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Decision No. 15,174

Appeal of N.M., individually and on behalf of her daughter N.C., from action of the Board of Education of the City School District of the City of New York, the Chancellor, and Kathleen M. Cashin, Superintendent of Region 5, regarding provision of school related information.

Decision No. 15,174

(February 16, 2005)

Anusuya Chatterjee, Esq., attorney for petitioner

Michael A. Cardozo, Corporation Counsel, attorney for respondents, Theresa Crotty and Joshua Chao, Esqs., of counsel

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

Petitioner�s daughter, N.C., is a student who attends ninth grade at Richmond Hill High School in Region 5.  Petitioner� s primary language is Spanish. According to her petition, she does not speak or understand English proficiently.

Petitioner alleges that respondents failed to provide her with required translation or interpretation services. Petitioner claims that she is forced to rely on N.C. to translate school related information, including information about parents� associations or school leadership teams, and has not received translations of her daughter�s report card or standardized assessments.  Petitioner also alleges that she has requested interpreters for parent-teacher conferences and has been told that there are no interpreters available. Petitioner further claims that she did not receive translated information in connection with N.C.�s suspension from school from March 16 through March 22, 2004.

Petitioner contends, therefore, that respondents have violated her rights under federal law, including Title I of the Elementary and Secondary Education Act, Title III of the Elementary and Secondary Education Act, Title VI of the Civil Rights Act of 1964, and the Equal Educational Opportunities Act of 1974.  Petitioner further claims that respondents have violated her rights under New York State Education Law �3201, Part 154 of the Commissioner�s regulations and the related New York State Education Department guidelines, Chancellor�s Regulations pertaining to disciplinary proceedings and Parent Association meetings and a New York City Board of Education Resolution on the "Establishment of Policy on Provision of Translation and Interpretation Services for Limited-English Speaking Parents."  She seeks an order directing respondents to comply with these provisions.  On June 28, 2004, petitioner�s request for interim relief was denied.

Respondents seek dismissal of petitioner�s federal claims on procedural grounds.  Respondents also contend, among other things, that the appeal is untimely and that they provide school related information to petitioner in Spanish and, therefore, are in compliance with applicable law.

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 Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991; Appeal of Finkel, 41 id. 74, Decision No. 14,619) or the Equal Educational Opportunities Act (Appeal of Rits, 43 Ed Dept Rep 257, Decision No. 14,989; 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]; Appeal of Garmaeva , 43 Ed Dept Rep 253, Decision No. 14,988).  Therefore, these claims are dismissed.

An appeal to the Commissioner must also be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR �275.16). The appeal is timely with respect to N.C.�s suspension from school from March 16 through March 22, 2004. Petitioner was notified of the suspension on March 16, 2004 and commenced this appeal on April 1, 2004, well within the 30-day period.

The appeal is also timely with regard to petitioner�s claim that respondents failed to provide her with required translation or interpretation services, which if determined to be unlawful, would constitute a continuing wrong subject to complaint at any time (Appeal of Upstate Home for Children, Inc., 43 Ed Dept Rep 505, Decision No. 15,067; Appeal of Nettles, 31 id. 437, Decision No. 12,691). Therefore, her claims under State law, regulation and policy are timely.

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 Cartagena, supra; Appeal of Kessler, 43 Ed Dept Rep 170, Decision No. 14,958). Education Law �3201 prohibits discrimination in 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 daughter 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 (Appeal of Cartagena, supra).

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 claims that she does not know whether respondent assessed her daughter to determine if she qualifies as a limited English proficient student. Respondents have provided undisputed evidence that N.C. took the Language Assessment Battery in 1994 and, based on her score, was not identified as a limited English proficient student. Since petitioner has failed to establish that her daughter is a pupil with limited English proficiency, Part 154 does not apply. Consequently, I find no basis for petitioner�s Part 154 claim. 

Moreover, petitioner has failed to submit the regulation and resolution that she contends were violated as part of her petition and has failed to establish that respondents violated any specific provision of the regulation or resolution. Accordingly, petitioner has not sustained her burden on claims that respondents violated either the resolution or regulation (Appeal of Ravick, 40 Ed Dept Rep 262, Decision No. 14,477).

To maintain an appeal pursuant to Education Law �310, a party must be aggrieved in the sense of having suffered personal injury to his or her civil, personal or property rights (Appeal of J.L., 41 Ed Dept Rep 62, Decision No. 14,615). As the parent of a student who has been suspended from school, I find that petitioner has standing to challenge respondents� failure to provide her with appropriate written and oral information in conjunction with her daughter�s suspension.

With respect to N.C.�s short-term suspension, Education Law �3214(3)(b)(1) authorizes a board of education or trustees, superintendent of schools, district superintendent or a school principal to suspend a student for a period of five days or less. Requirements related to a suspension of five days or less are also set forth in �100.2(l)(4) of the Commissioner�s regulations. That section states, in pertinent part, "Such notice and informal conference shall be in the dominant language or mode of communication used by the parents or persons in parental relation to the pupil."

In the present appeal, the notice of the superintendent�s suspension was not translated into Spanish, which is petitioner�s dominant language. The informal conference between petitioner and the school official was also in English and translated by N.C. in the presence of a school aide fluent in Spanish. Accordingly, I find that respondents failed to comply with the requirements of �100.2(l)(4) of the Commissioner�s regulations and I admonish respondents to comply with such requirements in future disciplinary proceedings.

In light of this disposition, I need not address the parties� remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents henceforth fully comply with the written notice and informal conference requirements in �100.2(l)(4) of the Commissioner�s regulations.

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