Appeal of DAVID A. CURRY, on behalf of his son ANDREW and all students in grades one through six in the East Ramapo Central School District, from action of the Board of Education of the East Ramapo Central School District regarding curriculum.

Decision No. 16,795

(July 23, 2015)

Minerva & D’Agostino, P.C., attorneys for respondent, Roslyn Roth, Esq., of counsel

Elia, Commissioner.--Petitioner appeals the decision of the Board of Education of the East Ramapo Central School District (“respondent”) to eliminate art and music instruction at its elementary schools.  The appeal must be dismissed.

During the 2013-2014 school year, petitioner’s son attended third grade at respondent’s Hempstead Elementary School.  According to petitioner, on April 23, 2013, respondent adopted a proposed budget for the 2013-2014 school year, which abolished[1] certified elementary art and music teaching positions in the district’s elementary schools.  On May 21, 2013, the voters rejected the proposed budget, but on June 18, 2013, they approved a revised, slightly smaller budget.  On August 20, 2013, respondent passed a motion to decrease the 2013-2014 budget by an additional $3.5 million.  This appeal ensued.  Petitioner’s request for interim relief was denied. 

Petitioner claims that respondent is in violation of 8 NYCRR §§100.3(b)(1) and 100.4(b)(1), which require districts to provide instruction in certain subjects, including visual arts, music, dance and theatre, to elementary and intermediate students.  Petitioner asserts that his son and all students attending grades one through six in the district are not receiving any instruction in art or music.  He requests that “[t]he Commissioner conduct a review of all educational programs used in the District’s public schools to determine whether or not they comply with all relevant State education laws and regulations” and “direct Respondent to ensure that all relevant State education laws and regulations are followed when developing, supervising, and administering educational programs in the District’s public schools.”

Respondent asserts that the appeal must be dismissed as untimely, for lack of verification, and because the claims are not ripe and no actual controversy exists.  Respondent also asserts that the appeal cannot be maintained as a class action.  Respondent contends that it is providing instruction in full compliance with §§100.3(b)(1) and 100.4(b)(1) of the Commissioner’s regulations.

I must first address the procedural issues.  On December 12, 2013, petitioner served a document entitled “Verified Supplement to Verified Reply” (“Supplement”).  The Supplement describes petitioner’s efforts to obtain additional information from respondent through two Freedom of Information Law (“FOIL”) requests to respondent dated November 2 and November 19, 2013, and includes exhibits containing information obtained in response thereto. According to petitioner, the Supplement is intended “to provide the Commissioner with the results of two [FOIL] requests made by Petitioner prior to the due date of his Verified Reply, but to which Respondent had not yet responded at the time the Verified Reply was filed.”  Respondent does not object to this submission. 

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  A party seeking to file affidavits, exhibits and other supporting papers pursuant to this subdivision shall submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with §275.8(b) of the Commissioner’s regulations (8 NYCRR §276.5[a]).  While petitioner explains why the Supplement is necessary, he did not request permission to submit the Supplement in accordance with 8 NYCRR §276.5. 

However, petitioner submits proof that the Supplement was served upon respondent and respondent did not object to such submission or allege any prejudice resulting therefrom (cf. Appeal of Torres, 45 Ed Dept Rep 170, Decision No. 15,292; Appeal of Boyd, 41 id. 266, Decision No. 14,682).  Furthermore, petitioner is not attempting to add new claims or factual assertions that could have been asserted in earlier pleadings (cf. Appeal of O.M. and R.M., 52 Ed Dept Rep, Decision No. 16,414; Appeal of a Student Suspected of Having a Disability, 41 id. 329, Decision No. 14,702).  Rather, according to the Supplement, petitioner submitted his initial FOIL request on November 2, 2013, following receipt of the affidavit from respondent’s superintendent in opposition to petitioner’s stay request, sworn to on October 28, 2013.  According to petitioner, the FOIL request was to obtain information regarding statements made in the superintendent’s affidavit regarding the curriculum.  Similarly, petitioner’s second FOIL request on November 19, 2013 was to obtain information regarding statements made in respondent’s November 12, 2013 affidavit in opposition.  Accordingly, I will consider petitioner’s Supplement to the extent the allegations and exhibits contained therein are responsive to the new material or affirmative defenses set forth in respondent’s pleadings (see Appeal of a Student With a Disability, 49 Ed Dept Rep 439, Decision No. 16,075).

Respondent contends that the petition was not properly verified in accordance with 8 NYCRR §275.5.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  The petition submitted to my Office of Counsel contained the requisite verification.  Although petitioner should have included a copy of the verification with the papers served on respondent, I will excuse this omission because petitioner is not represented by counsel and my Office of Counsel received a verified petition (Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687; Appeal of W.B., 54 id., Decision No. 16,662; Appeal of Carangelo, 49 id. 217, Decision No. 16,006; Appeal of M.M., 42 id. 323, Decision No. 14,870).

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  According to the petition, on April 23, 2013, respondent adopted a proposed budget for the 2013-2014 school year which abolished certified elementary art and music teaching positions in the district’s elementary schools.  Respondent asserts that, based on petitioner’s allegations, the petition should have been commenced by May 23, 2013, which is 30 days after respondent allegedly adopted the budget eliminating art and music instruction.  Alternatively, respondent argues that “the latest possible date for contesting the alleged elimination of art and music instruction was September 19, 2013, which is thirty (30) days after the budget was last reduced by Respondent Board.”  Respondent also contends that, to the extent petitioner contests the alleged failure to provide elementary art and music instruction, the appeal should have been commenced by October 9, 2013, which is 30 days after the first day of school for the 2013-2014 school year.  According to the affidavit of service, petitioner served the verified petition on October 22, 2013, which is more than 30 days after any of the challenged actions. 

However, I find that the appeal is not untimely because the gravamen of petitioner’s claim is that respondent is not providing his son with art and music instruction in violation of 8 NYCRR §§100.3(b)(1) and 100.4(b)(1), which would constitute a continuing wrong (see Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631; Appeal of Destino, 52 id., Decision No. 16,461).  The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as the unlawful employment of an unqualified individual (Appeal of Kippen, 48 Ed Dept Rep 469, Decision No. 15,919), unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155), an improperly constituted professional development team (Appeal of Copenhagen Teachers’ Association, et al., 45 Ed Dept Rep 459, Decision No. 15,381) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Application of Ayers, 48 Ed Dept Rep 350, Decision No. 15,883; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821, judgment granted dismissing petition to review, April 8, 2009, Sup.Ct., Albany Co. [Zwack, J.]).  Sections 100.3(b)(1) and 100.4(b)(1) of the Commissioner’s regulations specifically require boards of education to provide students in grades one through four (§100.3[b][1]) and grades five and six (§100.4[b][1]) with instruction that is designed to facilitate their attainment of the State elementary (§100.3[b][1]) and intermediate (§100.4[b][1]) learning standards in certain subjects, including “the arts, including visual arts, music, dance and theatre” (8 NYCRR §§100.3[b][1][v] and 100.4[b][1][v]).  The continuing failure to provide students with instruction designed to facilitate their attainment of the State learning standards in the arts is inherently unlawful and thus a continuing wrong subject to complaint at any time (see e.g., Appeal of McCarthy, 54 Ed Dept Rep, Decision No. 16,631 [school libraries]; Appeal of Doyle, et al., 52 id., Decision No. 16,429 [health education]). 

To the extent petitioner attempts to assert claims on behalf of “all students” in respondent’s district in grades one through six, he lacks standing to do so.  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 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 has standing to bring this appeal on his son’s behalf to the extent he alleges he has been aggrieved by the elimination of elementary art and music instruction, he lacks standing to assert the rights of others in that regard (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).  Therefore, the appeal is dismissed as to the claims asserted on behalf of “all students” in respondent’s district in grades one through six.

To the extent petitioner seeks to maintain the appeal as a representative 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 states generally that the class comprises “all students” in respondent’s district in grades one through six; “that joinder of all members is impracticable”; and that

[t]here are questions of fact and law common to all members of the class, including that all members of the class are entitled under the Regulations of the Commissioner of Education to receive instruction to facilitate their attainment of State learning standards in the arts, including visual arts, music, dance and theatre. 

However, as respondent notes, petitioner failed to set forth the number of individuals he seeks to represent.  In his reply, petitioner asserts that, based on the allegations in the petition, “a reasonable person may infer that the class includes hundreds, if not thousands, of individuals” and that respondent “should know exactly how many students it educates in grades one through six.”   However, it is petitioner’s burden to set forth the number of individuals he or she seeks to represent and show that all questions of law and fact would be common to all members of the class, and on this record I find that petitioner has failed to meet his burden.  Therefore, class status is denied.

Turning to the merits, the Commissioner’s regulations specifically require boards of education to provide students in grades one through four and grades five and six with instruction that is designed to facilitate their attainment of the State elementary and intermediate learning standards in certain subjects, including “the arts, including visual arts, music, dance and theatre” (8 NYCRR §§100.3[b][1][v] and 100.4[b][1][v]; Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981).  Respondent correctly notes that guidance issued by the State Education Department (“Department”) recommends that elementary level arts instruction be provided by a certified arts teacher but states that such instruction may also be provided by a certified elementary teacher (see New York State Education Department, Office of Curriculum and Instructional Support’s Summary of Arts (Dance, Music, Theatre, and Visual Art)_Provisions in Part 100 of the Regulations of the Commissioner of Education [“Summary”], November 2005, page 4; Appeal of Ferencik, 49 Ed Dept Rep 142, Decision No. 15,981).

In response to petitioner’s allegations, respondent’s superintendent avers that instruction in art and music “is naturally integrated into the curriculum” and that “the District is in the process of realigning their K-6 curriculum to further integrate music and art forms and will be providing teachers with the updated curriculum.”  According to respondent, while classroom teachers maintain a significant amount of discretion regarding classroom instruction, “they are also advised about the State educational requirements for art instruction and directed to utilize portions of their general classroom instruction to satisfy those requirements.” 

As evidence of such integration, respondent’s attorney submits a “template of activities involving dance, music and visual arts” that she claims “contains examples of activities that teachers are suggested to integrate into their general classroom instruction.”  Respondent’s attorney affirms that such template “will be been [sic] provided to each of the District’s elementary school principals.”  Respondent also asserts that training sessions for the elementary school teachers “have been scheduled” to enable them to provide students with art and music instruction.  Further, in its verified answer, respondent asserts that it “has provided and/or will provide to students in grades 1-6 the requisite instruction in the arts....”

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 petitioner 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).  Petitioner asserts in his reply that his son’s teacher has not been asked or required to provide art and music instruction in the classroom, and that,based upon information and belief, none of the elementary school teachers have been provided with a curriculum that incorporates art and music; and, that as a result, his son and his elementary school peers are not receiving mandatory instruction in the arts.

Petitioner also asserts that, “upon information and belief, Respondent has not provided any training to the elementary school teachers to enable them to provide instruction in art or music.”  However, petitioner submits no evidence, such as an affidavit from his son’s teacher, for example, establishing that in fact art and music have not been incorporated into the curriculum and that elementary school teachers have not been required to provide art and music instruction.  Petitioner’s allegations are largely conclusory in nature and are alleged primarily upon information and belief.

On the other hand, respondent’s answering papers do not clearly refute petitioner’s claims and contain limited assertions, some of which are couched in both present and/or future terms.  For example, as noted above, in its verified answer, respondent asserts that it “has provided and/or will provide to students in grades 1-6 the requisite instruction in the arts....”  Further, as petitioner notes, in response to the allegations in his petition that the students are “not receiving any instruction whatsoever in art or music” and that the district “has not provided any training to the elementary school teachers to enable them to provide instruction in art or music,” respondent merely denies knowledge or information sufficient to form a response to the allegations. 

Based on the record before me, I find that the evidence is in equipoise and, as a result, I am constrained to conclude that petitioner has failed to meet his burden of establishing a clear legal right to the relief requested and the facts upon which he seeks relief (see e.g., Appeal of Phyllis and Marc B., 38 Ed Dept Rep 301, Decision No. 14,039).

Although I am constrained to dismiss the appeal for the reasons set forth above, I am compelled to comment on the manner in which respondent has answered the petition.  As noted above, in its answer, respondent merely denies knowledge or information regarding the instruction offered to petitioner’s son.  Such response appears to be disingenuous and evasive.  Respondent is responsible for ensuring that the East Ramapo Central School District complies with 8 NYCRR §§100.3(b)(1) and 100.4(b)(1) and if it does not know whether petitioner’s son is receiving the instruction required in such regulatory provisions, it is its duty to find out.  Respondent is advised to make reasonable efforts in the future to learn the facts necessary to prepare a meaningful response to such allegations (see e.g., Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609).

Finally, in light of the facts and circumstances presented in this appeal, including respondent’s denial of knowledge or information sufficient to form a belief as to the amount of art, music, dance and theatre instruction received by petitioner’s son, and its repeated use of the future tense in describing how arts instruction will be integrated into the elementary curriculum, I am directing my Office of Curriculum and Instruction to provide guidance and technical assistance to the district in order to ensure that it provides such instruction in accordance with the Commissioner’s regulations.

In light of this disposition, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE