Decision No. 13,775

(June 10, 1997)

James R. Sandner, Esq., attorney for petitioners, Stuart I. Lipkind, Esq., of counsel

Rains & Pogrebin, P.C., attorneys for respondent, Jessica Weinstein, Esq., of counsel

MILLS, Commissioner.--Petitioners, elementary school teachers in respondent's district, appeal their assignment to teach physical education. The appeal must be sustained.

Petitioners are all certified in the area of elementary education, but are not certified as physical education teachers. In addition to petitioners' usual elementary teaching responsibilities, respondent has assigned them to teach physical education to their respective elementary classes. Petitioners allege that respondent has failed to provide them with "the direction and supervision of a certified physical education teacher" in their teaching of physical education, as required by '135.4(c)(4)(i). Petitioners request that respondent be barred from assigning them to teach physical education until such time as appropriate direction and supervision are supplied.

Respondent denies that petitioners are not being provided with the required direction and supervision. Respondent also contends that petitioners lack standing to bring this appeal.

To maintain an appeal, an individual must be aggrieved in the sense that he or she has suffered personal damage or injury to his or her rights (Appeal of Rees and Chachakis, 34 Ed Dept Rep 616). Respondent, citing Matter of Middle Island Principals' Association, et al., 19 Ed Dept Rep 507, argues that petitioners lack standing to contest respondent's compliance with '135.4, since the regulation is intended to benefit students and not to confer a "legal benefit" on petitioners to receive direction and supervision. However, while the primary beneficiaries of '135.4(c)(4)(i) are the students receiving instruction pursuant to that section, the regulation also ensures that elementary teachers receive sufficient assistance to enable them to teach physical education. Respondent's alleged failure to provide petitioners with the required direction and supervision would directly and adversely affect each petitioner's ability to perform his or her teaching responsibilities. This appeal is thus distinguishable from Middle Island, supra, where petitioner principals were seeking enforcement of a Commissioner's regulation which required that a principal be assigned to each school under a board of education's supervision. Unlike the present appeal, the failure of the board of education to comply with the regulation by refraining from appointing a principal to a particular school would not affect the ability of the existing principals to perform their job functions. Accordingly, I find that petitioners have standing to bring this appeal.

Petitioners have submitted affidavits attesting to the lack of direction or supervision received from a certified physical education teacher during their assignments to teach physical education. There is some indication in the record that during the 1994-95 school year, at least "workshops" for the elementary school teachers were conducted in a classroom setting by the then athletic director. However, the number of these workshops is variously given as "several", "at least one", or "two" and there are conflicting claims that they were administered on a "grade level" or "primary and intermediate" basis and not by individual grade level. Petitioner Moore alleges that in both of the workshops he attended, the athletic director stated that he was not requiring or directing the teachers to incorporate the demonstrated skills into their lesson, but that the teachers should use only those activities that they felt "comfortable with". Petitioners' affidavits further allege that the only visits by certified physical education teachers to their physical education classes occurred in January or February 1996, when two certified gym teachers "took over" their classes for the purpose of demonstrating to the students the routines in the Presidential Fitness Awards test to be administered to the students later that year. Petitioners allege, and respondent fails to refute, that the gym teachers did not provide direction to petitioners on how to incorporate the routines into their classes, but instead told the students to practice the routines on their own at home. Respondent submits the affidavit of a former acting athletic director, which attests that he conducted several observations of elementary teachers who were providing physical education instruction during the fall of 1995, and that he was present when his predecessor conducted at least one in-service workshop during the preceding school year. Respondent also submits an affidavit of its current athletic director, in which he states that he has spent approximately fifty hours observing the elementary teachers, during which time he was available to answer any questions or provide demonstration when necessary, and that he is "aware" that his predecessor conducted "several" in-service workshops during the 1994-95 school year. However, petitioners have submitted reply affidavits in which they state that they have never met with, had their classes observed by, or received direction or supervision from the athletic director or the former acting athletic director.

Upon careful review of the record, I find that respondent has failed to provide the direction and supervision required by '135.4(c)(4)(i). While "workshops" were provided during the 1994-95 school year, petitioners contend that they were few in number, limited in scope and failed to provide them with direction concerning the conduct of their classes. In any event, regardless of the fact that workshops were administered in 1994-95, the record establishes that during the 1995-96 school year, petitioners were basically left to teach physical education on their own and without any ongoing process of direction and supervision by a certified physical education teacher. Furthermore, respondent's reliance on my decisions in Appeal of Rees and Chachakis, supra, and Appeal of Allen, et al., 34 id. 627, as dispositive is misplaced. Neither of those decisions addressed the issue of respondent's compliance with '135.4(c)(4)(i).

Respondent, however, in its memorandum of law, requests that I dismiss the present appeal as moot. The Commissioner of Education will decide only cases where an actual controversy continues to exist, and will not render a decision concerning a dispute which subsequent events have laid to rest (Appeal of Capeless, 35 Ed Dept Rep 454). Respondent requests that I accept for filing with this appeal, pursuant to '276.5 of the Commissioner's Regulations, the affidavit of its superintendent of schools in which he states that while he believes that the present elementary physical education program fully complies with the applicable Commissioner's regulation, a plan has been developed to increase the level of supervision provided to elementary teachers assigned to teach physical education for the 1996-97 school year. A copy of the plan is attached to the affidavit. Respondent alleges that the plan not only meets but exceeds the requirements for direction and supervision set forth in the regulation. However, even if I were to accept the affidavit and plan pursuant to '276.5, there is nothing further in the record to indicate that the plan has in fact been implemented for the 1996-97 school year. Absent such indication, I decline to dismiss the appeal as moot.

THE APPEAL IS SUSTAINED.

END OF FILE.

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