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Decision No. 18,133

Appeal of MATTHEW and JENNIFER MOYE, on behalf of their child, from action of the Board of Education of the City School District of the City of Rome regarding home instruction.

Decision No. 18,133

(June 13, 2022)

The Law Office of Sean C. Eccles, attorneys for petitioner, Sean C. Eccles, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Heather M. Cole, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Rome (“respondent”) that the individualized home instruction plan (“IHIP”) they submitted for their child (“the student”) for the 2021-2022 school year did not meet the requirements of Commissioner’s regulation section 100.10 (“section 100.10”).  The appeal must be dismissed. 

On August 9, 2021, petitioners advised respondent of their intent to educate the student at home during the 2021-2022 school year and submitted an IHIP for review.  By letter dated August 30, 2021, respondent’s director of counseling services informed petitioners that a determination could not be made regarding the adequacy of the IHIP until it included instruction concerning acquired immune deficiency syndrome (“AIDS”).  By email dated September 15, 2021, petitioners requested that respondent approve the IHIP because AIDS education is not required by section 100.10.

By letter dated September 22, 2021, respondent’s superintendent informed petitioner that the IHIP could not be approved because it did not comply with section 100.10.  Petitioners appealed to respondent, which upheld the superintendent’s decision.  This appeal ensued.

Petitioners assert that the requirement for AIDS education in Commissioner’s regulation section 135.3 (“section 135.3”) does not apply to homeschooled students.  As evidence, petitioners contend that the regulatory provision governing home instruction, section 100.10, does not explicitly incorporate the definition of “health instruction” in section 135.3.  Petitioners seek approval of their proposed IHIP as submitted.

Respondent argues that its determination was made in accordance with applicable regulations and guidance issued by the State Education Department (“the Department”). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

I am unpersuaded by petitioners’ argument that section 135.3 does not apply to homeschooled students.  Section 100.10 (e) identifies “health education” as a subject of instruction that must be included in an IHIP.  “[H]ealth education,” in turn, is defined by 8 NYCRR 135.3 (b), which requires that elementary and secondary health education curriculum include age-appropriate instruction concerning the nature, methods of transmission, and methods of prevention of AIDS.  While petitioners disagree with this definition of “health education,” they do not advance an alternative definition or indicate where one might be found. 

Petitioners additionally argue that references to “elementary schools” and “secondary schools” in section 135.3 (b) reveal that the definition of “health education” is limited to public schools.  I disagree.  While the regulation distinguishes between the instruction to be provided in elementary and secondary schools, the basis for that distinction is not the brick-and-mortar buildings themselves, but the age of the students therein.  Additionally, petitioner’s argument is belied by other portions of section 135.3, which explain how instruction shall be provided within “public schools” and requiring that “public schools” develop AIDS advisory councils.  If the entire regulation concerned only public schools, these phrases would be unnecessary.  The language of a law or regulation should be interpreted so as “to avoid rendering any of its language superfluous” (Matter of Monroe County Pub. School Dists. v Zyra, 51 AD3d 125, 130 [4th Dept 2008]).

Finally, while petitioners do not disclose the nature of their opposition to AIDS instruction, I note that a religious exemption from the study of health and hygiene is available pursuant to Education Law § 3204 (5) and 8 NYCRR 16.2.

In sum, petitioners have failed to meet their burden of proving a clear legal right to the relief requested, and the appeal must be dismissed.  To the extent they are not specifically addressed herein, I find petitioners’ remaining arguments to be without merit.