Appeal of JESSICA BAUER WALKER, on behalf of her daughter S EREA , DR. WENDY MISTRETTA, on behalf of her daughter A NGELINA , and SAMUEL L. RADFORD, III, President of the District Parent Coordinating Council, from action of the Board of Education of the City S chool District of the City of B uffalo , Superintendent Pamela C. Brown , and board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris - Tigg, Florence D. Johnson, John Licata, Sharon Belton - Cottman, Mary Ruth Kapsiak, Carl Paladino, and James M. Sampson, regarding physical education.

Decision No. 16,609

(April 24, 2014)

Rashond r a M. Martin, Esq., attorney for respondents

KING, JR., Commissioner. -- P etitioner s appeal the actions of the Board of Education of the City School District of the City of Buffalo (“board”) , superintendent Pamela C. Brown (“superintendent”) , and individual board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris - Tigg, Florence D. Johnson, John Licata, Sharon Belton - Cottman, Mary Ruth Kaps iak, Carl Paladino, and James M. Sampson ( collectively “respondents”), regarding the provision of physical education . The appeal must be dismissed.

Petitioners Walker and Mistretta are the parent s of elementary school student s in respondent s ’ district . Petitioner Radford is president of the District Parent Coordinating Council (“DPCC”), which, according to petitioners, is a “Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public Schools’s [sic] School Based Planning Shared Decision Making Policy .” Petitioners allege that respondent s do not provide the required amount of physical education to elementary school students in viola tion of 8 NYCRR § 13 5.4. 

According to the petition, petitioner Walker’s first - grade daughter, Serea, receives one 30 - minute session of physical education every six - day “cycle,” which is less than the amount of physical education required under 8 NYCRR §135.4 for students in k indergarten through third grade ( i.e. , daily participation totaling a minimum of 120 minutes each week ) . Petitioners further allege that p etitioner Mistretta’s fourth - grade daughter, Angelina, receiv e s two 45 - minute sessions of physical education each six - day “cycle , ” which is less than the amount of physical education required under 8 NYCRR §135.4 for students in grades four through six ( i.e. , a minimum of three times each week , totaling a t least 120 minutes per week ) . Petitioners claim that , despite the ir “longstanding efforts” to make respondents comply with 8 NYCRR §135.4 , respondents have failed to do so. This appeal ensued.

Petitioners assert that, as a result of respondents’ fail ure to comply with 8 NYCRR §135.4, “ petitioners, their children, and those similarly situated, ” have suffered irreparable harm. Petitioners request a determination (a) t hat respondents have failed, and continue to fail , to comply with 8 NYCRR §135.4; (b) a ppointing a “S pecial M aster” at respondents ’ expense “ to develop a C orrective Action Plan for the Buffalo Public Schools that brings the district into immediate compliance with [ 8 NYCRR §135.4 ] and with the authority to monitor such compliance o v er the next three years ” ; “ and/or ” (c) direc ting respondents to “ immediately b udget and plan for compliance with [ 8 NYCRR §135.4 ] by th[e] start of the 2014 - 2015 school year.”

Respondents generally deny that they violated the Commissioner’s regulations and assert two affirmative defenses: that the petition fails to set forth facts alleging a cause of action and that the official actions of respondents constitute a good faith exercise of discretion and judgment, “ for which respondents and their employees, agents, or representatives are immune . ” As an initial matter, the appeal must be dismissed to the extent petitioner s attempt to assert claims on behalf of students other than the children of petitioners Walker and Mistretta . Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 ( see Educa tion Law §311[3 ]). 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, personal or property rights ( Appeal of Waechter , 48 Ed Dept Rep 261, Decision 3 No. 15,853; Appeal of Erickson , 47 id . 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal ( Appeal of Waechter , 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson , 47 id . 261, Decision No. 15,689). While petitioner s Walker and Mistretta have standing to bring this appeal on behalf their own daughters, they lack standing to assert the rights of others ( Appeals of Giardina and Carbone , 43 Ed Dept Rep 395, Decision No. 15,030; Appeal of Gilmore and Jordon - Thompson , 42 id . 334, Decision No. 14,874).

In this regard, I also note that petitioners have failed to establish that petitioner Radford has standing to maintain the instant appeal. Indeed, the only all egation in the petition pertaining to petitioner Radford is that he is president of the DPCC, “with the DPCC being a Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 31 70 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy . ” Petitioners did not provide a copy of Board Policy # 3170 or the “ Shared Decision Making Policy , ” n or do they explain how the provisions of the regulations or po licies cited give Radford standing to maintain this appeal . It is well settled that an unincorporated association lacks standing to maintain an appeal under Education Law §310 ( Appeal of Torres , 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo , 46 id . 266, Decision No. 15,504), and petitioners have failed to demonstrate that the DPCC nonetheless has standing to challenge the actions complained of in this appeal. Petitioners also do not allege any individual i njury to Radford or his children, if an y, as a result of the alleged failure to provide the requisite physical education.

Moreover, while §100.11(d) of the Commissioner’s regulations specifies that “any aggrieved party who participated in the development” of a district’s shared decision - makin g plan may appeal an action of the board in “adopting, amending, or recertifying” such plan, and that an appeal may lie where a board “fails to provide for consultation with, and full participation of, all parties in the development of the plan” as require d by the regulation, petitioners have asserted no such claims in this appeal. Therefore, the appeal must be dismissed as to petitioner Radford ( see e.g. , Appeal of Kackmeister , 39 Ed Dept Rep 466, Decision No. 14,285). 

To the extent petitioner s seek to ma intain the appeal as representatives of a class of students, class status is denied. An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al. , 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al. , 48 id . 73, Decision No. 15,797). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class ( Appeal of Pollicino, et al. , 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al. , 48 id . 73, Decision No. 15,797). Petitioner s ha ve no t made this showing. In fact, the petition does not address the requisite sta ndard at all. While petitioners state generally that “the aggrieved parents in the Buffalo Public Schools are so numerous , upwards of 11,000 children, that joinder of all member s is impracticable,” it is unclear from the record who the students are and whether they share all questions of law and fact at issue in this appeal. Therefore, class status is denied.

Turning to the merits, respondents contend that the petition fails to set forth facts alleging a cause of action upon which relief may be granted . In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which pet itioner seeks relief (8 NYCRR §275.10; Appeal of Aversa , 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen , 48 id . 354, Decision No. 15,884; Appeal of P.M. , 48 id . 348, Decision No. 15,882 ).

Petitioners Walker and Mistretta a llege that respondent s do not provide their elementary school children with the amount of physical education required by the Commissioner's regulations. Section 135.4(a) re quires a board of education to “ develop and implement school district plans to provide physical educat ion experiences for all pupils as provided in this section .” Section 135.4(c)(2)(i)(a) provides as follows:

(2) Required instruction.

(i) Elementary instructional program — grades K through 6. Pupils in grades K - 6 shall participate in the physical education p rogram as follows:

(a) all pupils in grades K - 3 shall participate in the physical education program on a daily 5 basis. All pupils in grades 4 - 6 shall participate in the physical education program not less than three times each week. The minimum time devoted to such programs (K - 6) shall be at least 120 minutes in each calendar week, exclusive of any time that may be required for dressing and showering ;....

Petitioners assert that the amount of physical education offered by respondents is less than that required by 8 NYCRR §135.4, and that, as a result, petitioners Walker and Mistretta and their children will suffer irreparable harm. In support of this assertion, petitioners allege that (1) petitioner Walker’s daughter, Serena , is enrolled in first grade and rece ives physical education only once each six - day cycle for 3 0 minutes; and (2) p etitioner Mistretta’s daughter, Angelina, is enrolled in fourth grade and receives physical education only twice each six - day cycle for 45 minutes . However, the record before me fails to est ablish that the amount of physical education actually received by these students is the amount alleged in the petition.

In their answer, respondents deny knowledge or information sufficient to form a belief as to the amount of physical education Serena and Angelina receive , and deny that the amount of physical education offered violates 8 NYCRR § 135.4 . A denial of knowledge or information sufficient to form a belief is a form of denial ( see e.g. , N.Y. Civil Practice Law and Rules § 3018[a] ; 8 NYCRR §275.12[a] ). Thus, by their answer, respondents effectively deny petitioner’s allegations regarding the amount of physical education the students receive. Petitioners did not submit a reply or any other evidence to refute respondents’ denials.

Moreover, other than petitioners’ conclusory assertions, the petition contains no evidence documenting a ny class schedules or the amount of physical education the students receive . Rather, p etitioners submit two exhibits in support of their petition: an a ffidavit of “medical expert,” Kathleen Grimm, M.D., and the district ’s wellness policy. Neither exhibit substantiates petitioners’ factual allegations regarding the amount of physical education their children receive . Indeed, while petitioners claim that the medical expert’s affidavit demonstrates that petitioners and their children will suffer irreparable harm as a result of respondents’ alleged failures , it is notable that they do not claim that the affidavit d emonstrate s that 6 respondents have actually failed to provide the requisite amount of physical education. P etitioners also submit the district’s wellness policy to demonstrate that the policy “incorporates compliance” with 8 NYCRR §135.4. However, the wellness policy outlines the nutritional goals of the district and only generally refers to the importance of physical education. Petitioners present only vague, conclusory statements regarding the provision of physical education, with no factual proof or substantiating documentation. Accordingly, o n this record, I cannot find t hat respondents have violated 8 NYCRR §135.4 ( s ee e.g. , Appeal of Leman and Sluys , 39 Ed Dept Rep 330 , Decision No. 14,252; Appeal of Razzano , 38 id . 782, Decision No. 14,142). Petitioners have failed to meet their burden of demonstrating a clear legal right to the relief requested and their b urden of establishing the facts upon which they seek relief . Accordingly, the appeal must be dismissed.

In light of this disposition, I need not address the parties’ remaining conten tions. However, I am compelled to comment on the manner in which respondents have answered the petition. In their answer, respondents merely deny knowledge or information sufficient to form a belief as to the amount of physical education instruction rece ived by petitioners’ children and submit no affidavits or any documentary evidence in support of their answer. However, I note that Education Law §1709(5), which is made applicable to respondents by Education Law §2554(1), requires that the board “ make p r ovision for the instruction of pupils in all subjects in which such instruction is required to be given under the provisions of article seventeen” of the Education Law. Education Law §803 (a) , which is contained in Article 17, requires that students receiv e physical education instruction “under the direction of the commissioner of education as the regents may determine,” and Part 135 of the Commissioner’s regulations sets forth the standards and requirements for such instruction. Respondents’ denial of kno wledge or information regarding the amount of required physical education instruction offered to petitioners’ children – who the record indicates attend elementary school in respondents’ district – appears to be disingenuous . Respondents are responsible f or ensuring that the Buffalo City School District complies with 8 NYCRR § 135.4 and if they do not know whether petitioners ’ children are receiving the required physical education instruction, it is their duty to find out. Respondents are advised to make 7 r easonable efforts in the future to learn the facts necessary to prepare a meaningful response to such allegations.

Although I am constrained to dismiss the appeal because petitioners have not met their burden of proof, I take administrative notice that the district’s official website contains an online “Superintendent Parent Complaint Form” for the submission of “[p]arent and community concerns and complaints regarding any facet of the [district]” ( see Appeal of Wright , 52 Ed Dept Rep, Decision No. 16,457; Appeal of Wolfley, et al. , 50 id . , Decision No. 16,225). In light of the facts and circumstances presented in this appeal, including respondents’ denial of knowledge or information sufficient to form a belief as to the amount of physical education instruc tion received by petitioners’ children, petitioners Walker and Mistretta are encouraged to submit a complaint form, and respondents must fully consider and address any such complaints submitted.

Finally, pursuant to §276.6 of the Commissioner’s regulation s, I take administrative notice of the official records of the State Education Department (“Department”), which indicate that the district d oes not have a physical education plan on file with the Department as required by §135.4 of the Commissioner’s regul ations. Accordingly, I am directing my Office of Curriculum and Instruction to provide guidance and technical assistance to the district as it develops such plan in accordance with the regulations , for submission to the Department no later than June 30, 2 014 .

THE APPEAL IS DISMISSED.

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