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Decision No. 13,429

Appeal of JOANNE REES and BEATRICE CHACHAKIS from action of the Board of Education of the Middle Country Central School District relating to adaptive physical education.

Decision No. 13,429

(June 9, 1995)

James R. Sandner, Esq., New York State United Teachers Association, attorney for petitioners, Stuart I. Lipkind, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent, David M. Wirtz and Jessica S. Weinstein, Esqs., of counsel

SOBOL, Commissioner.--Petitioners challenge the decision of the Board of Education of the Middle Country Central School District ("respondent") to allow teaching assistants who are certified to teach physical education, teach adaptive physical education. The appeal must be dismissed.

Petitioner Rees is a parent of a student receiving adaptive physical education in the Middle Country Central School District. She brings this appeal on behalf of her daughter and all other students receiving adaptive physical education in the district. Petitioner Chachakis is a teacher, resident and taxpayer in the school district. Commencing in the 1994-95 school year, respondent assigned four teaching assistants, who are certified to teach physical education, to provide adaptive physical education to district students who require such services.

Petitioners contend that respondent's use of teaching assistants to provide adaptive physical education violates 8 NYCRR '135.4[c][1][iv]. Additionally, petitioners contend that, even if this practice does not violate the regulations, the teaching assistants are not receiving sufficient supervision. Respondent contends that its deployment of teaching assistants to teach adaptive physical education complies with Education Law and regulations and that the supervision of the teaching assistants is adequate.

I will first address the issue of standing. Neither status as a resident of a district nor as a parent of a student in the district automatically confers on an individual the capacity to seek review of personnel actions by the board of education (Appeal of McGrath, 34 Ed Dept Rep 462; Appeal of Chrisfield, 33 id. 463; Appeal of Reed, et al., 33 id. 216; Appeal of Pecorale, et al., 31 id. 493). Rather, to maintain an appeal, an individual must also be aggrieved in the sense that he or she has suffered personal damage or injury to his or her rights (O'Shea v. Littleton et al., 414 US 312; DeFunis v. Odegaard, 416 US 312; Application of a Child with a Handicapping Condition, 30 Ed Dept Rep 53; Appeal of Town of Smithtown, 28 id. 337; Matter of Feiss and Dawkins, 22 Ed Dept Rep 401; Appeal of McGrath, supra; Appeal of Ulcena, 33 Ed Dept Rep 328; Appeal of Strober, 30 id. 4). Additionally, a petitioner may not assert the rights of other students, unless he or she has been authorized to bring a class action on their behalf (Appeal of McGrath, supra; Appeal of Chesbrough, 32 Ed Dept Rep 647; Appeal of Allert, 32 id. 538).

Petitioner Chachakis, as a teacher, resident and taxpayer, has failed to demonstrate any present injury or violation of her rights and as such has not been aggrieved by respondent's alleged failure to comply with the Commissioner's regulations. Accordingly, I find Chachakis lacks standing to bring this appeal and her claims must be dismissed. Moreover, petitioner Rees may not assert the rights of other students. Therefore, I cannot consider her claims except as they relate to her own daughter. With respect to those claims, petitioner has not demonstrated or even alleged that the hiring or assignment of the teaching assistants in question has caused her or her daughter any injury. Accordingly, petitioner Rees also lacks standing to challenge the board's decision. The appeal must therefore be dismissed.

The appeal must also be dismissed on the merits. Commissioner's regulation section 135.4[c][1][iv] provides:

There shall be activities adapted to meet the needs of pupils who are temporarily or permanently unable to participate in the regular program of physical education. Adaptive physical education programs shall be taught by a certified physical education teacher.

It is undisputed that the teaching assistants providing adaptive physical education are all certified to teach physical education. Contrary to petitioners' assertion, the regulation does not mandate that the individuals hired to provide adaptive physical education be employed at a particular salary level. The regulation merely specifies that adaptive physical education be taught by an individual certified to teach physical education. Since the record demonstrates that the teaching assistants providing the adaptive physical education instruction are all certified to teach physical education, I find that respondent has complied with the regulation.

Petitioner Rees' contention -- that the use of teaching assistants for adaptive physical education without direct supervision by a teacher is per se unlawful -- is also meritless. Section 80.33(b)(1) defines a teaching assistant's duties:

A teaching assistant is appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional service to students (emphasis added).

The regulation authorizes teaching assistants to provide direct instructional services to students. It does not mandate a teacher's presence at the time such instruction is provided. Rather, the regulation requires that a licensed or certified teacher provide general supervision. The record in this case reflects that respondent has assigned a teacher to provide general supervision to the teaching assistants teaching adaptive physical education. Respondent instructed this teacher to provide supervision to the same degree that any teacher would provide supervision to teaching assistants assigned to his or her class. He was instructed to help develop individualized education plans ("IEPs"), prepare lessons plans and progress reports. Respondent gave the supervising teacher a revised schedule to give him time to perform these tasks. I find that respondent has thus planned for the supervision of the teaching assistants and is, therefore, in compliance with the regulation.

Finally, petitioner Rees' argument that the supervising teacher is not eligible to supervise because he is not an administrator is also without merit. Commissioner's regulation '80.33(b)(1) requires the supervision of teaching assistants by a certified teacher. The regulation does not require such supervision by someone certified as an administrator. Accordingly, respondent's use of a certified teacher to supervise the teaching assistants complies with the regulation.

In view of the foregoing, I do not reach petitioners' remaining claims.