Decision No. 13,398

(April 7, 1995)

SOBOL, Commissioner.--Petitioner appeals respondents' issuance of a memorandum to community school districts and high school superintendencies regarding the implementation of 8 NYCRR 100.11. New York City Community School Board 3 submits an amicuscuriae brief on behalf of petitioner. The appeal must be dismissed.

In the spring of 1993, representatives of the New York City Chancellor and Board of Education ("central board") began planning the development of a central board policy and Chancellor's circular regarding '100.11. To prepare for the implementation of '100.11, members of the Chancellor's staff met with representatives of major constituent groups. In addition, the Chancellor's staff consulted with Deputy Commissioner Arthur Walton and Assistant Commissioner Samuel Corsi of the New York State Education Department, who provided technical assistance.

In a memorandum dated May 18, 1993, Ms. Guasp, Executive Director of the Division of Instruction and Professional Development for the central board, notified all superintendents that an information session regarding '100.11 would be held on June 2, 1993. By letter to Ms. Guasp, dated August 13, 1993, Assistant Commissioner Corsi responded to a number of questions submitted by attendees of the June 2, 1993 session.

By letter dated October 13, 1993, Chancellor Cortines requested the Commissioner of Education to extend the February 1, 1994 deadline for compliance with '100.11. Petitioner made a similar request. The Commissioner denied the Chancellor's request by letter dated November 1, 1993. In that letter, the Commissioner directed the Chancellor to submit a plan by February 1, 1994, in accordance with the regulation, including: a description of the activity undertaken by the New York City Board of Education from May 1992 to date to prepare for compliance with '100.11; an outline description of the system of school planning and decisionmaking toward which New York City will be moving; a description of the planning and other preparatory activity in which the New York City school system will consult with and prepare teachers, parents, principals and other relevant parties, and to develop the outline into an operating plan; and an indication of the date(s) by which schools within the system will come into full compliance.

Thereafter, on or about November 5, 1993, the Chancellor's office issued a memorandum to all superintendents regarding the implementation of '100.11. The memorandum addressed, among other things, the selection of parents, administrators and teachers to planning committees. A copy of the regulation and a planning format, with the six questions '100.11 required each committee to address, was attached to the memorandum. The memorandum requested superintendents to submit their plans to the central board by December 17, 1993.

Petitioner commenced this appeal on November 30, 1993 and requested that respondents be stayed from enforcing the November 5, 1993 memorandum. On December 13, 1993, I denied the request for a stay.

Petitioner contends that the Chancellor's memorandum of November 5, 1993 is invalid because it fails to incorporate the mandates of the Commissioner's November 1, 1993 letter. Petitioner also contends that the Chancellor's memorandum violates '100.11 because it does not adequately describe the mandated process of selection of parent representatives to district planning committees, the mandated participation of parents or the mandated contents of the district plan. Furthermore, petitioner maintains that the memorandum does not adequately address the relationship between the Chancellor's school-based management/shared decisionmaking ("SBM/SDM") regulation or existing SBM/SDM councils. Petitioner also maintains that the one-month period between distribution of the memorandum and the due date of district plans did not allow for the necessary selection of parent representatives by their peers or the effective participation of such parent representatives in the development of district plans. Petitioner requests that I order the Chancellor and respondent board to issue a revised memorandum which addresses the issues in the Commissioner's November 1, 1993 letter and comprehensively describes the mandated selection of parent representatives and parental participation in the development of district plans.

Respondents maintain that they are committed to parental involvement and have fully complied with '100.11. Respondents further maintain that petitioner lacks standing under 8 NYCRR 100.11.

Before reviewing the merits, it is necessary to address two procedural issues. First, petitioner requests that this appeal be considered a class appeal and that petitioner be allowed to represent the interests of all parents of children enrolled in the New York City public schools. A class appeal is permitted "only 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[a]). Petitioner has not established that the issues of fact and law in this appeal are the same for all members of the proposed class of parents. Moreover, where petitioner fails to set forth the number of individuals he or she seeks to represent, class status will not be permitted (Appeal of Reid, 32 Ed Dept Rep 587). In this case, petitioner fails to set forth the number of individuals in the proposed class. Class status is, therefore, denied.

Second, respondents argue that petitioner does not have standing to appeal because it is not an aggrieved party under '100.11. Section 100.11(b) requires that each district plan be developed in collaboration with a committee composed of the superintendent of schools, administrators, teachers and parents selected by school-related parent organizations. A school-related parent organization is defined as:

In districts in which there are no school-related parent organizations, parents shall be selected by their peers in the manner prescribed by the board of education (id.). Furthermore, '100.11(e)(1) provides that "in the event that the board of education ... fails to provide for consultation with, and full participation of, all parties in the development of the plan as required by subdivisions (b) and (d) of this section, the aggrieved party or parties may commence an appeal to the Commissioner pursuant to section 310 of the Education Law."

If '100.11(b) is read broadly, it appears that petitioner meets the definition of a "school-related parent organization." Petitioner is a not-for-profit corporation incorporated under New York law. Its membership appears to consist of parents of children attending the New York City School District, and its purposes allegedly include the promotion of parental involvement in public education. For purposes of this appeal, therefore, I find that petitioner has standing.

The appeal, however, must be dismissed on the merits. Petitioner maintains that the Chancellor's memorandum regarding implementation of '100.11 is invalid for two reasons. First, petitioner contends that the memorandum is invalid because it fails to incorporate the mandates of the Commissioner's letter of November 1, 1993. Essentially, the Commissioner's letter denied the Chancellor's request for an extension of time to file New York City's shared decisionmaking plan. The letter also asked that the central board's plan include some additional information other than that required by 8 NYCRR 100.11(c). This letter, however, did not impose any additional requirements on community school districts or high school superintendencies. Accordingly, I find that the mere failure to mention the Commissioner's letter does not invalidate the Chancellor's memorandum.

In addition, petitioner argues that the Chancellor's memorandum violates '100.11 in that it did not adequately describe the mandated process for selecting parent representatives to district planning committees, the mandated participation of parents or the mandated contents of the district plan. Furthermore, petitioner argues that the memorandum did not adequately address the relationship between the Chancellor's school-based management/shared decisionmaking (SBM/SDM) regulation or existing SBM/SDM councils and the school level governance councils.

Section 100.11 addresses the roles of the central board, community school districts and high school superintendencies in the shared decisionmaking process. Specifically, '100.11(b) provides:

That section requires the central board to include the plans of the community school districts and high school superintendencies into a single plan. It does not, however, specifically require the issuance of guidelines. In addition, I note that the regulation clearly imposes a duty on each community school board and each high school superintendency to develop its own individual plan in accordance with the regulation. The records of the State Education Department indicate that the Department advised community school districts and high school superintendencies about '100.11 and its requirements as early as April 1992.

Furthermore, the record indicates that the Chancellor and central board did provide at least some guidance to community school boards and high school superintendencies regarding the implementation of '100.11. The central board's Division of Instruction and Professional Development invited all superintendents to attend an information session on June 2, 1993 regarding '100.11. Furthermore, a copy of the regulation and a planning format, with the six questions '100.11 required each committee to address, was attached to the Chancellor's November 5, 1993 memorandum. Therefore, it appears that the Chancellor and central board made an effort to inform community school boards and high school superintendencies about the requirements of '100.11, including the requirements for parental involvement. Accordingly, there is no basis to require the Chancellor to issue a revised memorandum.

Moreover, petitioner has failed to demonstrate that the Chancellor's memorandum resulted in a lack of involvement by parent groups. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163). Petitioner has not submitted any evidence that the Chancellor's memorandum of November 5, 1993 led to a violation of '100.11. Accordingly, the appeal is dismissed.

Although the appeal is dismissed, I am constrained to comment on the actions of the Chancellor and central board. The Board of Regents originally adopted '100.11 in March 1992. The regulation clearly required every public school district to develop and adopt a shared decisionmaking plan by February 1, 1994. Thus, the central board had notice of the regulation for almost two full years prior to the deadline for filing a district plan. Surely, given this period of time, the central board could have more effectively assisted the community school districts and high school superintendencies with the implementation of '100.11. I urge the central board and school administration to increase the level of communication in the future, including communication with representatives of school-related parent organizations. The State Education Department will continue to work with the Chancellor and central board to provide technical assistance regarding the implementation of '100.11.

THE APPEAL IS DISMISSED.

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