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Decision No. 15,889

Appeal of LINDA and JEFFREY HOERTER, on behalf of their son CHRISTOPHER, from action of the Board of Education of the Arlington Central School District regarding distribution of textbooks.

Decision No. 15,889

(March 6, 2009)

Kuntz, Spagnuolo & Murphy, P.C., attorneys for respondent, Vanessa M. Gronbach, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge actions of the Board of Education of the Arlington Central School District (“respondent”) pertaining to the loan of textbooks.  The appeal must be sustained.

Petitioners and their son reside in respondent’s district.  Petitioners’ son attends Trinity-Pawling School (“Trinity”), a nonpublic school.  By letter dated July 17, 2008, petitioners requested the loan of textbooks for their son required by Trinity for the 2008-2009 school year.

By letter dated August 4, 2008, respondent’s assistant superintendent for business informed petitioners that their request was denied because it exceeded the per pupil allocation of $70 and the district’s textbook inventory did not contain the textbooks petitioners requested.

Petitioners purchased the books required by Trinity.  This appeal ensued.

Petitioners allege that respondents procedures for distributing textbooks to nonpublic school students violates Education Law §701(4) and §21.2 of the Commissioner’s regulations.  Petitioners request that I reverse respondent’s determination and order respondent to comply with Education Law.

Respondent alleges that its method for distributing textbooks to nonpublic students is lawful and complies with the New York State Textbook Loan Program.  Respondent alleges that petitioners have not met their burden of establishing a right to the relief requested.  Respondent contends that Trinity does not participate in the Textbook Loan Program, that it places the responsibility for purchasing textbooks on parents and asked the district to purchase textbooks or reimburse parents.  Finally, respondent alleges that it is not required to reimburse petitioners for the textbooks they purchased.

Respondent objects to petitioners’ reply because it is not verified.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  Petitioners’ reply was not verified in violation of §275.5.  Therefore, I have not considered petitioners’ reply (Appeal of Jacoby, 47 Ed Dept Rep 321, Decision No. 15,710, Appeal of McColgan, et al., 47 id. 132, Decision No. 15,650).

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, 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 does not contain respondent’s textbook loan policy.  Petitioners, however, have provided the August 4, 2008 correspondence from which conclusions can be drawn about respondent’s textbook loan policies and procedures.  The August 4, 2008 correspondence cites the State Education Department’s recommended procedures for textbook purchases as follows:

This obligation of the Board of Education to provide textbooks for resident pupils, both public and non-public, is limited only by: 1) The existing inventory of textbooks available to the public school district to loan; and 2) The greater of the total amount appropriated by the Board of Education for the purchase of additional textbooks or an amount equal to the State Textbook Aid per pupil multiplied by the number of resident pupils attending public and non-public schools.

The assistant superintendent for business then concludes:

The second limit appears to indicate that the school district is obligated to provide at least an amount equal to the textbook aid ($58.25) or the amount appropriated for the purchase of textbooks, if greater.

I have carefully examined the textbook appropriation included in the 2008-09 budgets for the purchase of public and non-public textbooks.  This appropriation can realistically support an expenditure of $70 per pupil ....  Your request exceeds the allocation of $70.00 per pupil.  Please adjust the request accordingly ....

First, in accordance with Education Law §701, boards of education loan textbooks to resident children.  Nonpublic schools cannot “participate” or opt out of, the textbook loan program.  Furthermore, 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).  A board of education must instead 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.  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 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.  Therefore, I direct the district to review its policies, procedures and practices, and revise them as necessary, to bring them into compliance with law as directed herein.

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

THE APPEAL IS SUSTAINED.

IT IS ORDERED that the Arlington Central School District hereafter comply with the provisions of Education Law §701 and §21.2 of the Commissioner’s regulations.

END OF FILE