Appeal of ANDR� and JENNIFER CIOTTI, on behalf of their daughters STEPHANIE and CHELSEA, from action of the Board of Education of the Whitesboro Central School District regarding a required summer reading program.

Decision No. 15,162

(January 25, 2005)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, David W. Larrison, Esq., of counsel

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

Petitioners� daughters, Jennifer and Chelsea, attend respondent's schools and were required to participate in respondent's 2004 summer reading program. In a letter dated June 1, 2004, but sent some time later in June, respondent's English Department chairperson ("chairperson") advised parents that all students in grades six through twelve would be required to read one book over the summer, and that students should purchase the books so they could write in them. The chairperson also advised parents that a limited number of books would be available to borrow from the district for students with financial hardship. At the end of the school year, students brought home a packet that informed students of the title of the book that they would have to read and provided related assignments.

In June 2004, petitioners advised the chairperson and respondent's superintendent of their objections to the program. On July 6, 2004, petitioner Andr� Ciotti addressed respondent board, stated his objections and requested that the summer reading program be rescinded. On July 13, 2004, the superintendent responded to petitioner on behalf of respondent, indicating that the summer reading program would continue. This appeal ensued. Petitioners� request for interim relief was denied on August 20, 2004.

Respondent modified its summer reading program after this proceeding commenced. In a letter to parents dated August 1, 2004, the chairperson advised parents that teacher support would be available to students during the summer. Respondent established an e-mail address and telephone numbers to be used by students who wished to address questions to teachers, and teachers were made available on four days in August to work with students at school facilities. In addition, students were advised that they would be given additional time with teacher support to work on their assignments without penalty at the beginning of the new school year, if needed. The letter also stated that the "entire project" would count as one test grade for the quarter.

Petitioners claim that respondent's summer reading program is impermissible because it requires parents to purchase books, does not provide teacher support to students during the summer when assignments must be completed, and intrudes on the authority of parents to determine how their children spend the summer. Petitioners request the discontinuation of the summer reading program.

Respondent claims that petitioners have not established grounds in fact or in law upon which to conclude that the summer reading program is impermissible. Respondent also claims that the petition should be dismissed as untimely.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless the Commissioner excuses any delay for good cause shown (8 NYCRR �275.16). In a letter dated July 13, 2004 to petitioners, the superintendent responded on behalf of respondent to petitioners' request to the board that the summer reading program be rescinded, indicating that the program would continue. The petition was served on July 26, 2004, within 30 days of this determination. Therefore, the petition is timely.

A board of education has broad authority to prescribe the course of study in the schools of the district (Education Law ��1709[3], 1804[1]; Appeal of Lahm, 41 Ed Dept Rep 193, Decision No. 14,662; Appeal of Lease, 39 id. 215, Decision No. 14,219; Appeal of Smith, 34 id. 346, Decision No. 13,335). 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 of education on curriculum issues absent evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Appeal of Lahm, supra; Appeal of Lease, supra; Appeal of Smith, supra).

I have in the past reviewed summer reading programs and found them to be permissible when properly structured and administered (see, Appeal of Lahm, supra). However, a summer reading program is unreasonable and impermissible when it requires students to perform mandatory written assignments for a grade without the benefit of a teacher's direction and supervision and does not ensure that books that are being used as part of a mandatory assignment are reasonably available to all students (Appeal of Lease, supra).

I find that respondent's summer reading program, as modified, provided students with adequate teacher direction and supervision, while students were performing mandatory written assignments for a grade. During the summer, students were permitted to address questions to teachers through telephone calls and e-mails, and four in-person sessions were scheduled for students who needed assistance. In addition, students were permitted to complete the written assignments without penalty upon returning to school in September, while under the direction and supervision of the teacher.

However, I find that respondent did not ensure that books in the summer reading program were reasonably available in all grades. The required texts in a summer reading program must be reasonably available to students (Appeal of Lease, supra). To accomplish this, a district may, for example, provide the books to the students or establish a large enough list of titles to reasonably ensure that books on the list are available at a public library for all students (Appeal of Lahm, supra). A district may not require the purchase of books for a summer reading program (see, Appeal of Lease, supra).

In this case, the district's June 1, 2004 letter to parents said "Students should purchase the books so they can write in them." It also stated that only a limited number of books were available to students in financial need. Grades seven through ten students were required to read one book, specified for each grade by the district. Grade twelve students were required to choose one book from among ten titles specified by the district. Petitioners state that there are approximately three hundred students in each grade, a fact respondent does not dispute. Given these numbers, it is unlikely that a sufficient number of books were available at local libraries or available for loan at the district for grades seven through ten and grade twelve. Therefore, I find the summer reading program for grades seven, eight, nine, ten, and twelve to be unreasonable due to respondent's failure to ensure the availability of an adequate number of books to all students.

The summer reading program for grades six and eleven is a different matter. Respondent's directions for grade six students indicate that respondent provided the assigned book to each student. It is not clear from the record whether respondent provided the assigned book to grade eleven students. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which they seek relief (Appeal of Pope, 40 Ed Dept Rep 473, Decision No. 14,530; Appeal of Logan, 38 id. 694, Decision No. 14,120; Appeal of Catherine B., 37 id. 34, Decision No. 13,797). Petitioners have failed to establish that respondent did not provide the required reading material to grade six and eleven students. Therefore, I cannot conclude that respondent failed to ensure an adequate supply of books for grades six and eleven.

Although I find respondent's summer reading program to be unreasonable in part, I find no basis to invalidate student grades earned on the summer reading assignments. At this point in the school year, students have read the books, completed the assignments and received grades. It would not serve any educational purpose to invalidate the grades that have already been earned, especially where petitioners have failed to show that any student was unable to complete the assignment because he or she lacked a book.

However, respondent's summer reading program is ongoing. Therefore, respondent must modify its program to ensure that in the future required texts are reasonably available to students.

Notwithstanding the above, a summer reading program, properly implemented helps sharpen the reading, language and writing skills that often deteriorate over the long summer vacation. The State Education Department recommends that students read at least 25 books each year. Requiring reading over the summer is a positive step toward this goal.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

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

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