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Decision No. 14,988

Appeal of VALENTINA GARMAEVA, individually and on behalf of her son DENIS, from action of the Board of Education of the City School District of the City of New York, the Chancellor and Charles Majors, Superintendent of Community School District 73 regarding translation of school related information.

Decision No. 14,988

((November 26, 2003)

 

Advocates for Children of New York, Inc., attorneys for petitioner, Sonal Y. Patel, Esq., of counsel

 

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter and Jane Goldberg, Esqs., of counsel

 

MILLS, Commissioner.--Petitioner challenges the alleged failure of the Board of Education of the City School District of the City of New York, the Chancellor and Superintendent Majors (hereinafter “respondents”) to provide her with school related information in a language that she understands. The appeal must be dismissed.

Petitioner’s son, Denis, attended tenth grade at respondents’ Sheepshead Bay High School in Community School District 73 during the 2001-2002 school year. He is classified as limited English proficient (“LEP”) and has attended English as a Second Language (“ESL”) classes. According to the record, Sheepshead Bay High School serves an ethnically diverse student population with 13% classified as LEP, and of those, an estimated 17% speak Russian as their native language. Approximately 15 staff members speak Russian fluently.

Petitioner claims that she speaks Russian and does not read, speak or understand English. Petitioner alleges that her husband, who speaks and understands some English, requested that the school provide her with an interpreter but that she has not attended parent-teacher conferences for her son because respondents have not provided her with a Russian language interpreter to communicate with school staff. She further alleges that she has not received a translation of her son’s report cards or standardized assessments and that she has not received translated information about the parents’ association or school leadership team.

Petitioner contends that respondents’ alleged failure to provide her with Russian translations of school related information violated federal laws, including Title I of the Elementary and Secondary Education Act,* the Bilingual Education Act,* Title VI of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974. Petitioner also contends that respondents violated Education Law §3201; Part 154 of the Commissioner’s regulations; and the “Guidelines for Programs under Part 154 of Commissioner’s Regulations for Pupils with Limited English Proficiency,” published by the State Education Department in 1998. Petitioner contends further that respondents violated the New York City Board of Education’s Resolution on the “Establishment of Policy on Provision of Translation and Interpretation Services for Limited-English Speaking Parents.” Petitioner seeks an order directing respondents to comply with the above provisions of law, regulation, guidelines and resolution. On August 23, 2002, I granted petitioner’s request for interim relief.

Petitioner also seeks to consolidate this appeal with several other appeals brought by parents of limited English proficient students in the New York City School District raising similar claims. Petitioner purports to represent a class of individuals, with the consolidated petitioners in the other four appeals as representatives. Respondents oppose petitioner’s request for class status and seek dismissal of petitioner’s federal claims on procedural grounds.

Respondents contend that school related information was sent to petitioner in Russian and English, that petitioner has spoken in English with her son’s guidance counselor, and that petitioner would have been provided translator service had respondents been informed that she required it.

Before turning to the merits, I will first address several procedural matters. Petitioner seeks to consolidate this appeal with several others pending before me. However, review of the appeals reveals significant differences of fact. Therefore, I decline to do so.

To the extent petitioner attempts to bring this appeal on behalf of a class, class certification is also 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 Colety, et al., 42 Ed Dept Rep 162, Decision No. 14,806; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796; Appeal of Finkel, 41 id. 74, Decision No. 14,619). 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 Recore, 42 Ed Dept Rep ___, Decision No. 14,856; Appeal of Colety, et al., supra). Petitioner has failed to meet these requirements.

Regarding petitioner’s federal claims, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of Finkel, supra) or the Equal Educational Opportunities Act (Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594) or to obtain relief under the No Child Left Behind Act (See, 20 USC §7844[a][3][C]). Accordingly, these claims are dismissed.

With respect to petitioner’s remaining claims, petitioner contends that respondents’ alleged failure to provide her with school related information in a language she understands violates Education Law §3201, Part 154 of the Commissioner’s regulations, New York State Education Department guidelines and respondents’ policy. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR §275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960; Appeal of Kessler, 43 id. ___, Decision No. 14,958).

With respect to petitioner’s claim under Education Law §3201, that statute is set forth at Article 65, Part I of the Education Law pertaining to compulsory education. The statute prohibits discrimination against student admission or assignment to public schools based on race, creed, color or national origin. The petition is devoid of any allegation that petitioner’s son has been denied admission to the district schools or assigned to a school on a prohibited ground. Consequently, I find no basis for petitioner’s §3201 claim.

Part 154 of the Commissioner’s regulations requires each board of education to “distribute to parents, or other persons in parental relation to pupils with limited English proficiency, school related information in English or when necessary the language they understand” (8 NYCRR §§154.3[c] and 154.4[a]). Petitioner asserts that she speaks only Russian and that respondents have not provided her with adequate translation or interpretation services. She claims that Sheepshead Bay High School has not provided her with any translation or interpreter services during parent-teacher conferences, so she does not attend them, and that she has not received any school related information translated into Russian.

Respondents submit an affidavit of the Sheepshead Bay High School principal who asserts that there were fifteen Russian-speaking staff members, including paraprofessionals and teachers, at Sheepshead Bay High School during the school year available to provide interpretive services for petitioner, and that her son’s former guidance counselor has spoken in English with petitioner regarding her son’s performance at school. Petitioner submits no reply to refute these statements. After careful review of the aforementioned evidence, I find petitioner has not met her burden of proof.

Petitioner’s claim that she has not received any school related information – including her son’s report card and standardized tests, and parent association and school leadership team information - translated into Russian also is not supported by the record. While petitioner claims that she did not receive such information translated into Russian, she submits no copies of any untranslated notices that she received in English to support her claim.

As part of their answer, respondents submit an affidavit by the Sheepshead Bay High School principal asserting that petitioner received school related documents in English and Russian throughout the 2001-2002 school year. The principal avers that documents such as student test scores, school brochures, parent letters, parent orientation meeting notices and parent manuals are routinely translated into Russian and sent home to parents. Specifically, the principal provides copies of documents in both English and Russian that were sent to petitioner, including letters explaining that her son was identified for placement in a bilingual educational program in classes that are taught in both Russian and English and the Home Language Identification Survey dated September 28, 2001. Neither party submits a copy of Denis’s report card; however, copies of Russian translations of the other documents are attached to the principal’s affidavit.

The principal’s affidavit asserts that Russian-speaking teachers at Sheepshead Bay High School taught Denis native language arts, science and social studies classes and translated written school related materials into Russian to be sent home to parents. In addition, respondents submit an affidavit by the superintendent of the Division of English Language Learners and Parent Outreach of the New York City Department of Education enumerating the numerous school related documents and videos translated into Russian and provided to New York City schools for dissemination to parents, as necessary.

As noted above, in an appeal to the Commissioner, petitioner has the burden of establishing the facts entitling her to relief. Significantly, petitioner failed to submit a reply to respondents’ answer and affidavits in support thereof. After careful review of the record before me, I find petitioner has not met her burden. On this record, it is unclear whether petitioner requires Russian translation of school related information and why she may not have received the Russian-translated information respondents’ principal asserts was sent to her. Respondents have submitted copies of critical documents provided petitioner in English and Russian, while petitioner does not submit a single copy of any document written only in English she claims to have received. In addition, petitioner admits that her husband speaks and understands some English and does not deny respondents’ assertion that she spoke English with her son’s former guidance counselor at the school. The record, therefore, does not support petitioner’s claim.

Finally, petitioner claims that respondents’ alleged failure to provide her with school related information in a language she understands is not in compliance with an October 2001 New York City Board of Education Resolution on the “Establishment of Policy on Provision of Translations and Interpretation Services for Limited-English Speaking Parents.” Review of the resolution reveals that the sole provision that might be relevant to this appeal is limited to directing the Chancellor to develop and present within 90 days “an implementation plan for improving verbal and written communications with limited English-speaking parents that are critical to their children’s education.” This requirement does not directly relate to the specific allegations in the petition. Although it appears that no implementation plan has been developed thus far, the petition does not contain any allegation regarding the timeliness of the implementation plan. It merely asserts in a conclusory fashion that respondents are not in compliance with their policy by virtue of their alleged failure to provide translated material.

Based upon the foregoing, petitioner’s appeal must be dismissed. Respondents, however, are reminded of their continuing obligation to comply with all requirements of Part 154 of the Commissioner’s regulations.

 

THE APPEAL IS DISMISSED.

END OF FILE


* Effective January 8, 2002, Title I of the Elementary and Secondary Education Act was repealed and re-enacted as Title I of the No Child Left Behind Act. Also effective January 8, 2002, the Bilingual Education Act (Title VII of the Elementary and Secondary Education Act) was omitted and re-enacted as Title III of the No Child Left Behind Act.