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Decision No. 12,657


Decision No. 12,657

(February 28, 1992)

Stuart Frum, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioners appeal from the inclusion of two programs in respondent's elementary school curriculum. The appeal must be dismissed.

In March 1991, petitioner Marsh's son reported that he was learning how to "clear his mind" in school. Upon investigation, petitioners learned that respondent's school psychologist was meeting with elementary school classes, using programs known as Toward Affective Development (TAD) and Developing Understanding of Self and Others (DUSO). According to respondent, the Westport Central School District ("the district") uses TAD and DUSO to help students develop self-esteem and to maintain mental and emotional health.

Contending that TAD and DUSO violate their personal beliefs, a number of petitioners requested that their children be exempted from the sessions. Initially, respondent's superintendent of schools granted their requests. By letter dated April 24, 1991, however, the superintendent reversed his decision, stating that all children would be required to attend the sessions. For a short time thereafter, the district permitted parents to observe TAD and DUSO classroom sessions. At a school board meeting on May 9, 1991, however, the superintendent announced that parents could no longer observe sessions without permission from the classroom teacher. The record suggests that most teachers thereafter chose not to admit parent observers.

In his April 24 letter, the superintendent instructed parents objecting to TAD and DUSO to submit their complaints to the district's Instructional Materials Review Committee (IMRC). The record indicates that petitioners DeGroff, Marsh, Sherman and Luciano availed themselves of that opportunity. Petitioners nevertheless commenced this appeal on June 7, 1991, before the IMRC completed its review of the complaints.

Respondent raises a number of procedural objections which I will address before reaching the merits of this appeal. Respondent contends that the petition should be dismissed for failure to comply with '275.4 of the Regulations of the Commissioner of Education, which provides:

[a]ll pleadings and papers submitted to the Commissioner in connection with an appeal must be endorsed with the name, post office address and telephone number of the party submitting the same, or, if a party is represented by counsel, with the name, post office address and telephone number of his attorney (8 NYCRR 275.4).

Respondent asks that I dismiss the petition because it does not contain the post office address and telephone number of each of the fourteen petitioners. This objection must be dismissed. When a petitioner is not represented by counsel, a liberal interpretation of the regulations is appropriate, particularly where, as here, there is no evidence of prejudice to the respondent (Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519, 522). Petitioner DeGroff appears to have prepared and submitted the pleadings herein on behalf of all petitioners, and her name, address and telephone number appear on all the papers. Under the circumstances, therefore, I find that petitioners complied substantially with '275.4.

Respondent also contends that the petition should be dismissed because it was not verified by each of the named petitioners. The applicable regulation requires verification by "at least one of the petitioners" (8 NYCRR 275.5). Because the petition herein was properly verified by petitioner DeGroff, I find respondent's argument without merit.

Respondent further alleges that petitioners have failed to demonstrate entitlement to relief. This objection must be sustained in part. Section 275.10 of the Regulations of the Commissioner of Education provides that a petition "shall contain a clear and concise statement of the petitioner's claim showing that petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled" (8 NYCRR 275.10; Appeal of Kuleszo, 30 Ed Dept Rep 465, 466). This is not a class appeal under '275.2 (8 NYCRR 275.2), nor is there any basis for me to invoke that provision suasponte (see, Appeal of Luther H., 30 Ed Dept Rep 233). Consequently, each petitioner must satisfy the requirements of '275.10. Petitioners' exhibits include a letter to respondent from petitioners Lawrence, describing their objections to TAD and DUSO. This exhibit adequately states a claim on behalf of the Lawrences. However, neither the petition nor petitioners' exhibits contain evidence establishing claims for any of the other named petitioners. Respondent has offered the complaint forms submitted to the IMRC by petitioners DeGroff, Marsh, Sherman and Luciano, in its answering papers. Interpreting the regulations liberally (see, Application of a Child with a Handicapping Condition, 28 Ed Dept Rep 519, 522), I find that the complaint forms permit review on behalf of those four petitioners. I find, however, that the remaining named petitioners have failed to state a claim for relief, requiring dismissal of the petition as to them (8 NYCRR 275.10; see, Appeal of Singh, 30 Ed Dept Rep 284).

Petitioners contend that TAD and DUSO are religious in nature, and that their use in the public schools violates State and Federal constitutional provisions regarding the separation of church and State. Petitioners also contend that mandatory participation in these programs violates their own religious principles, as well as their constitutional right to privacy. I must dismiss these claims because they are raised in an improper forum. Petitioners ask me to decide novel questions of constitutional law. An appeal to the Commissioner of Education, however, is not the proper forum for litigating such questions, particularly when they have not previously been subject to judicial interpretation (Appeal of DePasquale, 30 Ed Dept Rep 361, 363). If petitioners wish to pursue their constitutional claims, they must do so in an appropriate judicial forum.

Petitioners also seek an order requiring the district to excuse their children from TAD and DUSO sessions, upon request. Respondent considers TAD and DUSO to be components of its elementary school curriculum. At the same time, however, petitioners suggest that these programs involve psychological counseling, which elicits confidential information from the students. My review of petitioners' request for exemptions, therefore, requires a two-pronged analysis.

Boards of education have broad authority to prescribe the course of study in the schools of the district, and on matters of curriculum I will not substitute my judgment for that of the board, without evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Education Law ''1709[3], 1804[1]; Appeal of Fox, 30 Ed Dept Rep 19; Appeal of Luther H., 30 Ed Dept Rep 233). Because the Education Law requires that minors attend school (Education Law '3205[1]), parents generally may not exempt their children from portions of the district's curriculum.

Psychological counseling in the public schools, however, raises unique considerations. While I recognize that parental consultation is not appropriate in all cases (see, e.g., 8 NYCRR 100.2[v][4]), parents generally should be informed and consulted when psychological counseling is offered to their children. School districts should, therefore, establish policies to address such issues as the need for parent consultation prior to the initiation of psychological counseling, sharing confidential information with parents and the extent to which parental requests for exemptions from counseling should be granted. In promulgating such policies, school districts should observe the Board of Regents' New Compact for Learning (1991), which calls for a genuine partnership between parents and school officials, and increasing parental participation in educational decisionmaking.

Notwithstanding petitioners' allegations, the record before me does not contain adequate information describing the TAD and DUSO programs, or the manner in which the programs are presented. Consequently, I am unable to determine the extent to which, if at all, respondent's implementation of TAD and DUSO constitutes psychological counseling. Further, because the record does not establish whether respondent has an official policy regarding psychological counseling, I cannot assess the reasonableness of respondent's determination. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163). I find that petitioners have not met their burden of proof. Their request for exemptions from TAD and DUSO must, therefore, be denied.

Petitioners also contend that TAD and DUSO are educationally unsound. In support of their position, petitioners submit a number of excerpts from books in the field of psychology. While I appreciate the extent to which petitioners have researched their issue, I am unable to conclude that TAD and DUSO are educationally unsound, on the evidence presented. As indicated, the board of education has broad authority to prescribe the course of study in the district (Education Law ''1709[3], 1804[1]). The fact that some commentators disagree with TAD and DUSO is insufficient to support a finding that respondent has abused its discretion by incorporating the programs into its curriculum. This is particularly so in the absence of evidence specifically documenting detrimental effects of TAD and DUSO to children in the Westport Central School District.

Finally, petitioners argue that mandatory participation in TAD and DUSO violates the Federal Protection of Pupil Rights Amendment (20 USC 1232h; "PPRA"). That provision, however, applies only in the context of specified Federal programs (20 USC 1232h[b]; 34 CFR 98.1). Petitioners have not alleged that the activities to which they object occur in the context of one or more of the Federal programs set forth in the PPRA. Complaints under the PPRA, in any event, must be addressed to the Family Educational Rights and Privacy Act Office of the United States Department of Education (34 CFR 98.7).