Appeal of Maryann Gallagher, on behalf of her children Margaret, Allyson and John Blackburn, from action of the Board of Education of the Ossining Union Free School District regarding the distribution of textbooks.

Decision No. 15,629

(August 13, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Susan M. Gibson, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges actions of the Board of Education of the Ossining Union Free School District (“respondent”) pertaining to the loan of textbooks.  The appeal must be sustained in part.

Petitioner and her three children reside in respondent’s district.  Petitioner’s children attend Hackley School (“Hackley”), a nonpublic school.  By letter dated June 15, 2006, petitioner requested the loan of textbooks to her children required by Hackley School for the 2006-2007 school year.  The district purchase clerk (“clerk”) informed petitioner that the district would loan the children books valued up to a maximum amount of approximately $66 per child.

By letter dated July 2, 2006 to respondent and its superintendent, petitioner expressed her belief that placing a dollar limit on the amount the district would spend on textbooks for each of her children was not equitable and violated Education Law §701.  Respondent’s executive director of finance and operations (“executive director”) contacted petitioner indicating that the district was reviewing its existing inventory of books and consulting with its attorney.  At the end of July 2006 the clerk informed petitioner that the district would loan her children all of the books requested in the June 15, 2006 letter with the exception of Alice in Wonderland.

In early August 2006, the clerk notified petitioner that the district had reconsidered its position and would loan her children books valued up to a maximum amount of $66 per child.  On August 15, 2006, the executive director confirmed respondent’s position.

On August 16, 2006, petitioner requested that the district loan her children six science books, a Spanish textbook and a workbook valued at $214.58.  The clerk informed petitioner that the district would purchase these books and loan them to her children.  On August 16, 2006 petitioner purchased new and used books required by Hackley valued at $441.90.  This appeal ensued.

Petitioner alleges that delays and the reversal of the district’s position necessitated that she purchase textbooks for her children.  Petitioner requests that I direct the district to purchase from her and then loan back to her the textbooks she purchased for her children.  Petitioner also requests that I require the district to loan her children all textbooks she requests in future years while her children attend nonpublic schools within the district.

Respondent alleges that petitioner fails to state facts sufficient to constitute a basis for relief and that its method of distributing textbooks is fair and equitable within the meaning of Education Law §701.  Respondent also contends that Education Law §701 provides for the loan of textbooks owned by a district, not for the reimbursement of the cost of textbooks purchased by individuals.  Finally, respondent alleges that petitioner’s request that the district loan her all textbooks she requests in future years would be impermissible under Education Law §701.

Section 701 of the Education Law and §21.2 of the Commissioner’s regulations governs textbook purchases and loans.  By statute, boards of education are required to purchase and to loan textbooks to all resident children enrolled in public or nonpublic schools (Education Law §701[3]).  However, no school district was required to purchase textbooks in 2006-2007 in excess of the amount equal to $57.30 multiplied by the number of resident pupils (i.e. the amount of State textbook aid to which the district is entitled) (seeNew York State Textbook Loan Program: Recommended Procedures for Textbook Purchases Loans and Inventory Control, January 2003).  Nevertheless, all textbooks, whether previously owned or newly acquired by a district must be loaned to resident children enrolled in public and nonpublic schools on an equitable basis (Education Law §701[4]; 8 NYCRR §21.2[c]; Appeal of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528).

Respondent’s executive director avers that the allocation for the appropriation of funds for the purchase of textbooks is determined by multiplying the projected number of resident students in each building, whether public or nonpublic, by $57.30.  For example, Ossining High School had a projected 2006-2007 enrollment of 1,279 students.  That number, multiplied by $57.30 would result in an allocation of $73,286 to Ossining High School for textbooks for the 2006-2007 school year.  This formula of allocating textbooks does not meet the requirement that textbooks be distributed on an equitable basis (Education Law §701[4]; 8 NYCRR §21.2[c]; Appeal of Gross, 25 Ed Dept Rep 382, Decision No. 11,618; Appeal of Sennert, et al., 15 id. 314, Decision No. 9189).  Respondent may not establish for each building an absolute ceiling of expenditures beyond which it will not lend new textbooks, because a per building limitation might not - and in most cases would not - result in an equitable distribution of textbooks to all students residing in the district (Appeal of Gross, 25 Ed Dept Rep 382, Decision No. 11,618; Appeal of Sennert, et al., 15 id. 314, Decision No. 9189).

The record does not contain a statement of respondent’s textbook loan practice with respect to Hackley which, respondent alleges, refuses to maintain a textbook inventory with the district.  It appears, however, that respondent applied inconsistent policies to petitioner’s request for textbooks.  Respondent initially agreed to loan petitioner’s children books valued at $66 per child.  Subsequently, it agreed to loan her all of the books requested with one exception.  Subsequent to that, respondent reconsidered its position and indicated it would loan petitioner’s children books valued up to a maximum amount of $66 per child.  Finally, respondent agreed to loan petitioner’s children six science books, a Spanish textbook and a workbook all valued at $214.58. 

A board does not discharge its textbook loan responsibilities merely by providing a set dollar amount worth of textbooks to each student (Appeal of Caunitz, et al., 30 Ed Dept Rep 396, Decision No. 12,510; Appeal of Gross, 25 id. 382, Decision No. 11,618).  Instead, a board of education must determine its need for new textbooks each year by compiling all requests for textbooks in all buildings and comparing such requests with existing inventory (Appeal of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528; Appeal of Gross, 25 id. 382, Decision No. 11,618).  If the existing supply of textbooks owned by the district is insufficient to meet the needs of resident pupils in public and nonpublic schools, the board must purchase additional textbooks, but it is not required to expend more than the amount of textbook aid available for that purpose (for 2006-2007 $57.30 multiplied by the resident public and nonpublic enrollment).  A board of education may appropriate an amount in excess of the required minimum for purchase of textbooks with the approval of voters in those districts in which the budget by law must be approved by voters (Matter of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528).  In the event that an appropriation for purchase of textbooks does not permit the purchase of all books required, the board must adopt a procedure that will ensure the equitable distribution of textbooks available (Matter of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528; Appeal of Gross, 25 id. 382, Decision No. 11,618).  A board must determine which categories of textbooks can be loaned free to both public and nonpublic pupils within the resources available.  State Education Department (“Department”) Guidelines cite decisions not to provide consumable workbooks in certain subject areas or to pupils in certain grade levels as examples of equitable treatment (New York State Textbook Loan Program: Recommended Procedures for Textbook Purchases, Loans and Inventory Control, January 2003).

To the extent that respondent’s textbook loan policy establishes, for each building, an absolute ceiling of expenditures beyond which it will not lend new textbooks, and or specifies a per-student dollar limit on textbook loans, it is inconsistent with the Education Law, Commissioner’s regulations and Department guidelines.  Therefore, I direct the district to review its policies, procedures and practices, and revise them as necessary, to bring them into compliance with the law as discussed herein.

For further relief, petitioner requests that respondent purchase from her the textbooks which she purchased and subsequently loan those textbooks to her children.  With respect to this request, I must dismiss petitioner’s claim.  Although petitioner does not categorize her demand as a request for reimbursement, I find her categorization to be a matter of semantics.  The fact that petitioner couches her demand under the guise of a purchase and loan of textbooks does not negate the fact that she is now seeking reimbursement for sums she expended.  The statute provides for the loan of textbooks owned by the public school district, not for the reimbursement of textbooks purchased by individuals.  Therefore it is not permissible for respondent to reimburse petitioner for the textbooks she purchased for her children (Matter of Kelly, 35 Ed Dept Rep 235, Decision No. 13,528; Matter of Williams, et al., 7 id. 82, Decision No. 7831).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

It is ordered that the Ossining Union Free School District hereafter comply with the provisions of Education Law §701 and §21.2 of the Commissioner’s regulations.

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