Decision No. 16,429
Appeal of DONNA DOYLE, on behalf of her son JOSEPH BARCI, and the EASTPORT-SOUTH MANOR CENTRAL SCHOOL DISTRICT TEACHERS ASSOCIATION from action of the Board of Education of the Eastport–South Manor Central School District and Mark A. Nocero, as Superintendent, regarding health education.
Decision No. 16429
(November 16, 2012)
Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioners, Mitchell H. Rubinstein, Esq., of counsel
Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel
KING, JR., Commissioner.--Petitioners appeal the decision of the Board of Education of the Eastport-South Manor Central School District (“board” or “respondent”) and superintendent Mark Nocero (“Nocero”) (collectively “respondents”) to eliminate instruction in health education for respondent’s current eighth grade class. The appeal must be sustained.
Petitioner Doyle’s son is currently an eighth grade student in respondent’s district. Commissioner’s regulations require that a half unit of study in health education be provided by the end of grade eight (8 NYCRR §100.4 [c][viii]). Until the 2011-2012 school year, respondent offered the required half unit of health education during seventh grade. However, in February 2011, respondent decided to move the required half unit of study in health education from seventh grade to sixth grade. Because this change was implemented beginning with the 2011-2012 school year, when petitioner Doyle’s son was in seventh grade, his class has not been provided the required health education instruction.
According to respondent, staff at the New York State Education Department (“Department”) advised that “a lapse in the offering of certain curricula to a select grade cohort is unavoidable....” Respondent determined, based in part on this advice, that it would remove the required health education from the seventh-grade curriculum and add it to the sixth-grade curriculum beginning with the 2011-2012 school year. Petitioner Eastport-South Manor Central School District Teachers Association (the “association”) wrote to the board on December 8, 2011 and attended a meeting on or about January 18, 2012 with respondent’s president and the assistant superintendent for curriculum. Petitioners assert at this meeting they learned “for the first time that the Board implemented their proposal and that the current 7th Grade cohort of students [2011-2012 school year] will never receive the required instruction.” This appeal ensued.
Petitioners argue that respondent’s decision was arbitrary and capricious and violates Commissioner’s regulations. Petitioners request that I order respondent to provide the required half unit of study in health education to the current eighth grade class and also request that they be awarded costs. Finally, petitioners object to respondents’ submission of an attorney affirmation that, petitioners assert, is essentially a memorandum of law.
Respondents assert several affirmative defenses, including untimeliness, lack of standing, ripeness and personal jurisdiction over Nocero, and that the appeal seeks an advisory opinion. Respondents also maintain that petitioners have failed to state a claim upon which relief may be granted.
I will first address several procedural issues. Petitioners object to respondents’ submission of an attorney’s affirmation with their answer. Petitioners argue that the affirmation is actually a memorandum of law and should be considered as such. Petitioners further claim that, if the affirmation is accepted as a memorandum of law, respondents should not be permitted to submit another memorandum of law after service of the answer or reply, as permitted by §276.4 of the Commissioner’s regulations. Petitioners offer no authority for precluding respondents from submitting an attorney’s affirmation with their answer that contains legal arguments in addition to their submission of a memorandum of law. While §276.4(a) of the Commissioner’s regulations requires that the memoranda of law consist of the parties’ arguments of law, there is no prohibition in that regulation or elsewhere in Parts 275 or 276 of the Commissioner’s regulations against including legal arguments in an affirmation served with the answer. Consequently, I have considered the legal arguments set forth both in respondents’ attorney’s affirmation as well as its memorandum of law.
Petitioners have also requested permission, pursuant to §276.4 of the Commissioner’s regulations, to submit a reply letter memorandum of law. Petitioners’ request is granted and the reply letter memorandum is accepted for consideration.
To the extent that the appeal is brought against Nocero individually, it must be dismissed for improper service. Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.
Petitioners’ affidavit of service indicates that the petition was served on Nocero’s secretary on March 13, 2012. An affidavit by petitioners’ process server submitted with the reply states that Nocero’s secretary did not indicate that she was not authorized to accept service on the superintendent’s behalf. However, the superintendent avers in his affidavit that he was not personally served and that his secretary has no authority to accept service on his behalf. Petitioners’ reply does not contradict this. Thus, there is no evidence in the record that Nocero was personally served. Insofar as Nocero is named individually as a respondent to the appeal, he has not been properly served, and the appeal is dismissed as against him (Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021; Appeal of Ayers, 48 id. 350, Decision No. 15,883).
Respondents also assert that the association lacks standing to maintain the appeal. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).
The association states that it is the “certified representative of teachers and employees employed by the Respondent...” It claims it has standing because it represents health teachers who teach the required health class and also states that the outcome of the appeal may affect union jobs. Further, the association generally references a health teacher who was excessed in June 2011. However, the association fails to assert that respondent’s actions at issue in this appeal have caused any direct harm to its members. The association did not bring this appeal on behalf of the health teacher who was excessed in June 2011, nor does it claim that he was excessed as a result of the eighth grade class failing to receive the required half unit of study in health education. Similar to the union’s interest in Appeal of Transport Workers Union Local 100 (50 Ed Dept Rep, Decision No. 16,126), the association cannot assert standing simply because some of its members may be affected by respondent’s alleged actions in the future. Although I find that the association does not have standing to maintain the appeal, I note that petitioner Doyle is the parent of a student in eighth grade who is directly affected by the board’s determination regarding the provision of health education. Therefore, she does have standing and the appeal will not be dismissed on that ground.
With respect to timeliness, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Respondent states that its decision to move the required half unit of study in health education from seventh grade to sixth grade was made at a public meeting of the board in February 2011. Additionally, it asserts that petitioner Doyle knew as of September 7, 2011, the first day of school that her son would not be receiving health education because it was not on his schedule. This appeal was commenced on March 13, 2012. Even if the 30 days was calculated from the later date, petitioner Doyle commenced the appeal more than six months after the first day of school for the 2011-2012 school year. However, petitioner claims that the continuing wrong doctrine applies and, therefore, the appeal should not be considered untimely.
The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901). The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]). Section 100.4(c)(1)(viii) of the Commissioner’s regulations specifically requires boards of education to provide students with a half unit of study in health education, which is part of the State intermediate learning standards to be achieved by all public school students by the end of eighth grade. The record indicates that respondent did not provide health education to the then–seventh grade class during the 2011-2012 school year and there is no evidence in the record that respondent has committed to providing such instruction to students in that class in the 2012-2013 school year. Thus, I find that respondent’s continuing failure to provide health education to this eighth grade cohort is inherently unlawful and constitutes a continuing wrong subject to complaint at any time (seeAppeal of Boyd, 51 Ed Dept Rep, Decision No. 16,364).
In complete opposition to its argument that the appeal is untimely, respondent also argues that the appeal is premature because petitioner’s son has not completed the eighth grade and, therefore, has not yet been denied health education. The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of B.R. and M.R., 48 Ed Dept Rep 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752). As noted above, I find respondent’s continuing failure to provide its current eighth grade class with health education to be an ongoing wrong. Moreover, despite respondent’s claim of “prematurity,” the record does not support a finding that respondent intends to provide the current eighth grade class with health instruction and respondent has gone so far as to rely on “advice” purportedly given by Department staff in support of its decision. In this circumstance, it is disingenuous for respondent to now argue that petitioner’s son is required to wait until he completes eighth grade and miss the required instruction before filing an appeal. Because the record indicates that respondent does not intend to provide the current eighth grade class the required health education, the appeal is ripe and, therefore, justiciable.
Finally, I will address one remaining procedural issue, petitioners’ request for costs. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Appeal of S.B., 48 id. 332, Decision No. 15,875). Accordingly, the request for costs must be dismissed.
Turning to the merits, Commissioner’s regulation §100.4(c) provides, in pertinent part that:
- Except as otherwise provided herein, all students shall be provided instruction designed to enable them to achieve, by the end of grade eight, State intermediate learning standards through...(viii) health education, one half unit of study, as required by section 135.3(c) of this Title...
(7) The half unit of study requirement for health education specified in subparagraph (1)(viii) of this subdivision may be provided in grade six...
Further, Commissioner’s regulation §135.3(c)(1) requires:
The secondary school curriculum shall include health education as a constant for all pupils. In addition to continued health guidance in the junior high school grades, provision shall also be made for a separate one-half year course... Heath education shall be required for all pupils in the junior and senior high school grades and shall be taught by teachers holding a certificate to teach health.
Pursuant to Education Law §1709(3) and 1804(1), a board of education has broad authority to prescribe the course of study by which students shall be graded and classified and to regulate the admission of students and their transfer from one class or department to another as their scholarship warrants. The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of C.C., 49 Ed Dept Rep 110, Decision No. 15,972; Appeal of Gergely, 47 id. 423, Decision No. 15,742; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500). The issue here is whether respondent’s failure to provide the required half unit of health education for its current eighth grade class constitutes an illegal, arbitrary or capricious decision. I find that it does. The Commissioner’s regulations pertaining to health education clearly do not authorize a board of education to prescribe a course of study omitting this required instruction for some students (8 NYCRR §§100.4 [c] and 135.3 [c]). While it is permissible for respondent to decide to provide the required half unit of health education in sixth grade rather than in seventh or eighth grade, its determination to commence the change in the 2011-2012 school year and omit the required instruction for the seventh grade class that year - the current eighth grade class – was contrary to law and regulation.
Additionally, respondent provides no explanation as to why it determined to omit the instruction for that class, rather than provide it for both sixth and seventh grade students during a “phase in” year or provide it in eighth grade. Respondent asserts that it relied on a telephone conversation with an unnamed employee of the Department who allegedly agreed “that a lapse in the offering of certain curricula to a select grade cohort is unavoidable where, as here, a proposal is made to implement that curricula at a lower grade level.” This argument is unpersuasive. I note that Nocero’s affidavit states that his assistant superintendent for curriculum and instruction, who did not submit an affidavit, spoke with an employee from the Department’s Office of Student Support Services. No other documentation was submitted evidencing this alleged conversation. In contrast, petitioners submit an email exchange between an excessed health education teacher and an employee of the Department’s Office of Student Support Services which, contrary to the alleged information given to respondent, referenced the regulations cited above and stated that there was no waiver of the health education requirement. In any event, even if I accept respondents’ assertion that they relied on a conversation with Department staff, they are not authorized to decide to omit a required course of instruction as they have in this case. Respondents were obligated by §§100.4(c) and 135.3(c) to provide a half unit of study in health to all students by the end of grade eight. To the extent that my determination is inconsistent with any advice allegedly provided by Department staff, I note that I am not bound by such advice in an appeal before me (seee.g.Appeal of the Board of Education of the Greenport Union Free School District, et al., 50 Ed Dept Rep, Decision No. 16,251; Appeal of Larry B., 37 id. 632, Decision No. 13,944), and I am constrained to follow the plain language of the regulations. Therefore, I find respondent’s determination not to provide the required half unit of health education to its current eighth grade class, including petitioner Doyle’s son, is without a rational basis, arbitrary, capricious and contrary to law.
THE APPEAL IS SUSTAINED.
IT IS ORDERED that respondent’s determination not to provide the required half unit of study in health education in accordance with Commissioner’s regulation §100.4(c)(1)(viii) to students in the 2012-2013 eighth grade class is hereby annulled; and
IT IS FURTHER ORDERED that respondent provide the required half unit of study in health education in accordance with Commissioner’s regulation §100.4(c)(1)(viii) to students in the eighth grade class by the end of the 2012-2013 school year.
END OF FILE