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Decision No. 15,235

Appeal of BRIAN P. CURRAN, on behalf of his son BRIAN, from action of the Board of Education of the Carle Place Union Free School District and Dr. Patricia Hansen, Superintendent of Schools, regarding summer assignments.

Decision No. 15,235

(June 9, 2005)

Jaspan Schlesinger Hoffman LLP, Esq., attorneys for respondent, Carol A. Melnick, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Carle Place Union Free School District ("respondent board" or "board") and its superintendent (collectively referred to with the board as "respondents") concerning required summer reading, math and social studies assignments. The appeal must be sustained.

Petitioner's son, Brian, attended seventh grade in respondents' mi ddle school during the 2003-2004 school year. By letter dated June 11, 2004, petitioner was notified that "upcoming" seventh and eighth grade students would be required to participate in a summer assignment involving the presidential election of 2004 (the "Summer Social Studies Assignment" or the "Project").

In accordance with the "Carle Place Middle School/High School Student Handbook," petitioner sequentially contacted the department chairperson, the middle school assistant principal and principal, the assistant superindentent for instruction and personnel and the superintendent of schools to discuss his concerns and express his belief that the Project was unreasonable. Later in June, petitioner's son received two additional summer assignments -- the "Summer Reading Assignment" and the "Summer Math Assignment."

In July 2004, petitioner met with the superintendent to discuss his objection to all three summer assignments. Petitioner suggested that the due date of the Summer Social Studies Assignment be extended until the middle or end of October 2004, and the superintendent agreed to extend the due date to September 20, 2004. Petitioner was under the impression that the extension applied to all eighth grade students. However, the September 20 due date only applied to students who requested an extension.

By letter dated September 7, 2004, petitioner wrote to the president of the board objecting to all three mandatory summer assignments and expressing his desire to discuss the matter at the next board meeting. At its September 13, 2004 meeting, respondent board listened to petitioner's concerns but declined to take any action. This appeal ensued. Petitioner's request for interim relief was denied on October 13, 2004.

Petitioner requests that I find the summer assignments, either individually or collectively, unreasonable and beyond respondents' authority. He asks that students' grades relating to the summer assignments be discounted. Petitioner also requests that I direct respondents to discontinue, modify or make optional the current and future use of summer assignments. Finally, petitioner asks that I censure respondents.

Respondents allege that petitioner fails to state a claim upon which relief may be granted, and maintain that the summer assignments are within respondents' authority and are not arbitrary, capricious and/or unreasonable.

Initially, I must address several procedural matters. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 44 Ed Dept Rep 136, Decision No. 15,124; Appeal of General, 43 id. 146, Decision No. 14,948). Although I have reviewed petitioner's reply and "verified reply to respondents' affidavit in application to application for stay," I have considered only those portions that respond to new material or affirmative defenses set forth in respondents' pleadings.

Pursuant to �276.4 of the Commissioner's regulations, respondents were required to serve their memorandum of law within 30 days after service of the answer. Respondents served their answer on October 18, 2004 and submitted their memorandum of law on November 18, 2004, 31 days later. While the Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR �276.4[a]), there has been no such showing here. Therefore, I have not considered respondents' memorandum of law. In light of this decision, I need not consider the issues raised in petitioner's letter and affidavit in opposition to respondents' memorandum of law.

Similarly, petitioner's memorandum of law was served one day late (i.e. November 12, 2004) and petitioner offered no good cause for the delay or demonstrated the necessity of his memorandum to the determination of the appeal (see 8 NYCRR �276.4[a]). Accordingly, I have not considered petitioner's untimely memorandum of law.

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); Appeal of Ciotti, 44 Ed Dept Rep ___, Decision No. 15,162; Appeal of Lahm, 41 id. 193, Decision No. 14,662; Appeal of Lease, 39 id. 215, Decision No. 14,219). The U.S. 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 judgement 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 Ciotti, supra; Appeal of Lahm, supra; Appeal of Lease, supra).

I have, in the past, reviewed summer reading programs and found them to be permissible when properly structured and administered (seeAppeal of Ciotti, supra; Appeal of Lahm, supra). However, a summer reading program is unreasonable and impermissible when it does not ensure that books that are being used as part of a mandatory assignment are reasonably available to all students and when it requires students to perform mandatory written assignments for a grade without the benefit of a teacher's direction or supervision (Appeal of Ciotti, supra; Appeal of Lease, supra). While I have not previously addressed mandatory summer assignments in subjects such as math and social studies, I find that the principles articulated in the summer reading decisions apply equally to those subjects. Fundamentally, class grades should reflect work done under a teacher's direction and supervision (Appeal of Lease, supra; Appeal of Lahm, supra).

I will address each of respondents' mandatory summer assignments individually, starting with the eighth grade Summer Reading Assignment.

The list for respondents' eighth grade reading assignment contains six books. All non-honors students were required to select one book. All honors students were required to read A Tree Grows in Brooklyn and one other book. Petitioner states that there are 100 eighth grade students in respondents' school district, a fact respondents do not dispute. The record does not reflect how many of these students are honors students. Petitioner alleges difficulty in obtaining one of the required books from a local bookstore, and that after a search at one local library he found only eight copies of A Tree Grows in Brooklyn. However, it appears that petitioner made only a limited effort to locate books from the list, and as in the Appeal of Lahm (supra), petitioner did not provide any evidence that families were compelled to purchase books due to their unavailability at local libraries. Furthermore, respondents allege that books were available at the public library, the school library or any of the 42 participating libraries in the Nassau library system. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (Appeal of Pope, 40 Ed Dept Rep 473, Decision No. 14,530; Appeal of Logan, 38 id. 694, Decision No. 14,120). Petitioner has failed to establish, and therefore I cannot conclude, that respondents failed to ensure that an adequate supply of books was reasonably available.

However, I nevertheless find the Summer Reading Assignment to be unreasonable due to lack of adequate teacher guidance or instruction. The Summer Reading Assignment required students to complete an extensive written "guideline sheet" without the benefit of any instruction. The "guideline sheet" was not graded but was used as an aid for students in completing a graded "open book" reading assessment given on September 9 or 10, 2004. The guideline sheet and the assessment required students to understand and describe complex concepts such as the book's "protagonist." Students had only four or five days after the start of school to review the guideline sheet and prepare for the assessment under the guidance of their teacher. On this record, I find that there was insufficient opportunity for students to obtain teacher guidance and instruction prior to completing the graded written assessment.

I also find the Summer Math Assignment to be unreasonable due to lack of adequate teacher direction and supervision. The mandatory Summer Math Assignment consisted of 100 multiple choice questions in a math workbook. Answers to the questions were provided at the end of the workbook, which also contained a list of websites to consult if students needed assistance in answering the problems. However, there were no teachers available to assist students who did not have access to a computer or who required additional assistance. A test was given on the material on September 10, 2004, only five school days after the start of the school year. Although respondents assert that the material was discussed and reviewed in class prior to the test, there is no explanation in the record of how teachers were able to cover all the concepts addressed in the workbook in such a short time frame. Indeed, this seems improbable. Therefore, on this record, I must overturn respondents' Summer Math Assignment for lack of sufficient instructional support.

Likewise, I find respondents' Summer Social Studies Assignment to be unreasonable due to lack of sufficient teacher direction and supervision concerning the mandatory written assignment which was reflected in the students' grades. The Project accounted for 10 to 20% of each student's first quarter grade, depending upon the number of assignments in that quarter. The Project required all students to read newspapers, watch part of the Republican and Democratic national conventions and interview ten people of voting age. Students were also asked to answer some fundamental questions regarding the presidential candidates, their political parties and the electoral process. Students were required to write a paragraph of five to seven sentences predicting which candidate would win the election and create a portfolio of their work. The written assignments were due on September 10, 2004.

I find the instructional support for this Project to be lacking in several respects. First, only one teacher was accessible by phone until July 2, 2004, a date prior to the national conventions. Second, although two teachers were available to assist students through e-mail all summer, there was no provision made for students who did not have access to e-mail. Third, the Project was due on September 10, 2004, just five days after the start of school and accounted for up to one-fifth of the student's quarterly grade. Given the extensive nature of the project and its relative weight towards students' grades, the amount of teacher direction and supervision was inadequate. On this record, I conclude that respondents' Social Studies Summer Assignment was unreasonable.

Although I find respondents' summer assignments to be unreasonable, I find no basis to invalidate student grades earned on assessments based upon the summer assignments. At this point in the school year, students have completed the assignments and received grades. It will not serve any educational purpose to invalidate the grades that have already been earned, especially where petitioner has failed to show that Brian's, or any other student's grades suffered for lack of instruction.

Finally, I decline to censure respondents as requested by petitioner. The Commissioner of Education has no authority to order disciplinary action against district employees or to censure or reprimand a board of education (Appeal of D.H., 41 Ed Dept Rep 142, Decision No. 14,640; Appeal of Angrisani and Hamilton, 41 id. 6, Decision No. 14,593).

In light of this disposition, I need not address the parties' remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent board modify its summer assignments consistent with this decision.

END OF FILE