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Decision No. 15,176

Appeal of A STUDENT SUSPECTED OF HAVING A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of New York, the Chancellor, and Marcia Lyles, Superintendent of Region 8, regarding provision of school related information.

Decision No. 15,176

(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 Lyles (hereinafter "respondents") to provide her with school related information in a language that she understands.  The appeal must be dismissed.

Petitioner�s son is a student who attended third grade at P.S. 18 in Region 8 during the 2003-2004 school year.  Petitioner�s son is not a limited English proficient student. Petitioner�s primary language is Spanis h. According to her petition, she does not speak or understand English proficiently.

Petitioner alleges that respondents failed to provide her with required translation and interpretation services. 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 200 of the Commissioner�s regulations, 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," and Chancellor�s Regulations pertaining to Parent Association meetings and student promotions. 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). 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 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 (Appeal of Cartagena, supra).

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

Finally, 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). The record in this appeal is devoid of any evidence that petitioner�s son has been identified as a student with a disability as defined under Education Law �4401(1) and �200.1(zz) of the Regulations of the Commissioner. Consequently, I find petitioner has no standing for her Part 200 claim (Appeal of Finkel, supra). 

THE APPEAL IS DISMISSED.

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