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Decision No. 13,562

Appeal of REVEREND FREELON W. KERRY, on behalf of his children, RACHEL, ARIEL and JESSE, from action of the Board of Education of the Watertown City School District regarding exemption from health education.

Decision No. 13,562

(March 8, 1996)

O'Hara & O'Connell, P.C., attorneys for respondent, Perri Rosenfeld Guido, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Watertown City School District ("respondent") to exempt his children from parts of the district's AIDS curriculum and the entire child sexual abuse curriculum. The appeal must be dismissed.

Section 135.3(a)(2) of the Commissioner's regulations requires that all elementary schools provide pupils with instruction on acquired immune deficiency syndrome (AIDS) as part of the district's health education program. Section 100.2(j) of the Commissioner's regulations similarly requires schools to educate students concerning child sexual abuse.

Section 135.3(c)(2)(i) of the Commissioner's regulations provides, in pertinent part:

All secondary schools shall provide appropriate instruction concerning the acquired immune deficiency syndrome (AIDS) as part of required health education courses in grades 7-8 and in grades 9-12. Such instruction shall be designed to provide accurate information to pupils concerning the nature of the disease, methods of transmission, and methods of prevention; shall stress abstinence as the most appropriate and effective premarital protection against AIDS, and shall be age appropriate and consistent with community values. No pupil shall be required to receive instruction concerning the methods of prevention of AIDS if the parent or legal guardian of such pupil has filed with the principal of the school which the pupil attends a written request that the pupil not participate in such instruction, with an assurance that the pupil will receive such instruction at home.

In this case, respondent exempted petitioner's children from the "methods of prevention" portion of the AIDS curriculum pursuant to the above provision. However, respondent refused to exempt petitioner's children from either the remaining portions of the AIDS curriculum or the child sexual abuse program on the ground that it lacked the authority to waive these instructional requirements.

Petitioner filed a petition with former Commissioner Sobol under 8 NYCRR 16.2, requesting an exemption for his children from respondent's health instruction based upon his religious objections to such instruction. Respondent indicates that while it does not object to petitioner's request, it does not believe that such an exemption can be authorized under State law.

Before reaching the merits of petitioner's appeal, I will address a procedural issue. Section 16.2 provides, in pertinent part:

A petition, duly verified, may be filed with the commissioner by a proper person authorized to represent a religious group on a statewide basis asking that the children of parents or guardians professing the religion of such group be excused from such part of the study in health and hygiene as may be in conflict with the tenets of the religion of such group. Such petition shall contain a statement setting forth the specific area of health and hygiene where such conflict is deemed to exist.

In this case, petitioner has filed an abbreviated petition that appears to only request exemptions for his children. Although petitioner purports to represent a religious group, he offers no proof of that authorization or sufficient documentation to adequately consider this matter an application under 8 NYCRR 16.2. Since the petition does not meet the threshold requirements set forth in the regulation, I will only address petitioner's request to individually exempt his children from health education.

The programs to which petitioner objects are required by State regulations that provide no exceptions other than the exemption outlined above. As noted previously, petitioner has already received an exemption from a portion of the AIDS curriculum. Health education is required by State law and a board of education has no authority to waive such a requirement (Education Law '3204[3]; Matter of Mitchell, 14 Ed Dept Rep 1; Matter of Mitchell, 13 id. 228). My review of the record indicates that there is no basis to grant the remaining exemptions petitioner seeks.

I have reviewed the parties' remaining contentions and find them without merit.