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Decision No. 14,219

Appeal of ALFRED A. LEASE, JR., and BETTY LEASE, on behalf of VICKY, KIMBERLY and CHRISTOPHER LEASE, from action of the Board of Education of the Valley Central School District regarding a required summer reading program.

Decision No. 14,219

(October 12, 1999)

Donoghue, Thomas, Auslander & Drohan, Esqs., attorneys for respondent, Natalie J. Marshall, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the implementation by the Board of Education of the Valley Central School District ("respondent") of a required summer reading program. The appeal must be sustained in part.

Petitioners are the parents of three children who attended respondent’s fifth, seventh, and eighth grades during the 1997-98 school year. In June 1998, respondent announced the implementation of a new summer reading requirement for all students entering seventh, eighth and ninth grades. The program required all students entering seventh and eighth grades to read and report on at least one book from a distributed list of 95 titles. As of June 1998, the Fall enrollment for the seventh and eighth grades was 372 and 383, respectively. Under the program, a seventh or eighth grade student in a special English class was required to complete one "project", students in Regents level English were required to complete one book report, and students in advanced English were required to complete two book reports over the summer.

All students entering ninth grade also were required to complete a summer reading assignment. Regents ninth graders were required to read at least one book from a list of eight titles, and to complete one writing assignment. Students entering advanced ninth grade English were required to read The Odyssey and two additional books from the same reading list. The advanced students were required to complete writing assignments for these three books, and were to be tested on The Odyssey upon their return to school in the Fall. Respondent reported that as of June 1998, 104 students were scheduled to take advanced ninth grade English ("9 AD") and 191 students were scheduled to take ninth grade Regents English ("9 R").

Respondent also issued grading policies for the summer reading program. The middle school policy required 7th and 8th grade students to hand in their writing assignments by Friday of the first week of school. The summer reading assignment accounted for 10% of the first quarter class average. For each two weeks the assignment was overdue an additional 10 point deduction would be taken, up to a maximum deduction of 40 points. The high school policy was essentially the same except the summer assignment accounted for 20% of the first quarter grade and any student who failed to complete a summer writing assignment would receive a zero.

The summer assignments were distributed to students in June 1998. On June 25, 1998 petitioners wrote the first of a series of letters to respondent’s middle school principal expressing their concerns about the summer reading program. Eventually, petitioners were directed to address their objections to respondent. By letters dated August 7, 1998 and September 9, 1998, petitioners demanded a formal written response to their complaints. Not receiving any response, petitioners commenced this appeal on September 29, 1998, requesting the termination of respondent's summer reading program, monetary reimbursement for the purchase of books, and discipline against school administrators.

Petitioners contend that respondent’s summer reading program is both illegal and ill-conceived. They assert that respondent has failed to provide or otherwise make available a sufficient number of books. Petitioners further maintain that it is unreasonable for respondent to require children to perform the level of work necessitated by the summer reading assignments, make the assignments due the first week of school, count the assignments as either 10 or 20% of the first quarter grade, and provide no teaching assistance over the summer. Finally, petitioners allege that their oldest daughter, who qualified for English 9 AD, was forced to withdraw from the class. They maintain that the late notice of the assignments, the unavailability of the books, and the conflict with summer plans already in place by June 1998, prevented her from being able to complete the summer assignments by the first week of school.

Respondent raises a number of procedural defenses. First, it alleges that the petition is untimely. Specifically respondent asserts that petitioners first knew of its policy in June 1998, yet waited until September 29, 1998, to commence an appeal. Additionally, respondent claims petitioners failed to join the principal and superintendent as necessary parties. Respondent also claims the subject addressed in the petition is moot since petitioners waited until the summer assignments were past due to commence this appeal. Finally, respondent contends petitioners and their children have suffered no injury.

With regard to the merits, respondent maintains its policy is within its legal authority and is consistent with the policy of the New York State Board of Regents.

Initially, I will address respondent’s procedural defenses. An appeal to the Commissioner of Education must be initiated within 30 days of the action or decision complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent claims that the summer program complained of was instituted in June 1998, yet this appeal was not filed until September 1998, more than 30 days later. However, the record indicates that petitioners began writing letters to respondent’s middle school principal as soon as they learned of the program. The correspondence continued over the summer, with petitioners asking respondent to meet with them to discuss the program. By letter dated August 24, 1998 respondent's superintendent agreed to meet with petitioners. Upon the cancellation of this meeting by the superintendent, petitioners notified respondent by letter dated September 9, 1998 that they were requesting a formal written response to their request to terminate the program. If no response was received within five days they would consider filing an appeal. Receiving no response from respondent, petitioners commenced this appeal on September 29, 1998. It appears from the record that petitioners attempted to resolve their concerns at the local level, but were unsuccessful in obtaining a definitive response from respondent. There is nothing in the record to indicate that respondent ever gave petitioners an official determination concerning their request to terminate the program. Thus, I will not dismiss petitioners' appeal as untimely (See, Appeal of Price, 38 Ed Dept Rep 745, Decision No. 14,132).

Respondent also alleges that the appeal should be dismissed for failure to join necessary parties, since the petition seeks disciplinary action against "school officials, employees or members." Insofar as petitioners seek disciplinary action against any individuals, the appeal must be dismissed for failure to join them as necessary parties (Appeal of a Student with a Disability, 38 Ed Dept Rep 378, Decision No. 14,059; Appeal of Andela, 38 id. 249, Decision No. 14,026).

Respondent also claims this appeal is moot as the summer reading program is over. Since it appears the program is an ongoing policy and the summer assignments counted towards the students' grades, I decline to dismiss the appeal as moot. Additionally, respondent alleges that petitioners have not been harmed by the policy. However, petitioners maintain they were required to buy the summer reading books, and their daughter was unable to enroll in English 9 AD due to the policy. Thus, I find petitioners have been sufficiently aggrieved.

With respect to the merits, boards of education have broad authority to prescribe the course of study in the schools of the district (Education Law ""1709[3], 1804[1]; Appeal of Smith, 34 Ed Dept Rep 346, Decision No. 13,335; Appeal of Keen, 32 id. 299, Decision No. 12,836; Appeal of DeGroff, et al., 31 id. 332, Decision No. 12,657). The Supreme Court has confirmed that school authorities enjoy broad discretion in regulating matters of curriculum (Bd. of Educ., Island Trees U.F.S.D. No. 26 v. Pico, 457 US 853, 869). I will not substitute my judgment for that of a board on curriculum issues absent evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Appeal of Smith, supra; Appeal of Keen, supra; Appeal of DeGroff, et al., supra).

Upon review, I find that respondent's summer reading program is unreasonable due to the lack of guidance or instruction concerning the mandatory written assignments which were reflected in the students' first quarter grades. The written assignments were due the first Friday of the new school year, and accounted for 10 to 20 percent of the first quarter grade, yet no teachers were available to answer students' questions or to provide assistance over the summer. For instance, students in English 9 AD were expected to write a paper on The Odyssey, a lengthy and difficult work, without the benefit of any instruction or any prior knowledge of the teachers' expectations. While I strongly support and encourage students to read during the summer, I find the requirement of written assignments without the benefit of instruction to be unreasonable. Class grades should reflect work done under a teacher's direction and supervision.

Respondent argues that Education Law "2(15) defines the school year as commencing on the first day of July in each year and ending on June 30 of the next year. However, court decisions have recognized that the normal instructional year extends from September through June (see Schneps v. Nyquist, 58 AD2d 151, appeal denied, 42 NY2d 808). Thus, I cannot conclude that the mandatory assignments fall within the definition of the school year.

In addition, it is not clear whether an adequate number of books were available for student use. Petitioners claim that the books their daughter was required to read for English 9 AD were subject to long waiting periods at two local public libraries. Respondent claims that the local public libraries were notified of the reading lists, but respondent does not indicate how many copies of each book were available. Given that the ninth grade reading list for 9 R and 9 AD consisted of only eight books, and 295 students were competing to read at least two of those books, it is questionable whether the local libraries could meet this demand. Of even greater concern is the fact that all 104 students enrolled in English 9 AD were expected to read and complete a written assignment on The Odyssey. It is likewise unlikely that the local libraries could meet this demand.

The seventh and eighth grade reading lists were much more extensive than the ninth grade list. There were 755 seventh and eighth grade students competing to read one of the 95 listed books. Again, there is some question as to whether sufficient copies of these books were available to students. If books are to be used as part of a mandatory assignment, respondent must ensure that they are reasonably available to all students.

Finally, to the extent petitioners seek reimbursement for the money they expended to buy books, I lack the authority to order the requested relief (See, Appeal of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528).

In sum, for the reasons stated above, respondent's summer reading program -- as presently constituted -- is unreasonable. Nothing in this decision, however, should be construed as discouraging either summer reading or districts’ establishment of proper summer reading programs. To the contrary, the State Education Department and the New York State Board of Regents support and encourage all children to read over the summer. This policy is consistent with the Department's English curriculum guide which requires all children to read a minimum of 25 books a year. A board of education may distribute suggested summer reading lists, permit extra credit assignments over the summer, or require students to read books over the summer in preparation for discussion during the first week of class. It is my hope that respondent will continue to promote summer reading within the parameters outlined in this decision.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent’s current summer reading program be discontinued, and

IT IS FURTHER ORDERED that respondent modify its summer reading program consistent with this decision.

END OF FILE