Appeal of YVETTE BEYDA on behalf of her son JUDAH, from action of the New York City Department of Education regarding the distribution of textbooks.

Decision No. 17,540

(November 26, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Henry Chou, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the process by which the New York City Department of Education (“NYCDOE” or “respondent”) loans textbooks to nonpublic school students.  The appeal must be dismissed.

Petitioner states that she resides within the geographical confines of respondent’s school district and that her son Judah (“the student”) attends a nonpublic school.  Although not indicated in the caption, petitioner indicates that she is appealing on behalf of her son and “the class of unnamed individuals comprising all students that attend nonpublic schools in New York City.” 

Petitioner alleges that for the “past eight years, [respondent] has not complied with equitable provisions in the New York State Education Law [§]701 ...” and that “[f]or the past 14 years, [respondent] has been spending a significantly greater amount than Legislature approved per public school student funding.” Petitioner claims that respondent spends “an average of $110 each year; or $52 above the Legislature approved amount” per public school student but that “it did not consult with or offer any additional funds to nonpublic schools and their students” in violation of “the Education Law §701 equitable funding formula ....”  As relief, petitioner requests an order “requiring [respondent] to equitably distribute textbooks to both public and nonpublic schools for past, present and future textbook purchases or such other relief as the Commissioner deems just and proper.”

Respondent argues that petitioner lacks standing to bring this appeal and therefore, the appeal must be dismissed.  Respondent also argues that, to the extent that petitioner seeks to bring this appeal on behalf of a class, the appeal must be dismissed because petitioner has failed to identify common questions of law and fact and to state the number of individuals she seeks to represent.  Finally, respondent argues that the appeal must be dismissed because petitioner has failed to meet her burden of proof.

I will first address the procedural matters. To the extent petitioner seeks to maintain the appeal as a representative of a class of “all students that attend nonpublic schools in New York City,” 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 Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  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 Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  Petitioner has not made this showing.  In fact, the petition does not address the requisite standard at all.   Petitioner merely states that she is appealing on behalf of her son and “all students that attend nonpublic schools in New York City” and that the “class is so numerous that joinder of all members is not practicable.”  Petitioner makes no allegation as to how the nonpublic school students are aggrieved and makes no mention of whether they share all questions of law and fact at issue in this appeal. Therefore, class status is denied.

Respondent asserts that petitioner lacks standing to maintain this appeal.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

To the extent petitioner attempts to assert claims on behalf of students other than her son, petitioner clearly lacks standing to assert the rights of others.  Petitioner also lacks standing to bring this appeal on behalf of her son as she does not allege that the student suffered any personal damage or injury or was directly affected by respondent’s textbook loan policy.  Petitioner does not allege that any request for textbooks on behalf of the student was denied, or that the student did not receive all necessary textbooks. 

With respect to respondent’s claim that petitioner lacks “taxpayer standing,” I note that district residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744).  Nevertheless, petitioner does not allege that respondent has made any illegal expenditures — her only claim is that respondent’s procedures for textbook loans fail to provide textbooks on an equitable basis to nonpublic students as required by Education Law §701 because respondent spends substantially more for textbooks for public school students. In that regard, she has not actually alleged that any request for a textbook loan on behalf of a resident nonpublic school student has been denied as a result of respondent’s policies.  Petitioner has not demonstrated that she has suffered personal damage or injury to her civil, personal or property rights as a resident district taxpayer.  Rather, she is asserting her rights as the parent of a nonpublic school student and, as I found above, she has not demonstrated that she has standing in such capacity.  Therefore the appeal must be dismissed for lack of standing.

Nevertheless, for the benefit of the parties I remind respondent that 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). 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 Hoerter, 48 Ed Dep Rep 373, Decision No. 15,889; Appeal of Gallagher, 47 id. 69, Decision No. 15,629; Appeal of Caunitz, et al., 30 id. 396, Decision No. 12,510; Appeal of Gross, 25 id. 382, Decision No. 11,618).  A board of education’s textbook loan policies, procedures and practices may not establish a per-pupil dollar ceiling beyond which it will not purchase and/or loan textbooks (see Appeal of Miller, 48 Ed Dept Rep 367, Decision No. 15,887).  A board of education must instead determine the need for new textbooks each year by compiling all requests for textbooks in all buildings and comparing such requests with existing inventory (Appeal of Hoerter, 48 Ed Dep Rep 373, Decision No. 15,889; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799; Appeal of Gallagher, 47 id. 69, Decision No. 15,629).  I urge respondent to review its policies, procedures and practices, and revise them as necessary, to assure that they comply with these principles. I also urge respondent to ensure that its guidance clearly apprises nonpublic schools and the parents of resident nonpublic school students of their right to request textbooks beyond the per pupil State aid allocation, a right which respondent acknowledges in this appeal.  

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

THE APPEAL IS DISMISSED.

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