and constitutes an assignment outside their teaching assistant tenure area, in violation of ""30.8(d) and 30.9(b) of the Commissioner's Regulations. Petitioners request an order directing respondent to limit petitioners' assignments to those within the teaching assistant tenure area and to refrain from assigning petitioners to perform the primary instructional duties relating to the teaching of adaptive physical education.
Respondent denies the assignments violate the Commissioner's Regulations and contends that the assignments are authorized pursuant to ""80.33(b) and 135.4(c) of the Commissioner's Regulations, which take precedence over Department guidelines.
Section 135.4(c)(1)(iv) of the Commissioner's Regulations provides:
There shall be activities adapted to meet the needs of pupils who are temporarily or permanently unable to participate in the regular program of physical education. Adaptive physical education programs shall be taught by a certified physical education teacher.
Section 80.33(b)(1) of the Commissioner's Regulations provides:
A teaching assistant is appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional service to students.
In Appeal of Rees and Chachakis, 34 Ed Dept Rep 616, former Commissioner Sobol examined respondent's adaptive physical education program and determined: (1) that respondent's assignment of teaching assistants to teach adaptive physical education complied with "135.4(c)(1)(iv) since all of the teaching assistants so assigned were certified physical education teachers; and (2) the use of teaching assistants to teach adaptive physical education without direct supervision by a certified teacher is authorized by "80.33(b)(1), which requires that a certified teacher provide general supervision and which does not mandate such teacher's presence at the time instruction is provided. Accordingly, pursuant to the Rees decision, teaching assistants may teach adaptive physical education provided that such instruction is under the general supervision of a licensed or certified teacher. In addition to teaching students, such instruction would include preparation of lesson plans, progress reports, IEPs, and supervising and directing teacher aides assigned to the classes, provided that such activities are under the certified teacher's general supervision.
Petitioners' reliance on the June 1995 "Guidelines on the Use of Teacher Aides and Teaching Assistants" issued by Commissioner Sobol is misplaced. Those guidelines are general in nature and do not specifically address the use of teaching assistants with respect to adaptive physical education and, in any event, are merely guidelines and do not supercede the Commissioner's interpretation of ""135.4(c)(1)(iv) and 80.33(b)(1) as set forth in the Rees decision.
Also without merit is petitioners' contention that their assignment to perform the enumerated duties constitutes an impermissible assignment outside petitioners' tenure area of teacher assistant without their consent pursuant to ""30.8(d) and 30.9(b). Provided that petitioners perform their duties with respect to adaptive physical education under the general supervision of a certified or licensed teacher, petitioners are acting within their assigned tenure area of teaching assistant.
Respondent affirmatively states that petitioners do, indeed, perform their duties under the general supervision of a certified physical education teacher. Nevertheless, my examination of the record indicates that the supervision provided by the certified teacher is deficient in certain respects. Respondent submits the affidavit of its Director of Health, Physical Education and Athletics which states in a conclusory manner that the teaching assistants receive direction and general supervision from a certified physical education teacher. The Director's affidavit also states that through his conversations with the certified teacher assigned to provide general supervision to petitioner, it was made "clear" that the teacher was supervising the teaching assistants in placing students in the appropriate adaptive physical education classes; preparing lesson plans, progress reports and grades; and developing individualized educational programs for the students assigned to adaptive physical education. However, petitioners each submit affidavits stating that they prepare the lesson plans, progress reports and Individualized Education Programs (IEPs); that the IEPs are distributed to the students' classroom teachers and/or the special education office and are not "re-done" by the teacher; and that the grades assigned are recorded on the appropriate forms and distributed to the appropriate office and are not "re-done" by the teacher.
To be deemed sufficient, the "general supervision" provided pursuant to "80.33(b)(1) must involve some degree of review and approval by the certified teacher of the lesson plans, progress reports and IEPs prepared by the teaching assistants, and of the grades proposed by the teaching assistants. It appears from petitioners' affidavits that, at least with respect to the IEPs and grades, there has been no review or approval by the certified teacher. Accordingly, the appeal must be sustained to the extent that respondent is directed to take measures to ensure that IEPs and proposed grades are reviewed and approved by the certified teacher assigned to the general supervision of petitioners. Furthermore, although the record is unclear whether the certified teacher has reviewed and approved the lesson plans and progress reports prepared by petitioners, respondent must ensure that such review and approval takes place. In short, petitioners must work under the "supervision" of the certified teacher in fact, not just on paper. Deficient supervision may, as a practical matter, result in teachers being supplanted by teaching assistants, which is not permissible under law.
Without a certified teacher present, petitioners may teach adaptive physical education and supervise and direct teacher aides assigned to such classes, pursuant to "80.33(b)(1) and the Rees decision, provided that they do so under the general supervision of such teacher. There is nothing in the record to establish that the general supervision provided by the certified teacher with respect to such teaching and supervision of aides is inadequate. Petitioners acknowledge that respondent has assigned a certified physical education teacher to provide general supervision over petitioners and make no specific allegations concerning such supervision with respect to petitioners' teaching and supervision of aides.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that respondent ensure that its use of teaching assistants to teach adaptive physical education occurs under the actual general supervision of a certified or licensed teacher, in accordance with this decision.
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