Decision No. 12,883

(February 8, 1993)

SOBOL, COMMISSIONER.--Petitioners, eighteen individuals including parents, students, physicians, teachers and members of the AIDS/HIV Advisory Council, together with the United Federation of Teachers and two community groups, challenge a Resolution adopted by the Board of Education of the City of New York relating to the AIDS curriculum. The People for the American Way, representing over fifty individuals and community organizations, and the Association of the Bar of the City of New York, submit briefs amicuscuriae on behalf of petitioners. Robert Wagner, Jr., former president of the Board of Education of the City of New York, submits an affidavit amicuscuriae in support of respondent. Joseph McGovern, Chancellor Emeritus of the New York State Board of Regents, Nathan Glazer and James Coleman also submit amici on respondent's behalf. The appeal must be sustained.

On May 27, 1992, the Board of Education of the City of New York ("respondent" or "City Board") adopted Resolution 33 (the "Resolution") requiring all AIDS education programs in the New York City public schools to comply with the following rules:

The Resolution required the Chancellor to take all steps necessary to ensure full compliance with these provisions, including but not limited to these specific measures:

Petitioners contend that respondent adopted the Resolution without first consulting its AIDS Advisory Council, in violation of 8 NYCRR ''135.3(b)(2) and (c)(2)(i) of the Commissioner's regulations. They also claim that the Resolution impairs the ability of teachers to present appropriate and accurate AIDS lessons consistent with Commissioner's regulations, and intrudes on their professional judgment and discretion contrary to sound educational policy and principles of academic freedom. Petitioners challenge the Resolution on constitutional grounds as well and seek an order annulling the Resolution and declaring respondent's HIV/AIDS education program, in existence prior to the adoption of the Resolution, consistent with Commissioner's regulations.

Respondent counters that because its Resolution is almost identical to, and indeed closely derived from both Commissioner's regulations and the Board of Regents' Commentary mandating AIDS instruction, petitioners' claims are without merit. Although respondent admits that the Advisory Council never reviewed the Resolution prior to its adoption, the board claims that such consultation was unnecessary because the Resolution addresses many of the concerns and recommendations previously raised by the Council. Disputing petitioners' claims that its Resolution is unconstitutional or otherwise constitutes an improper intrusion into the classroom, respondent asserts that, barring a finding that its actions were arbitrary, capricious or contrary to law, the petition must be dismissed. In response to petitioners' claims that the Resolution will impair teachers' ability to stimulate classroom discussions, respondent clarifies that the Resolution applies only to written and oral instruction presented by teachers or outside contributors relating to AIDS prevention. In defining the term "instruction," respondent further explains that the Resolution does not extend to student initiated classroom discussions, role-playing exercises or other nondirective interactive activities.

The proper role of the AIDS Advisory Council (the "Council") is central to this dispute. Every board of education must establish a Council composed of parents, school board members, appropriate school personnel, and community representatives, including representatives from religious organizations, to make "recommendations concerning the content, implementation, and evaluation of an AIDS instruction program" (8 NYCRR ''135.3(b)(2) and (c)(2)(i)). The Board of Regents (the "Regents") mandated the creation and involvement of Councils because of the sensitive nature of the AIDS curriculum and the potential for controversy surrounding its adoption. Although the Council is advisory, it plays a critical role by providing "the broadest possible network of significant input and viewpoints" from a cross-section of the community, thus ensuring that the AIDS curriculum, once adopted, reflects community values and enjoys greater societal consensus (SeeNew York State School Bds Ass'n v. Sobol, 79 NY2d 333,340 [1992]). By mandating the Council's involvement in curriculum adoption and implementation, the Regents sought to create a forum to air divergent viewpoints which, if not considered and addressed, could divide a community and thwart the overall effectiveness of a curriculum intended to save lives through education. Thus, even though a board of education retains "the unfettered and nondelegable public responsibility and discretion to adopt or reject any advisory views in whole or in part" (id. at 341), a board may not dispense with its Advisory Council on matters central to the implementation of its instructional program. To permit a board to do so would effectively eliminate the role of the Council as established in regulation.

Respondent claims that the Resolution need not be reviewed by the Council because the Resolution simply reflects Commissioner's regulations and Regents policy. The claim is disingenuous: if the Resolution were identical to the regulations and the policy, there would be no need for a Resolution. While the Regents' policy on AIDS instruction and respondent's Resolution contain similarities, they differ in important respects. 8 NYCRR ''135.(3)(b)(2) and (c)(2)(i) provide, in pertinent part:

The Commentary of the Board of Regents adopted in July 1991 provides a general statement of policy and clarification that

The Resolution, however, provides that:

Unlike the Regents' Commentary, which requires that the AIDS curriculum stress abstinence as the most effective means of prevention, but which leaves broad and appropriate discretion to teachers as to how to teach that curriculum, respondent's language confines teachers in an instructional straitjacket. To ensure compliance with its dictates, educators would be compelled to count the number of times "abstinence" as opposed to "safe sex" is mentioned in the course of a single class (or portion of a class) relating to AIDS prevention, or to track with precision the time devoted to each topic. Under respondent's edict, teachers may never, in the course of a class period, distribute to students, regardless of their age, maturity or experience, a single article or pamphlet that fails to devote substantially more time and attention to abstinence, unless accompanied by one that does. Neither Commissioner's regulations nor Regents' Commentary entail such procedural rigidity. Thus respondent's argument that it could bypass its Advisory Council because the Resolution mirrors Regents policy and regulations must fail. Moreover, the Resolution's impact cannot be minimized as mere enforcement of Regents' policy and regulation, when its effect on both students and staff promises to be far-reaching, with major implications for the implementation of respondent's AIDS curriculum.

While respondent maintains that it met its obligation to seek advice from its Council because the Resolution addresses many of the concerns and recommendations previously expressed by the Council, respondent offers neither a factual basis nor a sound legal theory to support its argument. To the contrary, the existence of this appeal demonstrates the consequences of respondent's failure to involve the Council in the Resolution's adoption. In the absence of the more appropriate opportunity for discussion offered by the Council, this appeal becomes the primary forum for debating both the merits and the meaning of the Resolution. This is precisely the situation the Commissioner's regulation at 8 NYCRR 135.3(b)(2) is intended to avert. Respondent's conduct robbed the Advisory Council of its essential role in this matter, that is, to provide genuine opportunities for review and comment on matters central to implementation of its AIDS curriculum prior to adoption. This failure to comply with regulation cannot be excused.

There is, however, more at issue here than respondent's failure to submit the Resolution to the Advisory Council. In the event respondent decides to reintroduce its Resolution, petitioners' argument that the Resolution in its current form impedes the ability of teachers to perform their duties effectively cannot be ignored. As a matter of sound educational policy, the powers of the board to authorize and approve the general courses of study in the schools must be so exercised as to allow teachers to tailor that curriculum to the age and maturity of the students (Appeal of O'Connor, 29 Ed Dept Rep 48, aff'd 173 AD2d 74 [3rd Dept. 1992]; Appeal of Board of Education of the Malverne UFSD, 29 Ed Dept Rep 363, aff'd 181 AD2d 371 [3rd Dept. 1992]). Within the broad parameters of the AIDS curriculum, teachers "must be given latitude to enable them to teach the curriculum in the most effective manner" (Malverne, 29 Ed Dept Rep 366). Consider the problems a conscientious teacher might have in complying with the Resolution. First is the problem of time. The Resolution says that "Whenever students are assembled for classroom or other instruction relating to AIDS prevention, the written and oral instruction presented to them onthatoccasion must devote substantially more time and attention to abstinence than to other methods of prevention" (emphasis supplied). Suppose that for ten straight days the teacher has lectured the class about the virtues and efficacy of abstinence, and on the eleventh day introduces the topic of condoms. On that eleventh day, must more attention be devoted to abstinence than to condoms? What if the class, which has been focussing on abstinence each day for two school weeks, is more interested on the eleventh day in the new topic of condoms? If the teacher responds to the class and spends more time on condoms (or equal time, or even slightly rather than substantially less time), has he or she violated District policy? Or suppose that the teacher has devoted an hour to abstinence in the morning and then devotes ten minutes to condoms in the afternoon. Is that permissible under the Resolution, or do morning and afternoon on the same day constitute separate occasions?

Then there is the problem of defining "instruction." Respondent argues that the Resolution "is intended...to impact...only on that portion where oral or written instruction is presented by teachers or outside contributors to students...the provision does not affect, nor was it intended to affect, the content or focus of classroom discussion initiated by students, role-playing exercises or other non-directive activities" [Respondent's Answer, &106]. But in real classrooms the distinction between "instruction presented by teachers" and "classroom discussions initiated by students" is often blurred. Suppose a teacher is lecturing about abstinence and a student asks, "If I am not abstinent, should I use a condom?" Does the teacher's reply, informing the student and the class about the advantages and risks of condoms, constitute impermissible teacher-presented instruction or permissible student-initiated discussion?

Perhaps if all instruction concerning AIDS were accomplished through text or videotape, one could assure that more attention were paid to abstinence than to other forms of prevention in every chapter, on every page, in every reel. (Although one still cannot fully prevent students from spending more time on one page than on another.) But since in our system such instruction is provided by teachers, it is inevitable and appropriate that the manner and pacing of that instruction be influenced by the teacher's knowledge of the history, habits, and mood of the class. By mandating, in effect, a stopwatch approach to education, respondent's Resolution impermissibly reduces teachers to "neutral conduits of information from some external source to pupils' minds" (Appeal of Bd of Education of the Malverne UFSD, 29 id. 363, 366). By imposing from above a rigid formula that measures compliance by quantifying curriculum content rather than by assessing overall intent and results, Resolution 33 reaches beyond the City Board's legitimate interest in setting policy and approving curriculum and intrudes impermissibly upon the teacher's latitude to teach the curriculum in the most effective manner.

For all the controversy surrounding AIDS instruction in New York City, the parties to this appeal seem to be in substantial agreement. Both parties want a program that stresses abstinence, but recognize the need to provide instruction on safer sex for those who are, nonetheless, sexually active. This should not be so difficult to achieve. I urge the parties to come together to find appropriate means to carry it out, so that time and energy may be spent addressing other serious problems.

Because the Resolution has been declared void, there is no need to address the parties' remaining claims.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that Resolution 33 is null and void.

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