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Decision No. 12,836

Appeal of BARBARA KEEN, on behalf of Jonathan Keen, from action of the Board of Education of the Miller Place Union Free School District regarding curriculum.

Decision No. 12,836

(November 19, 1992)

Cahn, Wishod, Wishod & Lamb, Esqs., attorneys for respondent, Robert H. Cohen, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to obtain parental consent as a precondition for student involvement in respondent's elementary school drug abuse prevention curriculum. The appeal must be dismissed.

In 1987, respondent introduced as part of its drug abuse prevention program a component entitled "Project Charlie" ("the Project"). Petitioner complains about the Project's use of a "feeling cube" where children are required to share personal experiences relating to the feelings identified on the cube, inclusion of student discussions on "Things That Bug Me" and use of "The Anger Thermometer," which requires students to rate their anger in response to a series of questions. Petitioner also complains of that portion of the Project that elicits students' feelings by asking them to complete open ended sentences.

Initially, petitioner, joined by five other residents, wrote to respondent's superintendent asserting that the Project violated the Federal Protection of Pupil Rights amendment (20 U.S.C. 1232h, "the Hatch Amendment"). In response to petitioner's concerns, respondent voted 4-1 to suspend the Project pending an informational meeting scheduled for March 23, 1992. At that meeting, respondent voted unanimously to reinstate the Project. This appeal ensued.

Petitioner asserts that respondent's implementation of the Project violates the "Hatch Amendment" because respondent does not require parental consent for student participation. Petitioner seeks an order requiring respondent to either obtain parental consent for participation in the Project or offer an alternative program where consent is withheld.

Respondent contends that the appeal is untimely. Respondent also argues that I lack jurisdiction to decide this appeal since the United States Department of Education has exclusive jurisdiction over complaints involving violations of the "Hatch Amendment." Respondent further contends that the "Hatch Amendment" is inapplicable, since the Project is not currently federally funded.

Regarding the timeliness of this appeal, an appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The time to bring an appeal is determined from the date of the decision under review (Appeal of Magee, 30 Ed Dept Rep 479). Petitioner challenges respondent's March 23rd decision to reinstate the Project over petitioner's objections. However, this appeal was not commenced until April 30, 1992. Since the appeal was commenced more than 30 days from the date of respondent's decision and petitioner provides no excuse for her delay, the appeal must be dismissed as untimely.

Regarding the merits, petitioner claims that student participation in the Project without parental consent violates "the Hatch Amendment" which provides, in pertinent part, that:

[n]o student shall be required... to submit to psychiatric examination, testing or treatment or psychological examination, testing or treatment... without the prior written consent of the parent.

Respondent correctly argues that it is the Family Educational Rights and Privacy Act Office of the United States Department of Education which has exclusive jurisdiction over such complaints (34 CFR 98.7). Since petitioner's primary claim involves violations of the "Hatch Amendment," I am constrained to dismiss the appeal for lack of jurisdiction.

I find petitioner's claims that the curriculum violates State law and regulation without merit. Because boards of education have broad authority to prescribe the course of study on matters of curriculum, I will not substitute my judgment for that of the board, without evidence that the board's actions are arbitrary, capricious or unreasonable (Education Law ''1709, 1804; Appeal of Degroff, 31 Ed Dept Rep 332; Appeal of Fox, 30 id. 19). With exceptions not relevant here, parents may not exempt their children from portions of a district's curriculum.

Although I previously addressed the need to inform parents when a school district provides student counseling, there is no evidence that the curriculum complained of here involves such counseling (Appeal of Degroff, supra; 8 NYCRR 100.2[v][4]). In fact, respondent implemented the Project to comply with Commissioner's regulations governing health education (8 NYCRR '135.3(a)). A student's involvement in health education is not premised on parental consent. Additionally, Education Law '804(2) requires that elementary school students have instruction about drugs to develop "... desirable health behavior, attitudes and knowledge as well as self-reliance and problem solving capacity."

Furthermore, upon my review of the record, I find that, consistent with Commissioner's regulations, the Project is designed to promote the social and emotional growth of young children before any exposure to drugs. In the absence of evidence that the Project involves psychological counseling and in view of the evidence that the curriculum promotes the goals of health education regarding drug prevention in compliance with Education Law '804 and the Commissioner's regulations, petitioner's State law claims are dismissed.