Reopening of the Appeal of DONNA DOYLE,on behalf of her son JOSEPH BARCI, and the EASTPORT-SOUTH MANOR CENTRAL SCHOOL DISTRICT TEACHERS ASSOCIATION from action of the Board of Education of the Eastport-South Manor Central School District and Mark A. Nocero, as Superintendent, regarding health education.

Decision No. 16,472

(April 26, 2013)

Richard E. Casagrande, Esq., New York State United Teachers, attorneys for petitioners, Mitchell H. Rubenstein, Esq., of counsel Guercio & Guercio, LLP, attorneys for respondent, Douglas A. Spencer, Esq., of counsel

KING, JR., Commissioner.--Pursuant to §276.8(c) of the Commissioner’s regulations, I hereby determine that Decision No. 16,429, dated November 16, 2012, must be reopened in the interests of justice. The original decision to sustain the appeal, however, remains unchanged.

In the original decision (Appeal of Doyle, 52 Ed Dept Rep, Decision No. 16,429), I found that the failure of the Board of Education of the Eastport-South Manor Central School District (“board” or “respondent”) and superintendent Mark Nocero (“Nocero”) (collectively “respondents”) to provide the half unit of health education required in Commissioner’s regulation§100.4(c)(1)(viii) to the cohort of students in the eighth grade during the current (2012-2013) school year constituted an illegal, arbitrary and capricious decision. Additionally, I stated that the Commissioner’s regulations authorizing a board of education to proscribe a course of study do not authorize it to omit this required instruction for students (8 NYCRR §§100.4[c][1] and 135.3 [c]). In light of these findings, I required that respondents provide the required half unit of study in health education to the current eighth grade class by the end of the 2012­2013 school year.

By letter dated March 20, 2013, respondents requested that they be allowed to provide the required half unit of study in health education to the current eighth grade class during the 2013-2014 school year rather than the current school year as was required in my original decision. Respondents assert that since my November 16, 2012 decision, they have attempted to schedule the required half unit of study in health education for the eighth grade class, but have been unable to do so without causing “significant, unanticipated negative consequences for both students and faculty.” Specifically, respondents state that the eighth grade students would lose an English Lab class which would result in these students losing needed instruction in English Language Arts. Respondents also state that a .6 English teaching position would be abolished, the students’ and teachers’ schedules would need to be substantially rearranged and the eighth grade teams would need to be dismantled. Respondents further state that they are prepared to provide the required half unit of study in health education to the eighth grade class next year, when the students will be in ninth grade.

In light of this request, by letter dated March 26,2013, my Office of Counsel asked petitioner’s attorney to submit any response to respondents’ request by April 3,2013. No response was received, and I note that respondents’ March 20, 2013 letter states that the Eastport-South Manor Teachers Association does not object to respondents’ request.

Based on the information submitted to me by respondents in their March 20, 2013 letter, I find that requiring them to comply with my order to provide the required half unit of study in health education to the eighth grade class during the current school year would result in an adverse effect on the class. Specifically, respondents have submitted documentation evidencing that the students would be deprived of “English Lab class [which] would result in eighth grade students losing additional, needed instruction in English Language Arts.” The students should not be deprived of this necessary instruction and respondents assert that they are prepared to provide the students the required half unit of study in health education next school year. Therefore, in the interest of justice to the students affected by my decision in Appeal of Doyle (52 Ed Dept Rep, Decision No. 16,429), I am allowing respondents to provide the required half unit of study in health education to the current eighth grade class during the 2013-2014 school year rather than this school year. As set forth more fully in Appeal of Doyle, I again remind respondents of the requirement that a half unit of study in health education be provided to all students by the end of grade eight (8 NYCRR §100.4[c][1][viii]).

IT IS ORDERED that Decision No. 16,429 is reopened and modified to the extent indicated above.

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