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Decision No. 16,886

Appeal of CATHERINE MCLOUGHLIN, on behalf of her daughter Catherine McLoughlin, from action of the Board of Education of the Marlboro Central School District regarding the distribution of textbooks

Appeal of JEANETTE WOOD, on behalf of her son Roy Joseph Wood, from action of the Board of Education of the Marlboro Central School District regarding the distribution of textbooks

Decision No. 16,886

(March 17, 2016)

Keane & Beane P.C., attorneys for respondent (McLoughlin appeal), Suzanne E. Volpe and Stephanie M. Roebuck, Esqs., of counsel

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent (Wood appeal), Daniel Petigrow, Esq., of counsel

ELIA, Commissioner.--In two separate appeals (“McLoughlin appeal” and “Wood appeal”), petitioners challenge actions of the Board of Education of the Marlboro Central School District (“respondent”) pertaining to the loan of textbooks.  Because the appeals raise similar claims and issues of law and fact, they have been consolidated for decision.  The appeals must be sustained in part.

Petitioner McLoughlin and her daughter reside in respondent’s district.  Petitioner’s daughter attends Bishop Dunn Memorial School (“Bishop Dunn”), a Catholic elementary school located in Newburgh, New York.

Petitioner Wood and her son also reside in respondent’s district.  Petitioner’s son attends Our Lady of Lourdes High School (“Lourdes”), a Catholic high school located in Poughkeepsie, New York.

On or about April 1, 2015, respondent’s director of business and finance (“business director”), sent a letter addressed to the “Textbook Coordinator” of each of the nonpublic schools that have students who reside in respondent’s district, including Bishop Dunn and Lourdes, setting forth the process by which nonpublic schools could request textbooks for the 2015-2016 school year, pursuant to Education Law §701.  The letter also indicated that each nonpublic school must provide evidence to the district that the textbooks requested were approved by a school board in New York State, for purposes of meeting the requirement in §701(3) that textbooks loaned to nonpublic school students “shall be textbooks which are designated for use in any public schools of the state or are approved by any boards of education, trustees or other school authorities.”  

In early June 2015, Bishop Dunn and Lourdes separately requested from respondent the loan of certain specified textbooks for the 2015-2016 school year for its students who resided in respondent’s district, including petitioner McLoughlin’s daughter and petitioner Wood’s son.  On July 9, 2015, respondent’s senior account clerk informed Bishop Dunn and Lourdes that the district would not provide the requested textbooks on the grounds that the dollar amount of the order exceeded the district’s per child appropriation for textbooks for the 2015-2016 school year, and requested each nonpublic school to provide a reduction in its total order so as to not exceed a maximum per student dollar limit of $58.25.  In addition, the senior account clerk requested that each nonpublic school provide, for each textbook requested, a resolution from a board of education approving the use of such textbook.

On July 9, 2015, the director of Catholic School Network for Dutchess and Ulster counties, acting on behalf of Bishop Dunn, provided the district with a list, allegedly prepared from information provided by the textbook publishers, of other public school districts in the State that are purchasing the textbooks requested by Bishop Dunn and Lourdes for the 2015-2016 school year.

On July 13, 2015, respondent’s business director informed the director of Catholic School Network that the July 9, 2015 submission was insufficient because the information provided did not establish that the textbooks had been approved for use in such school districts.  However, the business director indicated that, in lieu of a formal board of education resolution approving use of each textbook, respondent would be willing to accept a list or lists provided by another New York State public school district or districts indicating that the textbooks requested by Bishop Dunn and Lourdes for the 2015-2016 school year were approved for use in that district or districts.  These appeals ensued.  Petitioner McLoughlin’s request for interim relief was denied on August 6, 2015. Petitioner Wood’s request for interim relief was denied on August 10, 2015.

Petitioners allege that respondent’s refusal to provide textbooks violates Education Law §701, Commissioner’s decisions and New York State Education Department policy and guidelines.  Petitioners request that I determine that respondent is in violation of Education Law section 701 and direct respondent to modify its textbook loan policies to comply with the statute.     

Respondent denies petitioners’ allegations and maintains that it is under no obligation to provide textbooks requested by petitioners until the district is provided with evidence that the requested textbooks have been approved for use by a public school district within New York State.  Respondent also contends that the appeals must be dismissed, in part, as moot and for failure to meet the requirements for a class appeal. 

The attorneys for respondent in the McLoughlin appeal submit an application for approval to serve and file a late memorandum of law.  Section 276.4 of the Commissioner’s regulations requires respondent to serve a memorandum of law on petitioner in accordance with §275.9 within 30 days after service of the answer or 20 days after service of the reply, whichever is later.  Since no reply was served in this appeal, and the answer was served on August 10, 2015, respondent’s memorandum of law was required to be served by September 9, 2015. 

The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  In her affidavit in support of the application, respondent’s attorney states that good cause exists because on September 2, 2015, she learned from an attorney for respondent in the Wood appeal that respondent and the Catholic School Network were engaged in settlement discussions regarding both the McLoughlin appeal and the Wood appeal.  She further states that, as a settlement appeared to be forthcoming and in an effort to limit the amount of attorneys’ fees spent by the district, respondent did not submit a memorandum of law.  She subsequently learned that the settlement discussions had deteriorated and that no settlement would be reached.  However, the appropriate remedy in such circumstance would be for respondent to request from my Office of Counsel an extension of the deadline for filing its memorandum of law (see Appeal of Gimbrone, 50 Ed Dept Rep, Decision No. 16,177).  No request for an extension was made, and I note that respondent’s memorandum of law is substantively the same as the memorandum of law filed by respondent’s attorneys in the Wood appeal, which was timely served and accepted for filing.  Accordingly, respondent’s request to submit a late memorandum of law in the McLoughlin appeal is denied. 

To the extent that petitioners seek relief on behalf of other students who are residents of respondent’s district and who attend Bishop Dunn, Lourdes and other specified Catholic schools, class status is denied.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioners provide no details regarding the number and identity of the members of the purported class to establish that all questions of law and fact would be common to all members of the class.

The appeals must be dismissed, in part, as moot.  According to the affidavit of respondent’s director of business and finance, on July 10, 2015, the director rescinded his office’s initial request that Bishop Dunn and Lourdes revise their textbook loan requests to conform with the per pupil textbook allotment reimbursed by the State ($58.25).  Therefore, the appeal must be dismissed as moot to the extent they challenge those requests.  In addition, the appeals must be dismissed as moot insofar as petitioners challenge respondent’s failure to purchase and loan the requested textbooks in the 2015-2016 school year, as it is too late in the school year to render meaningful relief in that regard.  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). 

Turning to the merits, Education Law §701(3) provides in applicable part:

In the several cities and school districts of the state, boards of education, trustees or such body or officers as perform the function of such boards shall have the power and duty to purchase and loan upon individual request, textbooks, to ... all children residing in such district who are enrolled in a nonpublic school.  Textbooks loaned to children enrolled in said nonpublic schools shall be textbooks which are designated for use in any public schools of the state or are approved by any boards of education, trustees or other school authorities (emphasis added).... 

Neither petitioners nor respondent have provided a written textbook loan policy attributable to respondent.  Therefore, respondent’s “policy” must be gleaned from its practices and procedures (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Kelly, id. 235, Decision No. 13,528).  It appears from the correspondence submitted as exhibits and the affidavit of respondent’s business director that respondent has imposed a requirement that, in instances where the requested textbooks have not been approved for use by respondent, a request to provide textbooks to nonpublic school students must be supported by a written statement from another public school district, for each textbook requested, that such textbook has been approved for use in that district. 

On the record before me, I find that respondent has acted in an unreasonable and arbitrary manner in insisting that nonpublic school officials provide a board resolution or other written statement from another school district that the textbook has been approved by its board of education for use in that district.  Education Law §701 is itself silent on which party must establish that the textbooks “are designated for use in any public schools of the state or are approved by any boards of education, trustees or other school authorities.”  However, in Opinion of Counsel No. 181, 5 Ed Dept Rep 258, the Counsel for the Education Department stated that, in case of doubt that a textbook has been designated for use or approved by any school board, “the school board should make appropriate inquiries from the school board concerned or else decide if it wishes to approve the same itself.”  In addition, the answer to Question No. 5 in the State Education Department’s Handbook on Services to Pupils Attending Nonpublic Schools, which is cited by respondent, indicates that if a question is raised about approval by another school board, “the nonpublic school administrator is advised to ask the publisher of the textbooks about the use in other districts.”

Public school officials and nonpublic school officials need to maintain an ongoing, collaborative relationship to ensure that resident students attending nonpublic schools receive the services to which they are entitled under the Education Law.  Both have responsibilities that must be reasonably allocated between them.  It would be completely reasonable and consistent with Education Law §701 for respondent to have a policy that requires nonpublic schools to submit evidence that each textbook they have chosen is in use in one or more other school districts in the State.  The nonpublic school will have met its obligation once the school verifies from the publishers that the textbook is being used by one or more New York State school district(s) and provides a properly authenticated list of such school district(s).  Thereafter, if the school district has doubt that a textbook has been designated for use or approved by any school board then, consistent with Opinion of Counsel No. 181, 5 Ed Dept Rep 258, “the school board should make appropriate inquiries from the school board concerned or else decide if it wishes to approve the same itself.”  Thus, the school board has the option of taking on the minimal burden of contacting the school districts identified by nonpublic school officials as having purchased the textbook, by telephone or otherwise, or of deciding on its own if the textbook should be approved.

In these appeals, the list of school districts is not attached as an exhibit to the petitions, and petitioners offer no evidence as to its authenticity other than a conclusory assertion that Catholic school officials have confirmed with the publishers that the textbooks in question have been purchased by New York State school districts.  Respondent admits in its answers that it received a list in an email that the nonpublic school official claims is a list of districts purchasing the textbooks, but has not admitted its authenticity.  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).  Accordingly, with respect to the 2015-2016 school year, petitioners have failed to meet their burden of proving that respondent improperly declined to accept such list.

THE APPEALS ARE SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent modify its policies relating to the purchase and loan of textbooks to conform with this decision.

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