Appeal of RON GUZINSKI from action of the Board of Education of the City School District of the City of Rye and the Rye Teachers’ Association regarding teaching assignments.

Decision No. 16,676

(October 7, 2014)

Harold, Salant, Strassfield & Spielberg, attorneys for petitioner, Christopher Harold, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent Rye City School District, Emily J. Lucas, Esq., of counsel

KING, JR., Commissioner.--Petitioner, a high school physical education teacher, appeals the teaching assignment given him by the Board of Education of the Rye City School District (“respondent board” or “respondent”).  The appeal must be dismissed.

Commissioner’s regulation §100.2(i), relating to teaching assignments, provides:

1. Teaching staff in public schools.  The number of daily periods of classroom instruction for a teacher should not exceed five.  A school requiring of any teacher more than six teaching periods a day, or a daily teaching load of more than 150 pupils, should be able to justify the deviation from this policy.

During the fall 2013 semester, petitioner taught physical education at Rye High School.  Petitioner asserts that respondent assigned him a daily teaching load in excess of 150 students without justification, in violation of §100.2(i).  He claims he was assigned 203 students on Monday and Wednesday, 224 students on Tuesday and Thursday, and 220 students on Friday.  Petitioner contends that such assignment precludes effective teaching.  Specifically, petitioner alleges that he is unable to assign tasks that require deliberative evaluation or substantial interaction with individual students.  Petitioner further alleges that, due to the number of students assigned to him, he lacks sufficient resources and materials and many of his teaching stations are overcrowded, creating a risk to student safety.

Petitioner seeks an order requiring respondent board to provide a written justification for deviating from the 150-student daily teaching load set forth in §100.2(i) of the Commissioner’s regulations.  If such deviation is not justified, petitioner further seeks either a reduction of his daily teaching load to comply with the regulation or monetary compensation for the increased teaching load.

Respondent board[1] disputes petitioner’s claims regarding his daily teaching workload.  Respondent contends that, due to district policy that permits students participating in athletics during a semester to earn credit through such participation and “opt out” of physical education class, petitioner’s teaching load exceeds 150 students only on three days, with 166 students assigned on Tuesday and Thursday and 165 students on Friday.

Moreover, respondent board contends that petitioner’s daily teaching load is justified and does not preclude effective teaching.  Respondent denies that petitioner lacks adequate resources or that any safety risk exists.  Respondent also contends that the appeal is untimely and that I lack jurisdiction to award petitioner monetary compensation.   

I must first address several procedural matters.     Respondent asserts that the petition should be dismissed as untimely.  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).

Petitioner commenced this appeal on October 8, 2013.  The first day of school for students in the Rye City School District for the 2013-2014 school year was September 9, 2013.  Respondent contends that the appeal is untimely because its athletic director emailed petitioner on August 7, 2013, informing him of his teaching schedule.  Respondent further asserts that petitioner had access to his schedule through an electronic data portal sometime in mid-August 2013 and, therefore, service of the petition on October 8, 2013 exceeds the required 30-day period.  However, the August 7, 2013 email states only that petitioner would teach six physical education classes and does not include any information about the number of students that he would teach.  Moreover,  while teachers may be aware of their scheduled teaching load prior to the commencement of the school year, such teachers are not actually aggrieved until they are required to teach in excess of 150 students, in violation of Commissioner’s regulation §100.2(i).  Petitioner’s teaching assignment, through which he alleges that he was required to teach in excess of 150 students, was effective upon commencement of the 2013-2014 school year on September 9, 2013 (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of LaForty, 33 id. 161, Decision No. 13,010).  Therefore, because petitioner commenced this appeal within 30 days of the start of the school year, it is timely.

However, the appeal must be dismissed as moot.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

Petitioner’s claim that respondent is in violation of Commissioner’s regulation §100.2(i) is based only on his teaching assignment for the fall semester of the 2013-2014 school year.  Respondent asserts that the fall semester concluded in January 2014, and petitioner does not dispute that assertion.  Consequently, issues concerning petitioner’s teaching assignment for that semester are academic, which warrants dismissal of the appeal as moot.

Even if the appeal was not moot, it would be dismissed on the merits.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

With respect to the dispute regarding the number of students assigned to petitioner each day, respondent provides a chart setting forth the initial student assignments each day minus the number of students opting out, resulting in petitioner’s final daily teaching workload.  Petitioner submits no reply or other evidence, such as a class roster, to refute respondent’s submission.  Consequently, I conclude that petitioner’s teaching workload exceeded 150 students on three days each week, with assignments of 165 or 166 students.

Section 100.2(i) contemplates that circumstances may exist which would permit deviation from the daily student limit set forth therein.  A district may exceed daily teaching assignments of 150 students upon sufficient justification (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145; Appeal of Ames, et al., 26 id. 266, Decision No. 11,752; Appeal of Borden, 26 id. 237, Decision No. 11,740).  Furthermore, “... it does not follow that petitioner is entitled to relief upon showing that his assignment has exceeded the criteria set forth in the regulation” (Appeal of Borden, 26 Ed Dept Rep 237, Decision No. 11,740).  While determinations regarding the sufficiency of a justification must be made on a case-by-case basis, the intent of the regulation is to ensure quality instruction and the central inquiry in any case is whether, on each record, a particular assignment precludes effective teaching in a manner that diminishes quality instruction for students (compare Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212 with Appeal of Baker, et al., 33 id. 395, Decision No. 13,091).

Respondent explains, as justification, that petitioner’s teaching assignments resulted from the unique, complex scheduling situation at its high school, whereby students must be scheduled in conjunction with competing science labs, thereby limiting the number of available physical education classes in which to place students.  This results in irregular numbers of students assigned to the physical education classes.  Moreover, respondent asserts that petitioner’s physical education classes do not have homework, testing and projects commensurate with other courses.  Petitioner submits no reply to respondent’s assertions.

As noted above, it is well-settled that, since “the intent of §100.2(i) is to maintain quality instruction for pupils ... the issue is whether petitioner’s work load precludes effective teaching” (Appeal of Koenig, 50 Ed Dept Rep, Decision No. 16,145, citing Appeal of Kleinman, 34 id. 1, Decision No. 13,212).  It must be noted that §100.2(i) makes no specific exception for physical education teachers and, therefore, an excess teaching load for such teachers is not automatically justifiable and the facts of each case must be evaluated, as here, to determine whether a particular assignment which does not comply with the express provisions of the regulations precludes effective teaching in a manner that diminishes quality instruction for students (Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).  I note that the petition consists primarily of conclusory statements and is devoid of specific facts or any documentary evidence sufficient to establish petitioner’s claims regarding this issue.

Respondent contends that petitioner’s teaching workload does not preclude effective instruction because petitioner is provided with a significant amount of unassigned, self-directed preparation time which should provide sufficient time to plan for effective instruction.  Respondent further denies any negative impact on the quality of instruction to students, as petitioner’s physical education classes do not require the assessments, homework or intensive grading required of more traditional core academic subjects.  According to the record, petitioner has 240 minutes of daily instruction, 80 minutes of scheduled preparation and planning time, 40 minutes for lunch and 50 additional minutes of unassigned time during the day.  Petitioner has not demonstrated that such is inadequate to enable effective instruction nor has he shown that his students have been adversely affected by his workload (see Appeal of Kleinman, 34 Ed Dept Rep 1, Decision No. 13,212).

Respondent also denies that petitioner lacks sufficient resources or materials to instruct students and claims that petitioner never previously made any such complaint to the district.  Petitioner failed to submit any proof of his allegation with his petition, nor has he submitted any reply in response to respondent’s assertions.  Similarly, there is no proof submitted in support of his claim that his teaching workload presents a safety risk – which claim is denied by respondent.

Based on the record before me, I find that petitioner has not met his burden of proof.  However, I remind respondent of its obligation to continue to monitor teachers’ workloads and make good faith efforts to come into compliance with §100.2(i) of the Commissioner’s regulations as expeditiously as possible.

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

THE APPEAL IS DISMISSED.

END OF FILE