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Decision No. 14,394

Appeal of DEIDRA DIMASO, from action of the Board of Education of the Wappingers Central School District regarding curriculum.

Decision No. 14,394

(June 19, 2000)

Shaw & Perelson, LLP, attorneys for respondent, Michael K. Lambert, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the Board of Education of the Wappingers Central School District ("respondent") to retain the book Bless Me, Ultima, by Rudolfo Anaya, in the ninth grade curriculum. The appeal must be dismissed.

At the time of this appeal, petitioner’s daughter was a ninth grade student at John Jay High School in the Wappingers Central School District. In October 1999 she was enrolled in an interdisciplinary course in English and Social Studies where Bless Me, Ultima was assigned reading. Petitioner states that she happened to read part of the book when her daughter brought it home and discovered that it contains "vulgar and obscene language, sexual fantasies [and] inaccurate and prejudicial representations of Catholic doctrine." Petitioner told school staff she did not want her daughter to read the book or participate in discussing it. After a number of letters, phone calls and meetings between petitioner and school staff, her daughter was assigned to read an alternate book and work in another classroom while her class discussed Bless Me, Ultima.

Nevertheless, petitioner sought to have the book removed from the curriculum. On November 3, 1999, she submitted a "Request for Reevaluation of Instructional Materials." Petitioner read her Request for Reevaluation to respondent board at its November 9, 1999 meeting.

Following the meeting, respondent’s superintendent directed the assistant superintendent for instruction to convene an adhoc Instructional Materials Review Committee. The committee included two teachers, two administrators, the district coordinator for Social Studies and Second Language, a librarian and a community/parent member. It met on November 15. Petitioner urged the committee to remove the book from the curriculum. The teacher who had assigned the book made an oral and written presentation supporting the book. The high school principal also submitted a letter in support of the book.

In its report to the superintendent, the committee unanimously recommended that the district continue to use Bless Me, Ultima in the English Language Arts curriculum. The committee found that the book possesses literary merit, does not misrepresent Catholicism and reflects strong family values. The committee also concluded that the book’s occasional harsh language was used appropriately and in context to support the various themes presented.

By letter dated November 22, 1999, the superintendent notified petitioner that he accepted the committee’s recommendation to keep Bless Me, Ultima in the high school curriculum. He also stated that the district needed to improve communication with parents regarding the content of assigned readings. He advised petitioner that he had directed the district’s English Coordinator to meet with English department teachers to address this. He instructed them to ensure that all parents are notified of any potentially objectionable language in assigned readings and advised that students may choose alternate texts. The superintendent also informed petitioner that she could appeal his decision to respondent.

By letter dated November 27, 1999, petitioner asked respondent to overturn the superintendent’s decision. She attended respondent’s November 30, 1999 meeting and read her letter to the board members. A local newspaper article dated December 5, 1999 incorrectly stated that respondent rejected petitioner’s challenge at its November 30 meeting. On December 7, 1999, petitioner commenced this appeal, in which she claims to challenge action respondent took at the November 30, 1999 meeting. In fact, respondent did not act on petitioner’s request to overturn the superintendent’s decision until December 20, 1999, when it denied the request. Petitioner’s request for interim relief also was denied on December 20, 1999.

Petitioner argues that Bless Me, Ultima should be removed from the curriculum because it contains obscene and vulgar language, sexual fantasies and inaccurate and prejudicial representations of Catholic doctrine. She also claims that the book initially was assigned to ninth graders without respondent’s approval. Petitioner asks me to declare that the school lacked authority to assign the book without respondent’s prior approval and to order respondent to remove the book from the approved reading list.

Respondent contends that Bless Me, Ultima was properly approved for use in district schools. It argues that the superintendent appropriately exercised his discretion when he denied petitioner’s request to remove the book from the curriculum. Finally, respondent asserts that the appeal is premature because petitioner commenced it before respondent took action on the superintendent’s decision.

I must address a preliminary issue. Petitioner submitted an "affidavit in response to affidavit in opposition to request for stay." This pleading contains new allegations and exhibits and was submitted without prior permission of the Commissioner of Education (8 NYCRR "276.5). Therefore, I have not considered it in making my determination. Additionally, petitioner's reply raises new arguments. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer, not to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Pappas, 39 Ed Dept Rep 310, Decision No. 14,246; Appeal of Houghton, 38 id. 777, Decision No. 14,141). Consequently, I have not considered the information contained in the reply which does not respond to respondent’s affirmative defenses or new material contained in the answer.

It is well established that the Commissioner of Education will not render advisory opinions or decide issues that have not yet become justiciable (Appeal of Lilly, 39 Ed Dept Rep , Decision No. 14,324; Appeal of Jacobson, 37 id. 75, Decision No. 13,808; Appeal of Sullivan, 23 id. 264, Decision No. 11,212). At the time petitioner commenced this appeal against respondent, respondent had not yet reviewed the superintendent’s decision to retain Bless Me, Ultima in the curriculum. Respondent argues that this renders the appeal premature. However, respondent affirmed the superintendent’s decision and denied petitioner’s appeal before it submitted an answer in this proceeding. Thus final action has been taken and the record before me is complete. In this circumstance, I will not dismiss the appeal as premature.

In an appeal to the Commissioner, 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 Lilly, supra; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioner has made conclusory allegations that the initial placement of Bless Me, Ultima on the ninth grade reading list was improper but has failed to submit evidence to support her claim.

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 Murphy, 39 Ed Dept Rep , Decision No. 14,311; Appeal of Graham, 39 Ed Dept Rep , Decision No. 14,292). 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 Carney, 39 Ed Dept Rep 255, Decision No. 14,229; Appeal of Harvey, 37 id. 194, Decision No. 13,840; Appeal of Smith, 34 id. 346, Decision No. 13,335).

Furthermore, the record shows that the Instructional Materials Review Committee afforded petitioner an opportunity to express her objections and conducted a thorough assessment of the book, including its themes and language. The committee concluded that the book possesses literary merit, reflects strong family values and uses occasional harsh language appropriately to support its themes. The committee unanimously recommended that Bless Me, Ultima remain in the curriculum. Upon reviewing the committee’s recommendations, the superintendent denied petitioner’s request to remove the book. He noted that the book appears on state and national lists of exemplary works and stated that he was reluctant to deny all students an opportunity to study the book based on one parent’s objection. The superintendent forwarded his decision and the committee report to respondent board. Respondent board then voted to affirm the superintendent’s decision and deny petitioner’s appeal. I find no basis in the record to reverse respondent’s determination.