031103 In the Matter of the Appeal of JOSEPH P. GIARDINA from Action of the Board of Education

SCHOOLS

BHES

BVES

FOX LANE HIGH SCHOOL

FLMS

MKES

PRES

SCANDALS

The Public Schools of Westchester County New York

STATE OF NEW YORK

BEFORE THE COMMISSIONER OF EDUCATION --X

In the Matter of the Appeal of JOSEPH P. GIARDINA from Action of the Board of Education

of the BEDFORD CENTRAL SCHOOL DISTRICT with Respect to Respondent's Alleged Illegal Subsidy of Voluntary Student Travel and Other Frivolous Objections.

---------------------------------- X STATE OF NEW YORK)

) S.S.

COUNTY OF SUFFOLK)

LAWRENCE W. REICH, being duly sworn deposes and says:

I am an attorney duly admitted to practice in the courts of New York

State and am a member of the firm of Ingerman Smith, L.L.P.,

record for respondent Board of Education of the Bedford Central S, i ool

District; I have read the annexed Verified Answer and know the contents

thereof; the same is true to my own knowledge, except as to those matters

therein stated to be alleged on information and belief, and as to those matters

I believe them to be true. The reason this verification is made by me and not

the respondent is that respondent Board of Education of the Bedford Cc Central

School District is a municipal corporation and as such anyone having

knowledge of the facts may so verify. The grounds of my belief as to all matters

not stated upon my knowledge are records and documents of the respondent.

LAWRENCE W. REICH

Sworn to before me this 11th day of March, 2003

THIRD: Admits, as alleged in paragraph "4" of the Verified Petition, that the State Constitution mandates that "the legislature shall provided for the maintenance and support of a system of free common schools, wherein all children of the state may be educated" but denies any "understanding" as to the meaning of that obligation, other than as a constitutional minimum for judging the sufficiency of programs and services.

FOURTH: Denies the relevance of each and every allegation contained i» paragraph "5" of the Verified Petition, since each school district can provide educational programs and services beyond the constitutional minimum. FIFTH: Admits, as alleged in paragraph "6" of the Verified Petition, that respondent provides its students with an educational experience which substantially exceeds constitutionally-minimum standards.

SIXTH: Admits, as alleged in paragraph "7" of the Verified Petition, that at its Meeting of January 15, 2003, respondent Board of Education appropriated an amount not to exceed $15,000 to defray the cost of the educational component of the ACES field trip to Costa Rica and respectfully refers the Commissioner of Education that the full text of that resolution, a copy of which was previously annexed as Exhibit "2" to the Affidavit in Opposition.

SEVENTH: Admits, as alleged in paragraph "8" of the Verified Petition, that those ACES students who did not elect to travel to Costa Rica would participate in an Academic curriculum, which would cover the same specific topics.

EIGHTH: Admits each and every allegation contained in paragraphs and "10" of the Verified Petition, but denies the relevance thereof, since no school district is precluded from expending funds beyond those necessary to provide the constitutional minimum sound basic education.

NINTH: Denies the relevance of each and every allegation containers in paragraph "11" of the Verified Petition, since without the chaperones, there could be no supervision, nor could there be any educational component for the field trip.

TENTH: Denies each and every allegation contained in paragraph "12" of the Verified Petition, except admits that the ACES community indicated in its proposal to the Board that it would resort to fundraising through such voluntary, non-coercive activities as the "pie sale, craft sale, tag sale, car wash, holiday dinner and coffee house poetry night" to raise sufficient funds to defray or contribute toward personal expenses for those students whose parents or persons in parental relation could not afford the full cost of th^e incidental personal expenses, including transportation, meals and lodging

ELEVENTH: Denies each and every allegation contained in paragraphs "15" and "16" of the Verified Petition.

FOURTEENTH: Denies each and every allegation contained in paragraph "19" of the Verified Petition, except admits that ACES staff negotiated a tentative package with a travel agency which was intended to cover "flight, accommodations, specified meals, land transportation and specified educational activities" (See ACES Proposal, a copy of which was previously annexed as Exhibit "2" to the Affidavit in Opposition), but alleges that the proposal was contingent upon Board of Education approval and would have no force and effect if not approved by the Board.

FIFTEENTH: Denies each and every allegation contained in paragraph "20" of the Verified Petition, except admits that the ACES Community has taken an out-of-country educational field trip for at least the past decade and that such trips have always been approved by the Board of Education.

SIXTEENTH: Denies the relevance of each and every allegation contained in paragraph "21" of the Verified Petition, since the motion which the Board of Education adopted at its meeting of January 15, 2003 speaks for itself;

any comment which the President of the Board may have made is irrelevant, since the Board's action, not the contemporaneous comment by any one member, is relevant.

SEVENTEENTH: Admits each and every allegation contained in paragraph "22" of the Verified Petition.

EIGHTEENTH: Denies knowledge or information sufficient to form with respect to the truth or accuracy of each and every allegation contained in paragraph "23" of the Verified Petition except alleges that pervious boards have been aware of and approved prior ACES educational field trips.

NINETEENTH: Denies each and every allegation contained in paragraphs "24" through and including "26" of the Verified Petition, except admits that the Board's policy on Field Trip and Excursions does not establish specific dollar limitations or geographic limitations but leaves such considerations to the exercise of sound judgment and discretion by the board of education which receives any such request.

TWENTIETH: Admits, as alleged in paragraph "27" of the Verified Petition that respondent Board of Education has approved past ACES Field 'Drips to locations beyond the borders of the continental United States and that it would likely do so in the future if the ACES community proposes an educational field trip with a strong educational justification which meets the criteria set forth in Matter of Christe, 39 Ed. Dept. Rep. 685 (2000).

TWENTY-FIRST: Admits each and every allegation contained in paragraph "20" of the Verified Petition but denies the relevance thereof, since the proposed Grand Canyon trip by a group of High School science students is ^a recreational experience which will not be funded at the expense of the taxpayers of the District.

TWENTY-SECOND: Denies knowledge or information sufficient to form a belief with respect to the truth or accuracy of each and every allegation contained in paragraph "29" of the Verified Petition.

TWENTY-THIRD: Denies each and every allegation contained in paragraph "30" of the Verified Petition, except alleges, upon information and belief, that the United States Department of State has not issued any prohibitions or advisories against travel to Costa Rica, nor has the Commissioner of Education issued any general warning or guidance against student travel to Central America.

TWENTY-FOURTH: Denies each and every allegation contained in paragraphs "31" and "32" of the Verified Petition.

TWENTY-FIFTH: Denies each and every allegation contained in paragraph "33" of the Verified Petition, except specifically denies the relevance of impending military action against Iraq on school district travel to Costa Rica.

TWENTY-SIXTH: Denies the relevance of each and every allegation contained in paragraphs "34" and "35" of the Verified Petition, since no

school district is precluded from expending funds beyond those necessary to provide a sound basic education, nor is such minimal constitutional standard an appropriate measure or limitation upon a school board's right to expend for educational programs and services. TWENTY-SEVENTH: Denies each and every allegation contained M paragraph "36" of the Verified Petition, except admits that those students who elect not to participate will study the same curriculum.

TWENTY-EIGHTH: Denies each and every allegation contained 'Ilk paragraph "37" of the Verified Petition, except admits that the ACES brochure refers to social and behavioral benefits which will accrue from the program, in addition to the academic component, but denies that the program offers "psychiatric intervention" to participating students.

TWENTY-NINTH: Denies each and every allegation contained in paragraph 38 of the Verified Petition, and more specifically denies that the ACES trip provides psychiatric intervention for student participants.

THIRTIETH: Denies each and every allegation contained in paragraphs "39" and "40" of the Verified Petition, except specifically denies the bizarre suggestion contained in paragraph "40"of the Verified Petition that "since Costa Rica is the MECCA for new-age pagan religions ... [h]ands-on `experiential' learning in the sacred rainforest is tantamount to practicing/ establishing religion"

THIRTY-FIRST: Denies each and every allegation contained in paragraphs "4l." through and including "43" of the Verified Petition, except admit:, that the ACES field trips were based upon a model developed in consultation With the Yale Consultation Center but specifically denies that the District provides psychiatric services or, more specifically, psychiatric counseling to students or that district staff apply experiential psychiatric methods to participating students.

THIRTY-SECOND: Admits each and every allegations contained in

paragraph "44" of the Verified Petition but alleges that a per se ban on

international travel beyond the borders of the continental United States

would be educationally unsound and unreasonable.

THIRTY-THIRD: Denies knowledge or information sufficient to form a

belief with respect to the truth or accuracy of each and every allegation

contained in paragraph "45" of the Verified Petition.

THIRTY-FOURTH: Denies each and every allegation contained in

paragraph "46" of the Verified Petition.

OBJECTIONS IN POINT OF LAW

THIRTY-FIFTH: Upon information and belief, the Verified Petition fails to state a claim sufficient to constitute the basis for any relief herein.

AS AND FOR A FIRST AFFIRMATIVE DEFENSE, RESPONDENT ALLEGES:

THIRTY-SIXTh: The ACES Program is an alternative high school operated and maintained by respondent Bedford Central School District separate and 8

apart from the campus of the Fox Lane High School; ACES is the acronym for Academic Community for Educational Success.

THIRTY-SEVENTH: ACES is a community school which emphasizes character, scholarship and leadership.

THIRTY-EIGHTH: Many of the students who participate in the ACES Program are not conventional learners but learn best through experiential teaching techniques.

THIRTY-NINTH: In addition, many have social issues which must be addressed before they are ready to learn, and, consequently, counseling is an integral portion of the program.

FORTIETH: The ACES brochure, a copy of which was previously annexed as Exhibit "1" to the Affidavit in Opposition, indicates that the program of the Academic Community includes many courses which will have an experiential component, often involving travel; there are "four long trips throughout the year, one usually out of the United States of America, and a variety of one-day trips".

FORTY-FIRST: Each year, the ACES school community participates in an adventure-based counseling trip out of the country; for the 2002-03 school year, those ACES students who choose to participate will travel as a group to Costa Rica for a one week educational field trip during the period from February^- 27, 2003 through and including March 6, 2003; amongst the major democratic self-government", the so-called "sound basic education" standard, should not be subsidized by the taxpayers (Verified Petition;

paragraph "9").

transportation, meals and lodging, while the District would be responsible for the entire educational component of the field trip, including the cost of chaperones.

FORTY-FOURTH: At its Meeting of December 4, 2002, Dr. Bruce Dennis, respondent's Superintendent of Schools, advised the Board that the ACES community was planning a trip to Costa Rica; that he was satisfied With the proposal; and that he would place the proposal on the agenda for approved : at the Board's Meeting of December 18, 2002; a copy of the relevant portion of the Minutes of the Meeting of December 4, 2002 was previously annexed to the Affidavit in Opposition as Exhibit "3".

FORTY-FIFTH: David Albano made a presentation to the Board of Education at its Meeting of December 18, 2002 in support of the proposed ACES trip; at the conclusion thereof, the Board of Education adopted a motion to approve the ACES field trip request, a copy of which was previously annexed to the Affidavit in Opposition as Exhibit 'W'.

FORTY-SIXTH: The Board of Education revisited the proposal at it's Meeting of January 15, 2003 and duly adopted a resolution reconfirming it's approval for the project and appropriating an amount not to exceed $15,000 to defray the cost of the educational component of the trip, including the cost of chaperones; a copy of the resolution was previously annexed to the Affidavit in Opposition as Exhibit "5".

FORTY-SEVENTH: Pursuant to the proposal which the Board of Education adopted, those students who chose to participate in the trip would be financially responsible for such personal expenses as

FORTY-EIGHTH: No student would be denied the opportunity to participate because his/her parent or person in parental relation lacked the means to defray or contribute to the cost of his/her personal expenses; the proposal which the Program submitted provided for defraying such expenses through such traditional fund raising activities as "our annual pie salecraft r sale, tag sale, car wash, holiday dinner and coffee house poetry night".

FORTY- NINTH: Petitioner herein seeks to prohibit the District from funding the educational component of the Costa Rica trip on the ground that the curriculum experience goes "far beyond the basic education mandated by the New York State Constitution and court precedent" (Verified Petition; paragraph "6°).

FIFTIETH: Importing the standard articulated by the Court of Appeals in Campaign for Fiscal Equity. Inc. v. State of New York, 86 N.Y.2d 3()7 (1995), petitioner suggests that any expenditures beyond those necessary to enable students "to obtain an education that enables them to speak, listen, read and write clearly and effectively in English, perform mathematical calculations, be knowledgeable about political, economic and social institutions and procedures in this country and abroad and acquiring theskills, knowledge, understanding and attitudes to participate in

FIFTY-FIRST: Petitioner urges the Commissioner of Education to declare that a board lacks the authority to expend district funds for educational programs beyond those necessary to provide a so-called "sound basic education", which the Appellate Division, First Department in Campaⁱgⁿ forFiscal Equity Inc., et al. v. State of New York, 295 A.D.2d, 744 NYS 2nd, 30 (2001), very recently equated to performance at a level of skills between grades 8 and 9.

FIFTY-SECOND: Upon information and belief, what the Constitution of the State of New York compels as a base is not properly the measure of what a board may expend for a legitimate educational purpose.

Fifty- -THIRD: While the board may not constitutionally be conipelled to expend funds for educational experiences beyond functional 8th/9th grade literacy skills, neither is it precluded from doing so.

FIFTY-FOURTH: The standard which petitioner asks the Commissioner of Education to apply is manifestly inappropriate.

AS AND FOR A SECOND AFFIRMATIVE DEFENSE RESPONDENT ALLEGES:_

_FIFTY-FIFTH: Petitioner suggests that respondent Board of Education is utilizing taxpayers' funds to subsidize what is essentially alleged to be a private recreational experience for participating students.

FIF'T'Y-SIXTH: Citing the Commissioner of Education's decision in Matter of Christe, 39 Ed. Dept. Rep. 685 (2000), petitioner argues that the Board is subsidizing "voluntary vacations with private monies" (Verified Petition; Paragraph "11 ").

FIFTY-SEVENTH: In Matter of Christe, the Commissioner of Education held that a board of education could not utilize taxpayers' funds to subsidize trips which were not integral to the educational experience, as where such trips were essentially private recreational experiences.

FIFTY-EIGHTH: In Christe, the Commissioner reaffirmed that school field trips were an integral part of the educational experience of students, and that a board of education had inherent authority to include field trips as p^art of the educational curriculum.

FIFTY-NINTH: The Commissioner of Education distinguished between field

trips having a valid pedagogical purpose from those which merely

constituted a private recreational experience, setting forth various criteria or

indicia by which the former could be distinguished from the latter:

"I am not persuaded, upon the record before me, that respondent board was exercising its authority to prescribe a course of study for district students (Education Law § 1709[31), provide for the instruction of pupils in the foreign language classes (§1709[51), or exercise superintendence, management and control of the district's educational affairs (§1709[33,), when it adopted the December 1998 resolutions. For example, the disciplinary and behavior policy set forth in the proposal is not related whatsoever to the district's conduct code or rules, and merely requires students to follow the rules or regulations established by the chaperones. There is not indication in the