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Decision No. 15,667

Appeal of WILLIAM D. MUNCH from action of the Board of Education of the Penfield Central School District regarding the denial of voter propositions.

Decision No. 15,667

(October 9, 2007)

Harris Beach PLLC, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal by the Board of Education of the Penfield Central School District (“respondent”) to place two propositions before the voters at the district’s May 15, 2007 annual meeting.  The appeal must be dismissed.

In January 2005, petitioner founded “Parents Concerned with Penfield’s Math Programs” (“PCPMP”) because of parental concerns about the mathematics programs in the district.  At a meeting in April 2005, petitioner presented to respondent a petition signed by hundreds of voters requesting the option to use a different mathematics program.  By letter dated June 25, 2005, respondent denied this request.

On April 16, 2007, petitioner submitted two petitions to the district clerk, with the requisite number of signatures, requesting that respondent present two propositions on the ballot at the district’s May 15, 2007 annual election.  The first proposition (“Proposition A”) required respondent to replace the current mathematics program with the program choice PCPMP had requested in April 2005.  Specifically, Proposition A provided:

Whereas experimental mathematics programs known as Investigation, Connected Mathematics, and Core-Plus Mathematics have been implemented in the Penfield Central School District without proper safeguards to protect our children, and these programs have proven to be ineffective as evidenced by the poor performance of our children on state standardized mathematics tests (41% of Penfield’s 7th and 8th graders failed the March 2006 tests), these programs shall be replaced prior to the start of the 2007/2008 school year by textbook-based mathematics programs that shall be taught using direct instructional methods.

The second proposition (“Proposition B”) mandated that respondent adopt a policy regarding the implementation of future innovative and experimental programs, and that the policy contain four specific requirements, including explicit written consent of a participating student’s parent or guardian.

At its April 17, 2007 meeting, respondent rejected both propositions by a vote of 5 to 2.  By letter dated April 18, 2007, respondent’s president stated, “Both propositions are for items which are not within the power of voters to decide and are therefore not valid.”  This appeal ensued.

Petitioner contends that respondent never properly approved the mathematics program that Proposition A seeks to replace.  He contends, therefore, that respondent has abdicated its responsibility for curriculum to the administration and that the program was instituted illegally and should be removed from the curriculum.  He also asserts that respondent failed to approve the textbooks used for the program.  He further alleges that the superintendent has a conflict of interest and that her employment as an adjunct faculty member is prohibited by the Education Law.  Petitioner seeks a determination that the voter propositions are valid and an order requiring respondent to call a special meeting to vote on the propositions.

Respondent contends that the appeal must be dismissed for lack of standing.  Respondent asserts that it properly rejected the voter petitions because they involve matters within respondent’s discretion.  Respondent maintains that it has authority over curriculum matters, that it properly approved and purchased district textbooks and is not required to approve any particular “math program.”  Respondent also denies that the superintendent has any conflict of interest or that her employment as an adjunct professor is prohibited.

To the extent petitioner raises any allegations pertaining to the superintendent, the appeal must be dismissed against the superintendent for failure to join her as a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  The superintendent was neither named nor served in this appeal.

Petitioner brings this appeal on behalf of PCPMP, which appears to be an unincorporated association of parents and residents of the district.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Russo, Jr., 46 Ed Dept Rep 266, Decision No. 15,504; Application of Simmons, 43 id. 7, Decision No. 14,899; Appeal of D’Oronzio and D’Agostino, 41 id. 457, Decision No. 14,745).  Accordingly, the appeal must be dismissed for lack of standing.

The appeal must also be dismissed on the merits.  A board of education has broad authority to prescribe the course of study in the schools of the district (Education Law §1709[3]; Appeal of McLoughlin and Carusi, 44 Ed Dept Rep 336, Decision No. 15,191; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311; Appeal of Smith, Jr., 34 id. 346, Decision No. 13,335).  Indeed, because the Legislature has given the board this authority, it is inappropriate to put a proposition before the voters that would override or limit the board’s authority, as petitioner sought to do here (Appeal of Lombardo, 38 Ed Dept Rep 676, Decision No. 14,115).  In addition, Education Law §§701(1) and 1709(4) authorize a board of education to designate the textbooks to be used in the schools under its charge.  The parents of a pupil cannot compel a board to use a particular textbook or to discontinue the use of a particular textbook (Appeal of Smith, Jr., 34 Ed Dept Rep 346, Decision No. 13,335; Appeal of Mitchell, 13 id. 228, Decision No. 8,802).

The United States 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, Jr., 34 Ed Dept Rep 346, Decision No. 13,335).  I can make no such finding on the record before me.

In light of this disposition, I need not consider petitioner’s remaining arguments.

THE APPEAL IS DISMISSED.

END OF FILE