Decision No. 15,799
* Subsequent History: Matter of Bruning v New York State Educ. Dept.; Supreme Court, Albany County; Judgment dismissed petition to review; March 24, 2009. *
Appeal of GERT WERNER BRUNING and DIANE COBURN-BRUNING, on behalf of their children TROY and CLAY, from action of the Board of Education of the Tarrytown Union Free School District regarding the distribution of textbooks.
Decision No. 15,799
(July 30, 2008)
Leonard A. Sclafani, P.C., attorneys for petitioners, Leonard A. Sclafani, Esq., of counsel
Keane & Beane, P.C., attorneys for respondent, Lawrence Praga, Esq., of counsel
MILLS, Commissioner.--Petitioners challenge actions of the Board of Education of the Tarrytown Union Free School District (“respondent”) pertaining to the loan of textbooks. The appeal must be sustained in part.
Petitioners and their children reside in respondent’s district. Petitioners’ children attend Hackley School (“Hackley”), a nonpublic school. By two letters dated August 22, 2007, petitioners requested the loan of textbooks for their children required by Hackley for the 2007-2008 school year.
By letter dated September 4, 2007, respondent’s business manager informed petitioners that their request was denied because procedures for requesting textbooks, which required textbook loan applications to be made by school administrators, had not been followed.
Petitioners purchased the books required by Hackley. This appeal ensued.
Petitioners allege that respondent’s procedures for and method of distributing textbooks to nonpublic school students is not equitable and violates Education Law §701(4) and the New York State Textbook Loan Program. Petitioners request that I declare unlawful respondent’s textbook loan policies for nonpublic school students and direct it to adopt new policies and procedures in compliance with the law. Petitioners also request that I direct respondent to notify families of nonpublic school students of their rights under such policies. Finally, petitioners request that I direct respondent to reimburse them and families of other nonpublic school students for textbooks purchased during the 2007-2008 school year.
Respondent contends that its method of distributing textbooks is lawful and that petitioners have not proven their case and are not entitled to the relief requested. Respondent contends that it is not required, by law, to supply supplementary textbooks, novels, or other works of fiction and that it is not required to reimburse petitioners for books which they purchased. Respondent contends that petitioners have demanded relief on behalf of individuals not parties to the appeal and are guilty of latches.
Initially, I must address petitioner’s reply and respondent’s memorandum of law. 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 to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.
A memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of a Student Suspected of Having a Disability, 45 Ed Dept Rep 483, Decision No. 15,388; Application of Jo, 45 id. 374. Decision No. 15,354; Appeal of a Student with a Disability, 45 id. 327, Decision No. 15,337). Therefore, while I have reviewed respondent’s memorandum of law, I have not considered those portions containing belated assertions or exhibits that are not part of the pleadings.
Section 701 of the Education Law and §21.2 of the Commissioner’s regulations governs textbook purchases and loans. By statute, boards of education are required to purchase and to loan textbooks to all resident children enrolled in public or nonpublic schools (Education Law §701). However, no school district was required to purchase textbooks in 2007-2008 in excess of the amount equal to $58.25 multiplied by the number of resident pupils (i.e. the amount of State textbook aid to which the district is entitled) (see New York State Textbook Loan Program: Recommended Procedures for Textbook Purchases Loans and Inventory Control, January 2003). Nevertheless, all textbooks, whether previously owned or newly acquired by a district must be loaned to resident children enrolled in public and nonpublic schools on an equitable basis (Education Law §701; 8 NYCRR §21.2[c]; Appeal of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528).
Here, neither petitioners nor respondent have provided a written textbook loan policy attributable to respondent. Therefore, respondent’s “policy” must be gleaned from its practices and procedures. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329). Petitioners have provided evidence from which conclusions can be drawn as to respondent’s textbook loan policy and procedures: respondent’s instructions to schools for the 2007-2008 school year and correspondence between petitioners and respondent. In addition, respondent submitted an affidavit from its superintendent.
First, respondent’s September 4, 2007 correspondence to petitioners denying their request for textbooks states, “We try to allocate these funds as fairly as possible to all resident children no matter what school they attend. This allocation usually comes to approximately $60 per student.” The attachment to this letter, respondent’s instructions to schools for the 2007-2008 school year, states, “As you know, the State of New York reimburses this school district up to an amount of $57.30 per pupil . . . . Please comply with this limitation.”
Respondent’s superintendent does not admit or deny placing a per student dollar limitation on textbooks or a ceiling on expenditures from each building but avers that the district budgets a greater portion of its textbook budget for nonpublic school students than for public school students. However, a review of the documents noted above indicates that respondent has, in effect, placed such limitations on the loan of textbooks to Hackley students.
A board does not discharge its textbook loan responsibilities merely by providing a set dollar amount worth of textbooks to each student (Appeal of Caunitz, et al., 30 Ed Dept Rep 396, Decision No. 12,510; Appeal of Gross, 25 id. 382, Decision No. 11,618). Instead, a board of education must determine its need for new textbooks each year by compiling all requests for textbooks in all buildings and comparing such requests with existing inventory (Appeal of Gallagher, 47 Ed Dept Rep 69, Decision No. 15,629; Appeal of Kelly, 35 id. 235, Decision No. 13,528; Appeal of Gross, 25 id. 382, Decision No. 11,618). If the existing supply of textbooks owned by the district is insufficient to meet the needs of resident pupils in public and nonpublic schools, the board must purchase additional textbooks, but it is not required to expend more than the amount of textbook aid available for that purpose (for 2007-2008, $58.25 multiplied by the resident public and nonpublic enrollment). A board of education may appropriate an amount in excess of the required minimum for purchase of textbooks with the approval of voters in those districts in which the budget by law must be approved by voters (Appeal of Gallagher, 47 Ed Dept Rep 69, Decision No. 15,629; Appeal of Kelly, 35 id. 235, Decision No. 13,528). In the event that an appropriation for purchase of textbooks does not permit the purchase of all books required, the board must adopt a procedure that will ensure the equitable distribution of textbooks available (Appeal of Gallagher, 47 Ed Dept Rep 69, Decision No. 15,629; Appeal of Kelly, 35 id. 235, Decision No. 13,528; Appeal of Gross, 25 id. 382, Decision No. 11,618). A board must determine which categories of textbooks can be loaned free to both public and nonpublic pupils within the resources available. State Education Department (“Department”) Guidelines cite decisions not to provide consumable workbooks in certain subject areas or to pupils in certain grade levels as examples of equitable treatment (New York State Textbook Loan Program: Recommended Procedures for Textbook Purchases, Loans and Inventory Control, January 2003).
To the extent that respondent’s textbook loan policy establishes, for Hackley or other nonpublic schools, an absolute ceiling of its expenditures beyond which it will not lend new textbooks, and/or specifies a per-student dollar limit on textbook loans, it is inconsistent with the Education Law, Commissioner’s regulations and Department guidelines. Therefore, I direct the district to review its policies, procedures and practices, and revise them as necessary, to bring them into compliance with the law as directed herein.
Petitioners also allege that respondent’s textbook loan policy violates the Education Law in that it requires that textbook loan requests come from nonpublic schools rather than from parents of pupils attending nonpublic schools.
Section 21.2(b) of the Commissioner’s regulations provides, in pertinent part: “Textbooks shall be loaned upon the individual written request of nonpublic school students . . . . Such requests may be presented directly to the lending district or, with the consent of the lending district, to an appropriate official of the nonpublic school which the student attends. . . .” Furthermore, the Department sets forth recommended procedures for textbook purchases, loans and inventory control that are consistent with the Education Law (see New York State Textbook Loan Program: Recommended Procedures for Textbook Purchases, Loans and Inventory Control, January 2003). The appendix, containing questions and answers to these procedures, provides:
11. Q. What is the obligation of the parents of pupils attending nonpublic schools?
A. Parents of pupils attending nonpublic schools must submit to the board of education of their district of residence a written request for the textbooks needed by their children during the coming year. This request should include the information necessary to provide the books such as title, author, publisher, and copyright date. The request may be submitted through the nonpublic school.
12. Q. What is the obligation of a nonpublic school administrator with regard to the loan of textbooks?
A. A nonpublic school administrator should provide parents with the information necessary to request textbooks of their boards of education. Such information should include title, author, publisher, copyright date, and any other information necessary for processing the request.
Thus, the Commissioner’s regulations and the Department’s recommended procedures clearly contemplate that parents of pupils attending nonpublic schools may submit textbook requests to boards of education. To the extent that respondent’s policy requires that requests for textbooks come from nonpublic schools, I find that it is inconsistent with Department policy and regulation. Therefore, I direct respondent to review its policies, procedures and practices in this regard and revise them as necessary to bring them into compliance with the regulations and policies discussed herein.
For further relief, petitioners request reimbursement for them and other families of nonpublic school students for textbooks they have purchased. With respect to this request, I must dismiss petitioners’ claim. The statute provides for loan of textbooks owned by public school districts, not for reimbursement for textbooks purchased by individuals. Therefore it is not permissible for respondent to reimburse petitioners for textbooks they purchased for their children. (Appeal of Gallagher, 47 Ed Dept Rep 69, Decision No. 15,629; Appeal of Kelly, 35 id. 235, Decision No. 13,528; Matter of Williams, et al., 7 id. 82, Decision No. 7831).
In light of this determination I need not address the parties’ remaining contentions.
THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.
IT IS ORDERED that the Tarrytown Union Free School District hereafter comply with the provisions of Education Law §701 and §21.2 of the Commissioner’s regulations.
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