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Decision No. 12,997

Appeal of CHRISTINE CANAZON from action of the Board of Education of the Minisink School District relating to classroom monitoring.

Decision No. 12,997

(August 31, 1993)

Shaw and Silveira, Esqs., attorneys for respondent, Margo L. May, Esq., of counsel

SOBOL, Commissioner.--Petitioner, a member of respondent's AIDS Advisory Council, appeals from respondent's denial of her request to observe a 6th grade health education sequence. The appeal must be dismissed.

On January 21, 1993, petitioner met with the Assistant Superintendent for Curriculum and Instruction and a health teacher, seeking permission to visit a 6th grade classroom during a series of five health lessons. Although petitioner had previously been allowed to visit two other classes, on January 22, 1993 respondent denied her request to observe these particular lessons. Instead, petitioner was given access to guides, the course outline for the 6th grade health sequence, the health syllabus and the AIDS instructional guide. Additionally, she was given opportunities to discuss the curriculum with both the health teacher and district administrators and view the filmstrip "Changing", which was to be shown in class.

On March 25, 1993, petitioner again requested permission to observe the 6th grade health sequence. On April 1, 1993, the superintendent denied her request, and the board of education affirmed his determination. This appeal followed.

Petitioner asserts that because she was permitted to observe certain classes previously, in accordance with respondent's policy she should be allowed to observe any class she chooses. She further contends that as a member of the AIDS Advisory Council (the "Council"), Commissioner's regulation '135.3 entitles her to observe these classes to evaluate respondent's AIDS instruction program. She seeks an order directing respondent to permit her to observe the 6th grade health education sequence.

Respondent contends the appeal should be dismissed because petitioner is not legally entitled to the relief she seeks. Respondent cites Education Law '1709(2) as its authority to limit access to classrooms. Further, respondent asserts that its policy No. 3210 properly provides discretion to the building principal to determine when access is appropriate.

It is well settled that the Commissioner will decide 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 Impellizzeri, 32 Ed Dept Rep 26; Appeal of DiMilia, 30 id. 391; Appeal of Sileo, 28 id. 313). Since the classes petitioner asked to observe have now concluded, this appeal must be dismissed as moot. However, because petitioner's claims arise from respondent's policy and her role as a member of the Council, the issue presented in this appeal is likely to arise again. Therefore, to avoid the need for future challenges, I will review respondent's authority to limit access to classrooms.

Education Law '1709(2) grants boards of education authority "to establish such rules and regulations concerning the order and discipline of the schools ... as they may deem necessary to secure the best educational results." Respondent board's policy No. 3210, promulgated pursuant to '1709(2), states:

"Visitations to classrooms for any purpose require permission, in advance, from the building principal in order to allow teachers the opportunity to arrange their schedules to accommodate such requests."

This policy does not confer upon an individual an absolute right to visitation, but instead gives the building principal discretion to restrict access. Such a policy is within a board's authority to enact (Appeal of Kella, 32 Ed Dept Rep 47). Accordingly, the question in this case becomes whether the district acted arbitrarily and capriciously in denying petitioner access to certain classes pursuant to the policy.

The record shows that respondent's denial of petitioner's request was based on its determination that given the sensitive nature of the subject matter -- puberty, body changes, reproduction and AIDS -- the presence of a non-instructional adult would hamper the free and open exchange of information and discussion. Based upon my review of the record, I find that this was a valid concern on the part of the district, and thus constitutes a reasonable basis for the denial of petitioner's request.

Petitioner is correct, however, that by virtue of her position on the Council, she has a special responsibility to make recommendations "concerning the content, implementation and evaluation" of the district's AIDS instructional program (8 NYCRR '135.3(b)(2) and (c)(2)(i)). While this role does not guarantee her unfettered access to district classrooms, it does impose upon the district an obligation to provide the Council and its members with sufficient information to fulfill its responsibilities. As noted above, although the district denied petitioner access to some classes, it did provide her with relevant guides, a course outline, a health syllabus and the AIDS instructional guide. Additionally, both the classroom teacher and pertinent administrators met with petitioner to discuss the curriculum. I find that these efforts appropriately balanced petitioner's concerns with the need to create a classroom environment conducive to open discussion.