Appeal of ANONYMOUS, on behalf of her daughter, from action of the Board of Education of the Trumansburg Central School District relating to the offering of a pregnancy test.

Decision No. 15,868

(February 11, 2009)

N. Jane Murphy, Esq., attorney for petitioner

Coughlin & Gerhart LLP, attorneys for respondent, Carl A. Kieper, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the Trumansburg Central School District ("respondent") regarding the offering of a pregnancy test to her daughter.  The appeal must be dismissed.

In June 2008, a meeting was held to discuss concerns about certain students in the district’s high school, including petitioner’s daughter.  In attendance at this meeting were two teachers and the school psychologist.  During the meeting, the option of making a pregnancy test available to petitioner’s daughter was discussed based on the student’s alleged problems in school and her recent weight gain.  On June 17, 2008, one of the teachers brought a pregnancy test to the school nurse who offered the test to the student.  The student voluntarily took the pregnancy test in the health office.  This appeal ensued.

Petitioner alleges that district staff disregarded her daughter’s humanity, legal rights, tender age and gender.  Petitioner requests a full investigation into the principal’s involvement in the incident and/or the principal’s alleged failure to properly train or supervise staff.  Petitioner also requests an end to unauthorized medical testing. 

Respondent argues that the appeal is moot, that the Commissioner lacks jurisdiction to conduct investigations, and that the Commissioner lacks authority to issue advisory opinions or declaratory rulings.  Respondent also contends that there is no school or board-sanctioned policy condoning the administration of pregnancy tests to students and that the incident is being investigated and remedied.

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Moreover, 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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

The record reveals that this was an isolated incident and that the test was administered as the result of independent actions taken by two teachers, a school psychologist and the school nurse.  Affidavits of those involved, as well as the principal, indicated that the principal had no prior knowledge of the test, that such actions were not sanctioned by the board and that there is no school policy in place offering pregnancy tests to students.  Accordingly, there is no evidence that respondent, its administration or staff are engaged in a practice of pregnancy testing.  I therefore find no basis to issue a cease and desist order.

Finally, petitioner’s request for the Commissioner to investigate the principal’s involvement in this incident must also be dismissed.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Application of V.M., 46 Ed Dept Rep 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).  I further note that the district has hired a consultant to fully investigate the incident.

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

THE APPEAL IS DISMISSED.

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