Decision No. 12,934

(May 24, 1993)

Alan J. Knauf & Associates, P.C., attorneys for petitioner, Alan J. Knauf, Esq., of counsel

Adam D. Kaufman, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals on behalf of her children and all elementary school pupils in the Rochester City School District from respondent's alleged failure to comply with the Regulations of the Commissioner of Education relating to the provision of library services and physical education. The appeal must be sustained in part.

Petitioner's children attend Lewis H. Morgan School No. 37, an elementary school in respondent's district. On March 4, 1992, respondent adopted a resolution abolishing 28 librarian positions in the district, effective March 16, 1992. Petitioner claims that, as a result of that action, respondent closed every elementary school library in the district in violation of 8 NYCRR '91.1 which provides:

Petitioner also alleges that, in addition to its failure to provide library services in compliance with 8 NYCRR '91.1, respondent does not provide the required amount of physical education to its elementary school pupils in violation of 8 NYCRR ''135.4(a) and (c). Respondent asserts that it is providing both library services and physical education in compliance with the Regulations of the Commissioner of Education.

Petitioner seeks to maintain this appeal "on behalf of all elementary school pupils in the Rochester City School District." Pursuant to 8 NYCRR '275.2(a), however, a class appeal is permitted only where the class of individuals "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." While this appeal presents questions of law common to all members of the proposed class, petitioner has not established that the issues of fact are the same for all members of the proposed class who attend various schools in respondent's district. Class status is, therefore, denied.

Subsequent to the initiation of this appeal, respondent submitted an affidavit by its superintendent of schools indicating that several librarians had been reinstated to provide services to all schools in the district and that each school is now offering library services to its students. Petitioner concedes that respondent is now providing such services. The Commissioner of Education will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Wood, 32 Ed Dept Rep 470; Appeal of Allert, 32 id. 242). In this case, there is no dispute that, subsequent to the filing of this appeal, respondent reinstated the library services in question and is in compliance with 8 NYCRR '91.1. Therefore, that part of petitioner's appeal alleging noncompliance with 8 NYCRR '91.1 is moot.

Petitioner's remaining claim concerns respondent's compliance with 8 NYCRR ''135.4(a) and 135.4(c)(2)(i)(a) relating to physical education. Specifically, petitioner alleges that respondent does not provide to students the required amount of physical education as set forth in the regulations. Section 135.4(a) requires a board of education to "develop and implement school district plans to provide physical education experiences for all pupils ..." Section 135.4(c)(2)(i)(a) provides:

Petitioner alleges that, during the 1991-92 school year, her son and daughter, who were then enrolled in first and second grade respectively, received physical education only twice each week for a total of 60 minutes. She contends, therefore, that respondent is not in compliance with the physical education regulations. Respondent has submitted an affidavit by the principal of Lewis H. Morgan School No. 37 indicating that petitioner's daughter received 155 minutes of physical education weekly, including 80 minutes per week of physical education taught by the classroom teacher under the supervision of the physical education teacher, and 75 minutes (15 minutes daily) recess/structured play under the supervision of a lunchroom monitor. According to the affidavit, petitioner's son received 165 minutes of physical education per week, including 90 minutes taught by the classroom teacher and 75 minutes (15 minutes daily) recess/structured play under the supervision of a lunchroom monitor.

In August 1992, subsequent to the filing of this appeal, respondent issued memoranda and directives to its elementary school principals setting forth the requirements for physical education and directing that all elementary school students receive physical education on a daily basis for a total of 120 minutes per week, taught by either a certified physical education teacher or the classroom teacher under the supervision of a certified physical education teacher. In addition, respondent's superintendent of schools indicated in an affidavit submitted after the initiation of the appeal that 5.6 physical education teacher positions had since been added to the district's elementary schools for the 1992-93 school year to ensure compliance with the regulations. In response, petitioner's attorney submitted an affirmation in which he indicates that, despite respondent's corrective action, petitioner maintains that the district remains out of compliance. He also indicated that additional evidence regarding the current status of respondent's physical education program would be forthcoming. However, none has been submitted.

Petitioner correctly alleges that the physical education provided to her children during the 1991-92 school year did not comply with the requirements of the Regulations of the Commissioner of Education. Physical education must be provided by a certified physical education teacher or a classroom teacher under the supervision of a certified physical education teacher (8 NYCRR 135.4[c][4]). Unstructured play at recess or structured play under the supervision of a lunchroom monitor does not constitute physical education and may not be included as part of a district's physical education program.

I am unable to determine on the record before me whether respondent has since corrected the deficiencies in its program. As noted, in its August 1992 memorandum to elementary school principals, respondent clarified its obligations relating to physical education pursuant to the regulations and directed the principals to comply; respondent also added 5.6 certified physical education positions to its elementary schools. However, the affidavit submitted by respondent's superintendent of schools states merely that "upon information and belief" respondent's elementary schools are currently complying with '135.4 of the Commissioner's regulations. While it may be that respondent's physical education program now fully complies with regulations, the superintendent's statement "upon information and belief" provides an insufficient basis to make such a finding or to dismiss petitioner's claim. Therefore, to the extent it has not done so, respondent is ordered to comply fully with 8 NYCRR ''135.4(a) and (c)(2)(i)(a), and I will direct this Department's regional field service team to monitor such compliance. Respondent is admonished to continue to monitor its physical education program to ensure that all instruction is provided by qualified individuals in accordance with regulation.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, to the extent that it has not already done so, respondent comply immediately with the requirements of 8 NYCRR ''135.4(a) and 135.4(c)(2)(i)(a).

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