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Decision No. 12,745

Appeal of IRENE H. IMPELLIZZERI and MICHAEL J. PETRIDES from action of Joseph H. Fernandez and the Board of the Education of the City School District of the City of New York, regarding AIDS instruction.

Decision No. 12,745

(July 9, 1992)

John D. Murnane, Esq. and John D. Hartigan, Esq., attorneys for petitioners

Hon. O. Peter Sherwood, Corporation Counsel, attorney for respondent, Doron Gopstein, Esq., of counsel

SOBOL, Commissioner.--Petitioners challenge an HIV/AIDS curriculum and condom distribution plan developed by respondent, Chancellor of the City School District of the City of New York. Petitioners request an order directing respondent to modify the curriculum and enjoining the implementation of the condom distribution plan until it has been revised. Petitioners also request that an investigation be conducted pursuant to Education Law '805(8). The appeal must be dismissed.

In response to the promulgation of amendments to '135.3 of the Regulations of the Commissioner of Education, the former Chancellor of the New York City School District implemented an AIDS instruction program in September 1988. When respondent Fernandez was subsequently named Chancellor, he initiated a review of that program. As a result of that review, respondent developed an expanded HIV/AIDS education program that would provide education in the transmission and prevention of HIV/AIDS and, as a component of classroom instruction, make condoms available to high school students upon request. As of the date of this appeal, the expanded, revised curriculum on HIV/AIDS was in draft form and had not been adopted by the Board of Education of the City School District of the City of New York.

On February 27, 1991, the New York City Board of Education, by separate resolution, authorized the Chancellor to make condoms available in high schools as part of an HIV/AIDS education program. That program was initiated at the beginning of the 1991-92 school year. This appeal was then commenced by petitioner Impellizzeri, a member of the New York City Board. Subsequently, Mr. Petrides, also a board member, joined as a petitioner. By my order dated February 5, 1992, the New York City Board of Education was joined as a respondent.

At respondent board's request, its time to submit an answer was extended several times. Such requests were granted based upon representations by the Corporation Counsel's office that the parties were working to settle this dispute. My Office of Counsel subsequently informed respondent board that any further requests for extensions would be granted only with petitioners' consent. Pursuant to agreement between petitioners and respondent board, several additional requests for extensions of time to answer were given to respondent board. On June 30, 1992 respondent board requested yet another extension. Because petitioners refused to consent to the extension, that request was denied. Consequently, the time for submitting an answer has passed and respondent board is now in default.

Petitioners contend that the proposed HIV/AIDS curriculum for all grades violates Education Law '804 because it stresses the avoidance of sharing needles rather than the avoidance of all intravenous drug use. Petitioners also claim that the proposed curriculum violates Education Law '804 and the Regulations of the Commissioner because it stresses safe sex as a means of avoiding AIDS, rather than stressing abstinence. Petitioners further contend that the curriculum fails to disclose fully and clearly the risk of condom failure. Petitioners also maintain that the condom distribution plan for high school students violates '135.3(c)(2)(ii)(c) and (d) of the Regulations of the Commissioner of Education because it does not ensure that pupils given condoms will receive adequate guidance by competent health care professionals based on their individual needs.

As a result of the investigation begun by the Department pursuant to petitioners' request under Education Law '805(8), it has come to my attention that respondent board modified the challenged curriculum subsequent to the commencement of this appeal. Specifically, it voted to eliminate certain items from the proposed curriculum and to include other items. Some of the items removed from the high school curriculum, such as a video entitled "AIDS: Just Say No" and a leaflet entitled "Teens Have The Right", are the very items the inclusion of which in the curriculum petitioners challenge. In addition, respondent board subsequently voted to accept the kindergarten-grade 6 AIDS curriculum, as amended, but apparently has not acted on the grades 7-9 or grades 10-12 AIDS curriculum.

It is well settled that the Commissioner will determine only matters which are in actual controversy and will not render a determination upon a matter which subsequent events have laid to rest (Appeal of DiMilia, 30 Ed Dept Rep 391; Appeal of Sileo, 28 id. 313; Appeal of Huggins, 28 id. 173). Petitioners request review of a curriculum that no longer exists in the form in which it was when this appeal was commenced. Indeed, the curriculum has either been substantially changed since this appeal was brought or is in the process of being modified. The curriculum as amended is not before me, nor was it the subject of the investigation conducted by the Department. Although petitioners may, of course, seek review of the modified curriculum once it has been finalized and adopted, their petition challenging a curriculum that has since been substantially superseded is moot.

Moreover, petitioners apparently misapprehend the application of '804 to the facts of this case. The petition alleges that respondent's purported failure to stress abstinence rather than safe sex as a means of avoiding AIDS violates Education Law '804. However, Education Law '804 concerns "Health education regarding alcohol, drugs and tobacco abuse", and does not address the need to stress sexual abstinence versus safe sex. If respondents curriculum does, indeed, fail to stress abstinence, such a failure would violate '135.3(b) and (c) of the Regulations of the Commissioner of Education, and not Education Law '804.

Similarly, petitioners requested an investigation of the HIV/AIDS curriculum pursuant to Education Law '805(8). That section provides that, on complaint by appeal to the Commissioner of Education of a violation of Education Law ''804 or 804-a, an investigation shall be commenced. As noted above, Education Law '804 concerns alcohol, drugs and tobacco use, and has no relation to petitioners' allegations regarding safe sex versus abstinence. Education Law '804-a involves grants available to school districts to conduct health education demonstration programs and is clearly not applicable to the issues raised by petitioners. Thus, the investigation called for by petitioners needed only to address issues related to "education regarding...drugs", i.e., whether the AIDS curriculum properly stressed the avoidance of all intravenous drug use rather than the avoidance of sharing needles. A failure to do so would violate Education Law '804 and is properly within the scope of an investigation pursuant to Education Law '805(8). However, petitioners' demand for an investigation of the abstinence versus safe sex issue is not required pursuant to '805(8). While the Department did review that issue as part of its investigation, it did so only at my direction and not under compulsion of statute.

Regarding the condom distribution plan, petitioners contend that it violates '135.3(c)(2)(ii)(c) and (d) because the guidance being offered to students who receive condoms is inadequate. Petitioners' assertion, however, was based on regulatory language that was amended subsequent to the filing of this appeal. There is no claim before me that the plan does not comply with '135.3(c)(2)(ii)(c) and (d) as amended. Therefore, the claim with respect to the condom availability program is also moot.

Because the matter has been rendered moot, petitioners' request for oral argument is denied.