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Decision No. 15,191

Appeal of LISA McLOUGHLIN, on behalf of BONNIE McLOUGHLIN, and CATHY CARUSI, on behalf of KELLY CARUSI, from action of the Locust Valley Central School District regarding a budget proposition.

Decision No. 15,191

(March 29, 2005)

Ehrlich, Frazer & Feldman, attorneys for respondent, Kevin G. McMorrow, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the refusal of the Board of Education of the Locust Valley Central School District ("respondent") to place a budget proposition before the voters at the district's annual meeting on May 17, 2005. The appeal must be dismissed.

In February 2004, the International Baccalaureate Organization ("IBO") in Geneva, Switzerland, approved respondent's high school to offer the curriculum of the International Baccalaureate ("IB") Diploma Programme, a pre-university course of study. The high school began to offer the program in September 2004 for students in the 11th and 12th grades.

Petitioners allege that respondent violated their civil, personal and property rights by refusing to place before the voters a proposition on whether respondent should be authorized to conduct and levy taxes to fund the IB program. Petitioners maintain that the IB program is a discretionary program similar to driver education, which was submitted to the voters for approval. They argue, therefore, that respondent has set a precedent for placing propositions on discretionary programs before the voters.

Petitioners also claim that respondent violated their rights by using public funds to enter into a contract with the IBO that grants exclusive jurisdiction over disputes to courts in Switzerland. They also allege that respondent is violating the New York State Student Record Privacy Act (" Privacy Act") by allowing personal student data to be transmitted through the IBO Online Curriculum Center to non-secure countries. Petitioners ask that a proposition to fund the IB program be allowed on the ballot at the May 17, 2005 election. They also seek determinations regarding respondent's legal authority to allocate public monies to the IBO and whether the privacy of student records is being violated.

Respondent contends that the petition is untimely and fails to state a claim for which relief can be granted. Respondent further alleges that petitioners lack standing. With regard to the merits, respondent asserts that it was not required to present a proposition on the IB program to the voters because it is a matter of curriculum, which is within the board 's discretion. Respondent also asserts that the previous proposition concerning driver education is irrelevant and does not establish any precedent. Respondent contends that the jurisdictional waiver clause in the IBO contract relates only to the application process and since its application has been approved, petitioners' claims are moot. Finally, respondent denies that there is a State Privacy Act. To the extent petitioners intended to refer to the federal Family Education Rights and Privacy Act ("FERPA"), the respondent avers that the Commissioner lacks jurisdiction.

I must first address several procedural issues. The purpose of a reply is to respond to procedural defenses or new material contained 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 or exhibits that should have been in the petition (Appeal of O'Brien, et al., 42 Ed Dept Rep 317, Decision No. 14,868; Application of Bean, 42 id. 171, Decision No. 14,810). Accordingly, while I have reviewed petitioners' reply, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses in respondent's answer.

An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16). Respondent contends that the appeal is untimely because the budget authorizing the district's funding of the IB program was approved on June 19, 2004 and the program commenced on September 1, 2004, but petitioners did not initiate this appeal until November 30, 2004. Petitioners counter that respondent denied their request for a proposition by letter dated November 8, 2004, and they served their petition within 30 days of the denial, on November 30, 2004. Under these circumstances, I decline to dismiss the appeal as untimely.

Pursuant to Education Law �310, an individual may not maintain an appeal unless aggrieved in the sense that she has suffered personal damage or injury to her civil, personal or property rights. Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeals of Giardina and Carbone , 43 Ed Dept Rep 395, Decision No. 15,030; Appeal of Murphy, et al., 39 id. 562, Decision No. 14,311; Appeal of Goldin, 38 id. 322, Decision No. 14,044). However, district residents have standing to challenge an alleged illegal expenditure of district funds (Appeals of Giardina and Carbone, supra). Therefore, to the extent that petitioners are district residents who challenge whether the IB program is an appropriate use of district funds and whether district residents have a right to place a budget proposition before the voters, petitioners have standing (Appeals of Giardina and Carbone , supra; Appeal of Goldin, supra). However, since their children do not currently participate in the program, I agree with respondent that petitioners lack standing regarding the IBO's rules governing waivers, use of its web sites and use of student information. Accordingly, those portions of the appeal must be dismissed for lack of standing.

Boards of education have broad authority to prescribe the course of study in the schools of the district (Education Law �1709[3]; Appeal of Murphy, et al., supra; Appeal of Graham, 39 Ed Dept Rep 498, Decision No. 14,292; Appeal of Smith, 34 id. 346, Decision No. 13,335). Curriculum decisions are not to be made by district voters. Indeed, because the Legislature has given boards of education the authority to prescribe the curriculum in their schools, it is inappropriate to put a proposition before the voters that would override or limit the board's authority, as petitioners sought to do here (Appeal of Lombardo, 38 Ed Dept Rep 676, Decision No. 14,115).

The United States Supreme Court has confirmed that school authorities enjoy broad discretion in regulating matters of curriculum (Bd. of Educ., Island Trees U.F.S.D. No. 26 v. Pico, 457 US 853, 869). I will not substitute my judgment for that of a board on curriculum issues absent evidence that the board has acted in an arbitrary, capricious or unreasonable manner (Appeal of Smith, supra). I can make no such finding on the record before me.

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