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Decision No. 14,229

Appeal of NORA CARNEY, on behalf of ALYSON CARNEY, from action of Board of Education of the West Irondequoit Central School District regarding curriculum.

Decision No. 14,229

(October 13, 1999)

Harris Beach & Wilcox, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the West Irondequoit Central School District ("respondent") to provide her daughter with alternate assignments to portions of the English curriculum. The appeal must be dismissed.

During the 1998-99 school year, petitioner’s daughter, Alyson, was enrolled in ninth grade English in respondent’s district. In September of 1998, petitioner requested that Alyson be exempt from instruction related to the books Inherit the Wind and Man the Myth Maker. In response, Alyson was provided with an alternate independent study assignment that resulted in her absence from English class for eleven weeks.

Petitioner subsequently requested that Alyson be provided with alternate instruction for that portion of the English curriculum related to the books Of Mice and Men, and A Separate Peace. By letter dated December 28, 1998, respondent’s Assistant Superintendent for Instructional Services denied petitioner’s request for exemption, advised petitioner that she could challenge the district’s use of the materials and provided her with a copy of the necessary forms to do so. On January 12, 1999, petitioner formally requested that the district either reconsider its decision to use the materials in question or provide her daughter with alternate assignments.

In accordance with district policy, respondent convened the District Curriculum Council ("the Council"), comprised of seventeen members of the district’s "teaching and leadership staff" to consider petitioner’s request and recommend whether the challenged materials should remain in the curriculum. Each Council member read the challenged texts. The Council discussed the materials, consulted outside reviews of them and surveyed a number of other schools to determine whether the texts are used in their curricula. Based on its review, the Council voted unanimously in favor of retaining all of the challenged materials in the curriculum. In accordance with district policy, the superintendent of schools also appointed a seven member review committee ("the Committee") comprised of school personnel, students and community representatives to review the challenged curriculum books. The Committee also conducted a thorough review of these materials and voted unanimously in favor of retaining them. The Council and the Committee submitted a joint report to the superintendent recommending that the materials remain in the curriculum.

By letter dated May 18, 1999, the superintendent denied petitioner’s request to have the books excluded from the curriculum based on the joint recommendation. Petitioner appealed this determination to respondent. By letter dated June 8, 1999, Robert J. Heinkel, respondent’s president, informed petitioner that respondent had voted unanimously to affirm the Superintendent’s decision. This appeal ensued.

Although petitioner does not allege in her six-paragraph petition that respondent’s decision was improper, she requests that respondent either provide her daughter with an alternative curriculum, or adjust her daughter’s English 9 grade. Although it is not clear from the record, it appears that petitioner’s daughter received a zero on certain assignments she failed to complete that were related to the objectionable material.

Respondent raises two procedural objections, contending that because petitioner moved from the district on June 1, 1999, she lacks standing and her appeal is moot. As to the merits, respondent contends that it properly exercised its discretion in determining that the challenged works should remain in the English 9 curriculum.

Turning first to respondent’s procedural objections, the Commissioner of Education will only decide matters in actual controversy and will not ordinarily render a decision on a state of facts that no longer exist or which subsequent events have laid to rest (Appeal of Rollins, 38 Ed Dept Rep 192, Decision No. 14,012; Appeal of Harvey, 37 id. 194, Decision No. 13,840). In addition, an individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil or property rights (Appeal of Larry B., 37 Ed Dept Rep 632, Decision No. 13,944; Appeal of Folsom, 37 id. 347; Decision No. 13,876).

To the extent petitioner challenges respondent’s refusal to provide her daughter with alternative assignments for portions of the English 9 curriculum, the appeal is moot because the school year has ended (see, Appeal of Wright, 38 Ed Dept Rep 756, Decision No. 14,134; Appeal of Krom, 37 id. 459, Decision No. 13,905). In addition, because petitioner is currently neither the parent of a student attending respondents’ schools nor a district resident, she lacks standing to challenge the district’s choice of curriculum materials (see, Appeal of Woodrow, 37 Ed Dept Rep 683, Decision No. 13,957; Appeal of Landgrebe, 32 id. 49, Decision No. 12,754). However, petitioner also alleges that her daughter’s grade was adversely affected by her failure to complete assignments related to the objectionable materials, and seeks to have the grade adjusted. Accordingly, to the extent petitioner challenges her daughter’s grade, a live controversy exists and I will not dismiss the appeal as moot (see, Appeal of Wright, supra; Appeal of Krom, supra; Appeal of a Student with a Disability, 36 Ed Dept Rep 273, Decision No. 13,723).

The appeal, however, must be dismissed on the merits. Education Law ""701(1) and 1709(4) authorize a board of education to designate the textbooks to be used in its schools. The parents of a student cannot compel a board of education to use a particular book or to discontinue the use of a particular book (Appeal of Harvey, supra; Appeal of Smith, 34 Ed Dept Rep 346, Decision No. 13,335; Matter of Mitchell, 13 id. 228, Decision No. 8,802).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of Morris, et al., 38 Ed Dept Rep 427, Decision No. 14,066). Petitioner has failed to establish that respondent’s decision to deny her daughter alternate assignments was arbitrary or capricious. The record reflects that in accordance with district policy, respondent convened two committees, each of which conducted a thorough review of the challenged materials and unanimously recommended that they remain in the curriculum. The committees’ joint report contains a detailed analysis of each of the works in question and concludes, among other things, that they are appropriate for the English curriculum. Respondent considered the committees’ findings in denying petitioner’s request for an alternate curriculum.

The authority of a board of education to prescribe the course of study in its schools is broad (Education Law "1709[3], "1804[1]; Appeal of Harvey, supra; Appeal of Smith, supra). Based on the record before me, I find no basis to conclude that respondent’s decision to deny petitioner’s daughter an alternate curriculum was arbitrary or capricious.