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Decision No. 14,115

Appeal of LARRY LOMBARDO from action of the Board of Education of the Lynbrook Union Free School District regarding a proposed voter proposition.

Decision No. 14,115

(April 29, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman & Laura A. Ferrugiar, Esqs., of counsel

MILLS, Commissioner.--Petitioner, a resident and taxpayer of the Lynbrook Union Free School District, challenges the refusal of the Board of Education of the Lynbrook Union Free School District ("respondent") to place a proposition before the voters. The appeal must be dismissed.

On April 22, 1996, a district resident submitted a proposition to respondent for inclusion on the district's May 21, 1996 ballot. The proposition stated:

no course of study or program would be given to children that:

  1. Would undermine parental authority, the morals or the religion of any student, nor engage in any discussions that condones or promotes behavior that is prohibited by state and federal law. And,
  2. To minimize the risk of a negligence claim against the school, all "sex ed" programs and condom instructions will be available only to students whose parents or guardians have signed a release stating they are aware of the curriculum, and will hold the school district harmless if these programs have an adverse effect on their child’s behavior, emotional or physical health.

On April 23, 1996, respondent rejected the proposition. On April 24, 1996, respondent returned the proposition to the resident with notice that it is beyond the power of the voters to dictate curriculum. Petitioner appealed this determination on December 12, 1997.

Petitioner claims respondent improperly rejected the proposition. Petitioner contends that a board of education has authority to create "opt-in" curriculum programs enabling parents or guardians to selectively enroll their children in school courses if the curriculum meets with the parents' or guardians' approval. Accordingly, he claims the proposition should have been placed before the voters. Additionally, petitioner objects to respondent’s action in January 1997 increasing the number of signatures required to submit a proposition to 250. Petitioner contends this increase is unreasonable.

Respondent maintains that the appeal should be dismissed as untimely because the petition was brought more than 30 days following the challenged actions. In addition, respondent raises numerous other procedural defenses. Respondent also contends that it properly rejected the proposition attempting to dictate curriculum because curriculum is within the sole authority of the board of education.

As a threshold matter, the appeal is untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent rejected the proposition on April 23, 1996 and petitioner commenced this appeal on December 12, 1997 -- one year and six months after the challenged determination. Furthermore, petitioner alleges that he was a signatory to the proposition. As such, he was presumptively aware that the proposition was rejected as of the May 1996 election. Petitioner's belated decision to challenge this rejection is not a reasonable excuse for the delay. Accordingly, his claims regarding the proposition are untimely.

To the extent petitioner complains about respondent's January 1997 decision to increase the required number of signatures for a proposition, this claim must also be dismissed as untimely. Again, petitioner offers no reason for failing to commence his appeal until some eleven months later. Accordingly, the appeal is dismissed as untimely.

Even if I did not dismiss the appeal on procedural grounds, I am constrained to dismiss it on the merits. Boards of education have broad authority to prescribe the course of study on matters of curriculum (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Degroff, et al., 31 id. 332). Responsibility for making curriculum-related decisions rests with the board of education (Education Law "1709(3); Appeal of Fox, et al., 30 Ed Dept Rep 19). Moreover, petitioner is not entitled to an order directing or prescribing the courses of instruction for schools within the district (Appeal of Fox, supra).

The proposition at issue in this appeal would create amorphous standards that duplicate existing legal requirements. Clearly, respondent does not intend to promote behavior that is "prohibited by state and federal law". Moreover, requiring parental signatures as a prerequisite for student participation in courses would limit respondent's authority to prescribe the curriculum. Notwithstanding petitioner’s erroneous contention that the proposition was rejected on technical grounds, the record reflects that the proposition was rejected as beyond the power of the voters. Because the Legislature has vested boards of education with the authority to prescribe the curriculum to be followed in the schools of a district, it is inappropriate to place a proposition before the voters that seeks to limit that authority. Under these circumstances, I find that respondent properly rejected the proposition at issue in this appeal.

In light of this disposition, I will not address the parties' remaining contentions.