STATE OF NEW YORK

1. I am a member of the firm of lngerman Smith, LLP, attorneys of record for respondent Board of Education of the Bedford Central School District, and I submit the within Affidavit in Opposition to petitioner's request for a stay order in the above-captioned appeal.

2. I am fully familiar with the underlying facts and circumstances of the appeal from my review of the books, documents and records of the municipal respondent and from my telephone conferences with school officials.

3. The application for a stay should be denied because petitioner is not aggrieved by the action complained of, nor will he suffer any irreparable injury if the stay is denied.

4. Upon information and belief, petitioner has not demonstrated a likelihood that he will prevail on the merits of the appeal.

5. The ACES Program is an alternative high school operated and maintained by respondent Bedford Central School District separate and apart from the campus of the Fox Lane High School; ACES is the acronym for Academic Community for Educational Success.

6. ACES is a community school which emphasizes character, scholarship and leadership.

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

8. 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.

9. The ACES brochure, a copy of which is annexed hereto and incorporated herein as Exhibit "1", 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 I year, one usually out of the United States of America, and a variety of oneday trips".

10. 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 assignments for the students who participate in the trip will be to study biodiversity and ecology of the rainforest; to write journals describing their experiences and observations; to study the rainforest and consider the effects of deforestation; to gain insight into the indigenous culture; and to do a community service project at a local elementary school.

11. On December 3, 2002, David Albano, a co-director of the ACES Program, submitted a proposal for the proposed Costa Rica trip to the Superintendent of Schools, which proposal contained the educational rationale and justification for the trip; described how the trip aligned with New York State Learning Standards; described the teaching methods which would be used; indicated how the trip would be funded, including how funds would be raised for those students whose parents or persons in parental relation could not afford the full cost of the trip; and indicated what alternative provisions would be made for those students who did not choose to participate; a copy of the proposal is annexed hereto and incorporated herein as Exhibit °2".

12. 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 approval 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 is annexed hereto and incorporated herein as Exhibit "3".

13. 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 is annexed hereto and incorporated herein as Exhibit "4".

14. The Board of Education revisited the proposal at its Meeting of January 15, 2003 and duly adopted a resolution reconfirming its 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 is annexed hereto and incorporated herein as Exhibit "5".

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

16. 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 sale, craft sale, tag sale, car wash, holiday dinner and coffee house poetry night".

17. Petitioner herein seeks a stay to enjoin 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").

18. Importing the standard articulated by the Court of Appeals in Campaign for Fiscal Equity. Inc. v. State of New York, 86 N.Y.2d 307 (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 the skills, knowledge, understanding and attitudes to participate in democratic self-government", the so-called "sound basic education" standard, should not be subsidized by the taxpayers (Verified Petition; paragraph "9").

19. 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 for Fiscal

295 A.D.2d, 744 N.Y.S.2d, 30 (2001, very recently equated to performance at a level of skills between grades 8 :Inc1 ()

20. 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.

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

22. The standard which petitioner asks the Commissioner of Education to apply is manifestly inappropriate.

23. 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.

24. 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 "I 1 ").

25. 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.

26. 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 part of the educational curriculum.

27. 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[3]), provide for the instruction of pupils in the foreign language classes (§1709[5]), 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 proposal that students would be subject to school disciplinary action under Education Law §3214 for misbehavior during the trips. Neither the proposal nor respondent board's December 1998 resolutions reflect any input by respondents into the content or planning of the trips, the educational objectives of the trips, or how the knowledge gained during the trips would be utilized, if at all, in the class curriculum upon the students' return.

Other relevant factors to be considered, in evaluating whether a particular student trip should be considered a school activity, include whether the trip was an approved part of the educational program of the school, occurred during the regular school day and year and was recognized as appropriate for academic credit. The student trips in the instant appeal do not meet these criteria. The trips were scheduled during a school recess; the department's proposal contains no provision for any academic credit resulting from participation, or penalty for not participating in the trip; and participation was not open to all students who were enrolled in foreign language courses or who had a legitimate academic interest in foreign languages."

28. Application of the principles set forth in the Christe decision demonstrates the appropriateness of the expenditure of an appropriation not to exceed $15,000 to defray the educational component of the Costa Rica field trip.

29. At its meeting of January 15, 2003, the Board of Education approved a resolution to appropriate an amount not to exceed $15,000 for the Costa Rica trip; in conjunction with such approval, the Board adopted the following resolution:

"WHEREAS, the Board of Education at its meeting of December 18, 2002 previously granted its approval for an ACES International Trip to Costa Rica for approximately 20 students and four chaperones, commencing Februarv 27, 2002 and returning March 6, 2003; and

WHEREAS, the Board of Education has reviewed the proposed curriculum and educational rationale for the trip and has determined that such trip constitutes an integral portion of the curriculum for such students; and

WHEREAS, participating students will receive academic credit for their participation in the field trip activity to the same extent as had theyeen in class; and

WHEREAS, the Board has determined that the objectives of the trip are aligned with State curriculum standards; and

WHEREAS, any disciplinary infractions occurring during the. field trip will be dealt with within the context of the ACES disciplinary code; and

WHEREAS, the trip is open to all ACES students; and

WHEREAS, the proposal previously submitted to the Board indicates that student participants will pay for their own transportation, meals and lodging but that the District will expend an amount not to exceed $15,000 to defray the cost of the educational component of the field trip, including the cost of chaperones;

BE IT RESOLVED, that the Board of Education hereby authorizes the District to expend a sum not to exceed $15,000 in furtherance of the ACES trip to Costa Rica as described in the proposal approved by the Board on December 18, 2002

30. The resolution recites that the Board has reviewed the proposed curriculum and the educational justification for the trip; indeed, David Albano, co-director of the ACES Program, submitted a proposal to the Board, a copy of which was previously annexed hereto as Exhibit "2", and Mr. Albano gave a presentation before the Board on the proposal at the Board's meeting of December 18, 2002.

31. Based upon the foregoing, the Board determined that the, field trip constituted an integral portion of the curriculum for such students.

32. The ACES Community has taken extended field trips since 1983; the ACES brochure specifically indicates that many of its courses show a preference for experiential learning, and many have an experiential

I component, often including travel; the ACES brochure was previously

annexed hereto as Exhibit "1".

33. Unlike the overseas trips before the Commissioner in Matter of

Christe, where students traveled during the Easter-Passover vacation period

when school was not in session for students, the Costa Rica trip occurs during the period from February 27, 2003 through March 6, 2003, when school is in session for students.

34. The Board recognized that participating students would receive academic credit for their participation in the field trip activity to the same extent as had they been in class.

35. The Board determined that the objectives of the trip were aligned

with State curriculum standards, more specifically the Learning Standards for Living Environment and Social Studies; the Albano proposal specifically discussed alignment with State curriculum objectives, and the Commissioner is respectfully referred thereto.

36. The Board determined that the trip was open to all ACES

students; upon information and belief, no students will be deprived of the opportunity to participate because his or her parent can not afford to defray or contribute toward the cost of personal expenses incident to the trip, such j ( as lodging, food and transportation.

37. The proposal which the Board approved states as such:

'Provision is made through fund raising ("through our annual pie sale, craft sale, tag sale, car wash, holiday dinner and coffee house poetry night") to cover the cost of those students who cannot afford the full cost of the trip".

38. The resolution states that 'any disciplinary infractions occurring during the field trip will be dealt with within the context of the ACES disciplinary code".

39. The field trip also meets the social/ emotional needs of its participants in that it fosters cooperation, teamwork and bonding within the ACES community.

40. Student participants will follow a prescribed curriculum through a series of educational activities; they will be tested and graded on their participation; and they will be disciplined for misconduct.

41. Upon information and belief, the ACES Costa Rica Field Trip meets the criteria set forth in Christe; it cannot be stated in good faith that participation is akin to a private recreational experience.

42. It should be noted that the resolution does not appropriate funds to defray personal expenses incident to the educational component, such as food, lodging and transportation, which expenses have historically been defrayed by parents whose children participate in voluntary, curriculumn-related enrichment activities.

43. Upon information and belief, petitioner is not aggrieved by any extra-curricular fund raising within the ACES community.

44. Upon information and belief, the types of fund raising activities noted in the Albano proposal are not activities subsidized by taxpayer funds.

45. Petitioner's contention that voluntary fund raising activities intended to defray the costs of students whose parents cannot afford to defray or contribute to the cost of personal expenses violates the State Constitution "because the school is engaging in illegal distribution of public monies to private individuals" is patently frivolous, since no taxpayer funds are involved.

46. Petitioner refers in his Verified Petition to a contemplated trip by certain High School science students to the Grand Canyon during the period from April 12-16, 2003; that trip is indeed a recreational experience, and no district funds have been appropriated therefor.

47. As to the issue of the wisdom of authorizing foreign travel, that is a decision consigned to the Board's discretion.

48. Upon information and belief, the United States Department of State has not issued any prohibition or advisory against travel to Costa Rica, nor is there any generalized prohibition against student travel.

49. Furthermore, the Board of Education has no information upon which it can assess any particular threat or risk in connection with the contemplated Costa Rica trip.

50. Upon information and belief, petitioner's unreasonable fear of travel in this instance should not limit the Board's ability to make its own reasoned assessment of the benefits to be derived as against the theoretical risk incident to travel generally.

51. Petitioner contends that the trip exposes respondent to liability for personal injury, for educational malpractice and for medical malpractice. 52. Upon information and belief, there is no basis for the claim.

53. The District maintains casualty insurance policies which cover risks associated with out-of-country travel.

54. No cause of action exists for educational malpractice in the State of New York, so that allegation is without legal basis.

55. As to petitioner's contention that respondent will be providing student participants with "psychiatric services", where is the factual basis for this extraordinary allegation?

56. Upon information and belief, it is as baseless as petitioner's bizarre claim that since Costa Rica (by petitioner's reckoning) is "the Mecca for new-age pagan religions", the experiential component of the field trip involving a study of the rainforest ". . . is tantamount to practicing/ establishing religion".

57. Upon information and belief, the Costa Rica trip is prototypical of similar activities in virtually all school districts throughout the State.

58. Whether it be the senior class trip to Washington, D.C. or Philadelphia or the fifth grade trip to Frost Valley (an outdoor educational experience), the almost universal experience within school districts is that the district will assume financial responsibility for the educational component of the field trip, but the parent or person in parental relation will defray (or contribute to) incidental personal expenses.

59. Upon information and belief, petitioner has not demonstrated a likelihood that he will succeed on the merits.

60. Upon information and belief, a stay is not warranted because petitioner has not demonstrated that he will be reparably injured if the stay were denied.

61. For the foregoing reasons, the stay should be denied.

Lawrence W. Reich

Sworn to before me this 20th day of February, 2003