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Decision No. 15,887

Appeal of MARY MILLER, on behalf of her daughter DEIDRE, from action of the Board of Education of the Harrison Central School District regarding the distribution of textbooks.

Decision No. 15,887

(March 6, 2009)

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

Mills, Commissioner.--Petitioner challenges the actions of the Board of Education of the Harrison Central School District (“respondent”) pertaining to the loan of textbooks.  The appeal must be sustained in part.

Petitioner and her daughter reside in respondent’s district.  Petitioner’s daughter attends Convent of the Sacred Heart School (“Sacred Heart”), a nonpublic school.  On or about August 8, 2008, petitioner requested the loan of 21 textbooks for her daughter required by Sacred Heart for the 2008-2009 school year.

By letter dated September 4, 2008, respondent’s assistant superintendent for business informed petitioner that her request was denied in part because respondent could “only accommodate [her] request for textbooks up to a maximum of $58.25 per student....”  Respondent did agree to provide petitioner with two books she requested which it maintained in its inventory.  This appeal ensued.

Petitioner alleges that respondent’s procedures for distributing textbooks to nonpublic school students is not equitable and violates Education Law §701(4).  Petitioner requests that I direct respondent to modify its policy to comply with the Education Law, to amend its Textbook Order Request Form accordingly and notify parents of nonpublic school students of the requirements of Education Law.

Respondent alleges that the petition was not served in accordance with §275.8 of the Commissioner’s regulations, that the petition fails to state facts sufficient to constitute a basis for relief, that petitioner’s request for the loan of textbooks was untimely, and that there is no legal basis for the relief requested.  Respondent also contends that it cannot comply with the Education Law due to conflicting guidance, law and regulations.

Respondent contends that the petition was not served in accordance with §275.8 of the Commissioner’s regulations because petitioner, herself, served the petition.  The affidavit of service indicates that someone other than petitioner served the petition on respondent.  Therefore, I decline to dismiss the appeal for improper service.

Respondent also contends that the appeal must be dismissed because petitioner’s textbook loan application, submitted on or about August 8, 2008, was untimely.  Section 701(8) of the Education Law provides that Boards of Education may adopt regulations specifying the date by which the request for the purchase and loan of textbooks must be received by the district.  However, such date shall not be earlier than June 1st of the school year prior to that for which such textbooks are being requested.  The record does not contain respondent’s textbook loan policy establishing a deadline for submitting nonpublic school textbook loan requests.  Therefore, I decline to dismiss this appeal on this basis.

Education Law §701 and §21.2 of the Commissioner’s regulations govern textbook purchases and loans.  By statute, boards of education are required to purchase and to loan, upon individual request, textbooks to all resident children enrolled in public or nonpublic schools (Education Law §701[3]).  However, no school district is required to purchase textbooks in 2008-2009 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) (seeNew 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[4]; 8 NYCRR §21.2[c]; Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Kelly, 35 id. 235, Decision No. 13,528).

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 did not contain respondent’s textbook loan policy.  Petitioner has provided, however, the September 4, 2008 response to her request for textbooks, which states, “Unfortunately, the district can only accommodate your request for text books up to a maximum of $58.25 per student for the 2008/09 school year.”  In addition, respondent provided its textbook order request form which states, “S.E.D. Apportionment: $58.25 per student.”

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 Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Gallagher, 47 id. 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 2008-2009, $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 Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Gallagher, 47 id. 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.  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 a per pupil dollar ceiling beyond which it will not purchase and/or lend textbooks, it is inconsistent with Education Law, Commissioner’s regulations and Department guidelines. 

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 respondent review its policies, procedures and practices, and revise them as necessary, to bring them into compliance with the Education Law and Commissioner’s regulations.

END OF FILE