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Decision No. 15,152

Appeal of STEVEN P. SCHILDHORN, on behalf of his son DANIEL, from action of the Board of Education of the Windham-Ashland-Jewett Central School District regarding a physical education requirement.

Decision No. 15,152

(December 22, 2004)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Donald E. Budmen, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Windham-Ashland-Jewett Central School District ("respondent") to deny his son, Daniel, academic credit for participation in extracurricular sports programs. The appeal must be dismissed.

Daniel was an eleventh grade student at respondent�s high school during the 2003-2004 school year. His class schedule did not include a study hall, and, at respondent�s October 2003 meeting, petitioner requested that Daniel be excused from his physical education classes to attend study hall during those periods instead. Petitioner asked that Daniel be allowed to fulfill his physical education requirement by participating in several district extracurricular sports and a non-district sponsored year-round soccer league.

At its November 13, 2003 meeting, respondent denied petitioner�s request. Petitioner then requested a written response, and respondent�s interim superintendent, by letter dated November 17, 2003, stated that respondent had not approved the use of extracurricular activities for physical education credit. That letter also stated that respondent�s administrators had rearranged Daniel�s schedule to provide him with study halls by shifting Daniel�s physical education class to the Board of Cooperative Education Services ("BOCES") facility and using part of the time allotted to his automotive technology class. This appeal ensued.

Petitioner asserts that the Commissioner�s regulations mandate respondent to give Daniel physical education credit for participating in extracurricular athletics. Petitioner contends that respondent�s decision to reduce Daniel�s automotive technology class time in order to provide study halls may negatively affect his grades in that class. Petitioner requests that I interpret the regulation to require respondent to grant physical education credits for extracurricular athletics. Petitioner also asks that I approve Daniel�s extracurricular activities as equivalent to a physical education program for providing credits toward his graduation requirements.

Respondent asserts that its decision to require students to fulfill their physical education requirements through participation in physical education classes is rational, educationally sound and within its discretion. Respondent contends that Daniel�s revised schedule would provide him with physical education classes and study halls without compromising his ability to meet the automotive technology requirements. Respondent objects to petitioner�s reply and argues that the appeal is moot because Daniel has stopped participating in the district�s extracurricular sports programs.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR ��275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of General, 43 Ed Dept Rep 146, Decision No. 14,948; Appeal of Crosier, 42 id. 232, Decision No. 14,835). Therefore, while I have reviewed petitioner�s reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed in part as moot.The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of A.F., 44 Ed Dept Rep __, Decision No. 15,120; Appeal of N.S., 42 id. 190, Decision No.14,817). Petitioner admits that Daniel has withdrawn from the district�s extracurricular sports programs for which he was seeking physical education credit. Therefore, the appeal is moot as to petitioner�s request that Daniel be given academic credit for participation in those programs.

The appeal must be dismissed as to petitioner�s request that respondent be required to grant academic credit for participation in extracurricular athletic programs. At issue is �135.4(c)(2)(ii) of the Commissioner�s regulations which states, in pertinent part:

Secondary instructional program--grades 7 through 12. All secondary pupils shall have the opportunity for regular physical education, but not less than three times per week in one semester and two times per week in the other semester, taught by a certified physical education teacher, and all such pupils shall participate in the physical education program either:

(a) a minimum of three periods per calendar week during one semester of each school year and two periods during the other semester; or

(b) a comparable time each semester if the school is organized in other patterns; or

(c) for pupils in grades 10 through 12 only, a comparable time each semester in extraclass programs for those pupils who have demonstrated acceptable levels of physical fitness, physical skills, and knowledge of physical education activities; or

(d) for pupils in grades 10 through 12 only, a comparable time each semester in out-of-school activities approved by the physical education staff and the school administration; or

(e) as provided in an equivalent program approved by the Commissioner of Education.

Respondent states that it does not have standards to evaluate extracurricular programs and that it does not grant physical education credit for such activities. Respondent�s policy is that regular physical education classes provide important educational components that a student would not be taught merely by participating on athletic teams. Petitioner, on the other hand, argues that respondent does not have the choice to deny credit for extracurricular activities. Rather, petitioner asserts that it is mandatory for boards of education to recognize each of the options listed in the regulation as satisfying a student�s physical education requirement. I disagree.

To read such a requirement into the regulation would be at odds with Education Law �1709(3), which gives boards of education broad authority to prescribe courses of study. The decision as to what instructional programs are to be offered in schools within a district is within the discretion of the board of education (Appeal of Reilly, 20 Ed Dept Rep 191, Decision No. 10,373; Appeal of Talbot and Suskind, 10 id. 83, Decision No. 8,210). While the regulation permits certain alternative options, nothing in the regulation requires a board of education to recognize each of the options as meeting physical education requirements. Furthermore, the language of clauses (c) and (d) of �135.4(ii)(2)(ii), (which refer to "acceptable levels," and to approval by the school staff and administration) indicates that the district has discretion as to what extent it wishes to recognize such activities.

In this case, respondent elected not to permit the extracurricular option. Instead, it established a reasonable education policy that requires all students to earn physical education credits through respondent�s physical education curriculum. I find that it was wholly within respondent�s authority to do so.

Finally, petitioner contends that respondent�s decision to rearrange Daniel�s schedule so that he would have less class time in his automotive technology class would negatively impact Daniel� s grades in that class. Respondent states that Daniel would be able to meet all of his Automotive Technology class requirements with the modified schedule. In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief (8 NYCRR �275.10; Appeal of Ewart, 44 Ed Dept Rep __, Decision No. 15,127; Appeal of Brown, et al., 43 id. 231, Decision No. 14,980). Petitioner has not supported his contention with any evidence that Daniel�s academic performance would, in fact, be impacted. Petitioner has thus failed to meet his burden of proof on this issue.