STATE OF NEW YORK STATE EDUCATION DEPARTMENT In the Matter of the Appeal of IOHANNES C. WTLLE, AFFIRMATION IN Petitioner, OPPOSITION TO REQUEST FOR STAY -against- BOARD OF EDUCATION OF THE Appeal N0.: LEWISBORO UNION FREE SCHOOL DISTRICT, Respondent. STATE OF NEW YORK ss.: COUNTY OF IEFFREY I. CRAVENS, an attorney duly licensed to practice law in the State of New York, af?rm the following under penalty of perjury: 1. I am an associate of the firm of Ingerman Smith, L.L.P., attorneys for the Respondent, BOARD OF EDUCATION OF THE UNION FREE SCHOOL DISTRICT I am fully familiar with the facts and circumstances of this appeal. 2. I submit this Affirmation in Opposition to Petitioner?s request for a Stay Order to reverse the December 16, 2016 Resolution authorizing an agreement With Caliber Yacht Charters (?Caliber?) for the Eighth Grade End of the Year Field Trip (?Field Trip?) and to halt any ?support, ?nancially or otherwise,? of the trip scheduled and planned for May 18, 2017. 3. I am fully familiar with the underlying facts and circumstances of the case from my review of the records of the District and from my conversations with school of?cials. 4. Based on the attached Af?davit of Andrew Selesnick, Superintendent of Schools, the exhibits submitted thereto, the allegations in the Veri?ed Petition, and the exhibits attached thereto, Petitioner?s request for a Stay Order should be denied because: (1) the Petition is untimely; (2) the Stay is not ?necessary to protect the interests of the parties? per the Commissioner?s Regulations at 8 N.Y.C.R.R. 276.1; (3) the school sponsored Field Trip is duly authorized under District policies and applicable law; and (4) cancelling the Field Trip by granting the stay would actually harm District students and taxpayers, including Petitioner. EXHIBITS 5. The following documents and exhibits are referred to: Affidavit of Andrew Selesnick and the exhibits attached thereto: Exhibit A: Board Policy 200 Exhibit B: Field Trip Approval Form Exhibit C: Trip /Transportation Request Exhibit D: January 2017 Parent Letter THE REQUESTED RELIEF IS TIME-BARRED 6. Pursuant to Section 275.16 of the Commissioner?s Regulations, an appeal to the Commissioner ?must be instituted within 30 days from the making of the decision or the performance of the act complained 8 N.Y.C.R.R. 275.16. While the Commissioner may excuse a failure to meet this time limit, the ?reasons for such failure shall be set forth in the petition.? Ld. 7. Petitioner?s Petition and stay request seek to reverse a December 15, 2016 Resolution passed by the Board authorizing the pr0posed agreement with Caliber and estimated expenditures for the Field Trip. Said resolution formally authorized the Field Trip. Accordingly, December 15, 2016 is the decisive date and event which Petitioner references throughout his Petition and seeks to reverse. Yet, the Petition was not executed by Petitioner until February 22, 2017, over two months past the date the Resolution was passed by the Board. Accordingly, the Petition and interim request for a stay are untimely. 8. Petitioner relies on the ?alleged past history of Respondent sponsoring illegal field trips.? 8g Petition 21. Upon information and belief, Petitioner has actively participated in Board meetings in recent years and remains steadfastly apprised of Board and District resolutions and expenditures. To the extent the District has routinely held a similar Field Trip involving a boat cruise in recent years, Petitioner was likely aware of this trip and could have timely opposed it. 9. In any event, Petitioner did not meet the requirement in 8 N.Y.C.R.R. 275.16 by alleging the reasons in the Petition, if any, for his failure to meet the 30?day time limit. Thus, the Petition and interim request for a stay must be dismissed as untimely. STANDARD OF REVIEW 10. A stay is warranted by the Commissioner?s Regulations ?if in the commissioner?s judgment the issuance of such a stay is necessary to protect the interests of the parties, or any of them, pending an ultimate determination of the appe 8 N.Y.C.R.R. 276.1. In all three key Commissioner?s Decisions addressing school field trips, the Commissioner denied the petitioners? requests for stays and allowed the scheduled field trips (to Eur0pe, Costa Rica, Massachusetts, and the Adirondacks) to occur as planned. See Appeal of Christie, 39 Ed. Dept. Rep. 685, Decision No. 14,349 (2000); Appeal of Giardina, 43 Ed. Dept. Rep., Decision No. 15,030 (2004); Appeal of Mary Ellen Clark, Decision No. 15,341 (2006). The stays were denied irrespective of the eventual decisions on the merits?the Commissioner ruled in that the Europe trip was not an appropriate school sponsored field trip and thus could not use any public funds, but ruled in Giardina and Mary Ellen Clark that the trips were appropriate school sponsored trips and could thus utilize incidental public funds. While the decisions do not discuss the rationales for denying the stays, presumably the Commissioner found that staying each trip was not ?necessary to protect the interests of the parties." Similarly, here, where non-taxpayer sources are paying for all trip costs except for chaperones wages, a stay is likewise not warranted to protect the parties? interests. 11. A stay would also be unwarranted under the New York State Court standard pursuant to CPLR 7805 and case law which establish that a movant must prove: (1) a likelihood of success on the merits, (2) irreparable injury absent the granting of the injunctive relief, and (3) a balancing of the equities in the movant?s favor. Lailey V. Ossi Sport Club, Inc, 71 A.D.3cl 1069 (2d Dept 2010). As discussed more fully below, this standard would require denying Petitioner?s stay because the Petition is not likely to succeed on the merits, and all parties?including the District?s eighth grade students, Petitioner, and other District taxpayers?would in fact be harmed if the stay were issued and the Field Trip cancelled. THE FIELD TRIP IS SCHOOL SPONSORED AND DULY AUTHORIZED 12. ?It is well recognized that school field trips are an integral part of the educational experience (see Wolman V. Walter, 433 US. 229, 254 (1977)). Public school - districts have inherent authority under subdivisions 3, 5 and 33 of Education Law ?1709 to include ?eld trips as part of the district's educational curriculum (Cook v. Griffin. 47 23, 28 (4th Dep?t 1975))? Appeal of Christie, 39 Ed. Dept. Rep. 685, Decision No. 14,349 (2000). That recognition was reaffirmed in Appeal of Giardina, 43 Ed. Dept. Rep., Decision No. 15,030 (2004) (?Public school districts have authority to include ?eld trips as part of the district?s educational and in Appeal of Mary Ellen Decision No. 15,341 (2006) (?Public school districts have authority to include ?eld trips as part of the district's educational 13. Consistent with these cases and statutory authority, Board Policy 4531, which was duly adopted by the Board on January 23, 2014, provides in pertinent part: The Board of Education recognizes thet?eld trips cam enhance the instructional program of the schools and will authorize ?eld trips as set forth below. I. School Sponsored Field Trips: For purposes of this policy, a School?Sponsored Field Trip shall be defined as an excursion of students, under adequate professional supervision, which is an integral part of an approved course of study and education program, planned as an extension of classroom activity and for which students and all participants are subject to the District Code of Conduct. . . . It is expected that all school sponsored trips will: 1. Be directly tied to education objectives 2. Be preceded with or followed by instructionally related activities for students; 3. Integrate reading, writing, or speaking across the curriculum; 4. Not be duplicated from grade to grade or subject to subject; 5. Be recommended by staff members based upon careful study of the ?eld trip site and in accordance with ?eld trip regulations Board Policy 4531, annexed to the Petition as "Addendum 3, p. 14. Petitioner wrongly asserts that the Field Trip does not satisfy this Policy or meet the criteria for school sponsored ?eld trips established in Christie. The Field Trip is undoubtedly an ?excursion of students? including approximately 90% or 241 of the 268 District students in the eighth grade (all of whom were invited). One of the key factors considered by the Commissioner in Christie in ?nding that the Europe trip was not an appropriate school sponsored ?eld trip was that it was ?not open to all students who were enrolled in foreign language courses or who had a legitimate academic interest in foreign languages.? Christie. Students had to apply for the trip with letters of recommendation, the first two class levels of French and Spanish language were excluded, and a maximum of forty students could attend. The other two relevant Commissioner?s decisions relied on the ?Open to all students? factor in upholding school sponsored ?eld trips. See Mary Ellen Clark (Massachusetts and Adirondacks 'i trips ?were open to all students in the involved classes?); Giardina (Costa Rica trip was ?open to all students" and those who could not attend were provided ?parallel instruction?). The Field Trip at issue, like the valid trip in Mary Ellen Clark that was open to the entire second grade, is open to the entire eighth grade class. 15. Per Policy 4531, the Field Trip is ?under adequate professional supervision? in the form of one (1) adult to every ten (10) students consisting of many District chaperones, administrators, parents, and a Disn?ict nurse. ?Exhibit attached to the Af?davit of Andrew Selesnick. 16. The first factor discussed in Cm was that the behavior policy of the Europe trip was ?not related whatsoever to the district?s conduct code or rules.? Both Mary Ellen Clark and Giardina applied this factor in upholding district sponsored field trips. As in those cases, the Field Trip is explicitly governed by the school?s Code of Conduct, as stated in the January 2017 letter provided to all eighth grade families, attached to the Af?davit of Andrew Selesnick as ?Exhibit (?The behavior code will be enforced during the entire trip. It is included for your review with this Indeed, a summary version of the Code of Conduct was attached to the letter and referenced in the attached permission slip to be signed by parents and students have read the Behavior Code for Field Trips (attached) and discussed it with my child. I understand that students are responsible for obeying . . . the district ?Code of Conduct. 17. Another factor relied on by and Mary Ellen Clark was whether the school district provided ?input into the content or planning of the trip.? - Despite Petitioner?s apparent ignorance of the actual facts, the? District has closely planned the content of the trip including complying with its own Field Trip policy and regulation. For example, contrary to Petitioner?s claim otherwise, the District completed a ?Field Trip Approval Form,? as signed by middle school principal Rich Leprine on December 14, 2016, with an accompanying Field Trip Checklist. gee Field Trip Approval Form, attached to the Af?davit of Andrew Selesnick as ?Exhibit In addition, a District employee submitted a formal ?Trip Request? for transportation to the District on December 20, 2016 for bussing between the middle school and Yonkers City Dock for all participants. SE Trip Transportation Request, attached to the Af?davit of Andrew Selesnick as ?Exhibit Moreover?the January 2017 District letter to parents speci?es the details of the trip, including the relevant date and times, dietary information, cost, and activities (?We will be cruising the NY harbor, while providing time for dinner, dancing, and plenty of socializing on deck?). SE ?Exhibit to the Af?davit of Andrew Selesnick. 18. Another factor discussed by all three of the relevant Commissioner?s decisions is whether a ?eld trip occurs ?during the regular school day and year.? noted that the Europe trip occurred ?during a school recess,? while Giardina noted that the Costa Rica trip occurred ?during school session? and Mary Ellen Clark noted that the Massachusetts and Adirondacks trips occurred ?during the regular school day during the school year (except that the Natural Helpers trip ended on a Saturday)? Like the latter cases, the Field Trip occurs during the school year. Like the trip in Mary Ellen Clark, the Field Trip occurs during the school day but- extends beyond school hours. The Field Trip departs from the middle school at 2:45pm and returns at approximately 9:30pm. 19. Perhaps most notably, per Board Policy 4531, the Field Trip is an ?integral part of an approved course of study and education program.? Indeed, the relevant Commissioner?s decisions discuss whether a field trip is ?an approved part of the educational program of the school? and has educational objectives. While the cases do not articulate exclusive educational criteria, the Corrunissioner upheld a 4-day trip to ?Nature?s Classroom? that presumably involved some observation or study of nature (Mary Ellen Clark), as well as an "adventure-based? trip to Costa Rica involving academic objectives such as biology, (global studies, and economics (Giardina). 20. Over the past eight years, the Field Trip has become a prominent school tradition and essential component of the District?s eighth grade academic program, specifically by promoting social-emotional learning across disciplines and communication skills in the English Language Arts and Literacy curriculum. Notably, the Field Trip is consistent with the "Guidelines and Resources for Social and Emotional Development and Learning (SEDL) in New York State? adopted by the NYS Board of Regents in July 18, 20111 and the New York State Common Core Learning Standards for English Language Arts and Literacy. Indeed, the Speaking and Listening standards for eighth grade students include: ?Seek to understand other perspectives and cultures and comm?nicate effectively with audiences or individuals from varied backgrounds.? ?Use their experience and their knowledge of language and logic, as l?n 1 ?Guidelines and Resources for Social and Emotional Development and Learning (SEDL) in New York State,? NYS BOARD OF REGENTS, July 18, 2011, avaiiable at 9 well as culture, to think analytically, address problems creatively, and advocate persuasively.? 6: ?Adapt speech to a variety of contexts and tasks, demonstrating command of formal English when indicated or appropriate.?2 The Field Trip promotes these standards by allowing District eighth graders to adapt their communications skills by interacting with each other, chaperones, and boat staff in a unique context with social circumstances and/ or challenges unique to the boat setting. 21. The Field Trip is also ?directly tied to education objectives? per Board Policy 4531. The District?s Aims and Goals, as stated in Board Policy 200, include ?To work for the fullest development of each child to the limits of his or her abilities,? and ?To help the student to gain a sense of personal worth and dignity, to learn about seth'ng realistic personal goals, to learn from both success and failure and to learn to exercise self-discipline.? Board Policy 200, attached to the Affidavit of Andrew Selesnick as ?Exhibit There is no question that a ?eld trip involving such a special activity to reward students? completion of their middle school academic program?the boat cruise along the Hudson River to NYC?fosters students? sense of personal worth and achievement. 22. Per Board Policy 4531, the Field Trip is also ?preceded with or followed by instructionally related activities for students,? to the extent the trip reinforces social-emotional learning across the curriculum and communication skills 2 ?Speaking and Listening Standards 6?12: Grade 8 Students,? New York State P-12 Common Core Learning Standards for English Language Arts Literacy, NEW YORK STATE EDBCATION DEPARTMENT, available at arts-and-literacy. 10 in the English Language Arts and Literacy curriculum in the days, weeks, and or months preceding and following the Field Trip. 23. Per Board Policy 4531, the Field Trip is not ?duplicated from grade to grade or subject to subject.? Indeed, this singular event occurs once at the apex of every middle school student?s course of study and is thus meant to reinforce and reward students? academic and social-emotional acluevement. 24. Lastly, per Board Policy 4531, the Field Trip is ?recommended by staff members based upon careful study of the ?eld trip site and in accordance with field trip regulations.? The selection of Caliber as a vendor and the Field Trip components were carefully vetted by District personnel, who corresponded with Caliber over the course of months to ensure that the trip met the District?s wishes, educational aims, and ?nancial considerations. The District retained legal counsel to further ensure that the Field Trip was consistent with the District?s interests and policies. As already stated, the Field Trip was planned in accordance with the District?s relevant regulations. 25. The relevant Commissioner?s decisions, while not articulating exclusive educational criteria for district sponsored field trips, indicate that the Petitioner, who is challenging the Field Trip, bears the burden of proving that the trip does not have a suf?cient educational component. In Mary Ellen Clark, the Commissioner noted that respondents alleged and the petitioner did not deny that ?the proposals addressed content, educational objectives and curriculum utilization, that the trips were a part of the schools? educational programs, that the trips 11 occurred during the regular school day during the school year (except that the Natural Helpers trip ended on a Saturday) and that the trips were open to all students in the involved classes.? Accordingly, the Commissioner could not ?conclude that petitioner has met her burden of proving that trips were not part of the educational program.? The same circumstances apply here. Given the District?s asserted educational justi?cations of the Field Trip, the Petitioner has not carried his burden of discrediting those justi?cations, certainly not at this early stage?~?before the merits have been fully briefed?to warrant a stay. 26. Although Petitioner is concerned about the alleged expenditure of taxpayer funds, the funding for the cost of Caliber?s fees (estimated at $34,400), as well as the transportation to and from the Field Trip (approximately $2,124), is through non-taxpayer sources. The contract between Caliber and the District has not yet been ?nalized and signed by the parties, despite Petitioner?s reliance on the draft agreement. Accordingly, the ?nal cost to the District if any remains undetermined. However, to the extent the District pays for wages for the District chaperones, these would be valid costs incidental to a district sponsored ?eld trip under the applicable Commissioner?s decisions. ?g Giardina (upholding payment for chaperones where ?any incidental bene?t to the chaperones does not negate the public purpose of providing the educational program approved by respondent?); Mary Ellen Clark (upholding incidental District payment for chaperones and bus drivers; ?[W]here the expenditure primarily furthers a proper public purpose and only incidentally bene?ts an individual, the incidental private bene?t will not 12 invalidate the action?). Accordingly, the Field Trip is valid under the District?s own policies and applicable law, and Petitioner?s request for a stay should be denied. GRANTING THE STAY AND CAN CELLING THE FIELD TRIP WOULD HARM STUDENTS AND TAXPAYERS INCLUDING PETITIONER 27. Petitioner?s request for a stay is improper under 8 N.Y.C.R.R. 276.1 because a stay is not ?necessary to protect the interests of the parties, or any of them, pending an ultimate determination of the appeal.? The entire cost of Caliber?s fees and transportation come from non-taxpayer sources. Thus, no taxpayer including Petitioner can state a valid claim that his/ her tax contributions are being improperly used by the District. While the District may ultimately decide to pay for wages for chaperones, this cost is not yet definite and is dependent on the final contract with Caliber. Thus, Petitioner cannot claim that he faces some imminent misuse of funds, which is merely speculative at this point. In any event, the Commissioner?s decisions are clear that such incidental expenses would be proper for an appropriate district supervised ?eld trip. 28. If anything, granting a stay and cancelling the Field Trip would harm all relevant parties. Currently, approximately 232 District parents have fully paid for the cost of the trip for their respective eighth grade students. All of these parents and students are looking forward to the Field Trip, have already made ?nancial arrangements to pay for the trip, and may have made other arrangements in reliance on the Field Trip. The students themselves have long anticipated the Field Trip and associated it with the successful completion of their middle school careers and academic achievement. Cancelling the trip now would be utterly disappointing and 13 undermine the values and educational objectives of the trip?the af?rmation of students? worth and dignity, reward of their academic achievement, and reinforcement of their academic communications skills and social-emotional learning. 29. From a ?nancial standpoint, granting a stay and cancelling the Field Trip would also harm District students, parents, and other taxpayers like Petitioner. As Petitioner noted, the District has already paid a non?refundable $5,000 deposit from the non?taxpayer funds for the trip. However, if the trip is cancelled now, the $5,000 deposit will be forfeited, and! the District will be forced to return all money collected from parents back to them and make up the $5,000 loss from other funding sources including potentially taxpayer funds. Issuing refunds to .232 District parents will also result in signi?cant administrative time and costs that may ultimately be shouldered by taxpayers like Petitioner, not to mention any costs associated with the foreseeably large number of parent complaints about the cancelled trip. Indeed, the legal expenses alone would likely exceed the entire cost to the District of holding the Field Trip as planned. CONCLUSION 30. Petitioner?s entire Petition and request for a Stay Order should be dismissed pursuant to Section 275.16 of the Commissioner?s Regulations because the Petition is untimely and Petitioner has alleged no excuse for his untimeliness. In the event the Commissioner considers Petitioner?s request for a stay, it should be denied because a stay is not "necessary to protect the interests?of the parties, or any of them, 14 pending an ultimate determination of the appeal? under 8 N.Y.C.R.R. 276.1. Indeed, granting the stay and cancelling the Field Trip would harm all parties to the extent the District would be forced to reimburse parents and the non-refundable deposit, expenses that could be shouldered by taxpayers, and the District?s eighth graders would lose all bene?ts of the trip. Lastly, the Field Trip is duly authorized under the applicable District policies and law, and thus Petitioner is likely to lose his appeal on the merits. Therefore, the District respectfully requests that the Petition and Petitioner?s request for a Stay Order be dismissed in their entirety. IEFEFREY I. CRAVENS, ESQ. 15