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Decision No. 16,243

Appeal of M.Z., on behalf of her daughter J.Z., from action of the New York City Department of Education regarding class placement.

Decision No. 16,243

(June 8, 2011)

Michael A. Cardozo, Corporation Counsel, attorney for     respondent, Gloria Yi, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioner challenges a decision of the New York City Department of Education (“respondent”) to retain her daughter (“J.Z.”) in sixth grade for the 2010-2011 school year.  The appeal must be dismissed.

J.Z. attended sixth grade at I.S. 119 in Community School District 24 during the 2009-2010 school year.  Respondent’s regulation governing student promotion requires that students in grade six attain a score of at least proficiency level 2 on the State English Language Arts and mathematics assessments in order to be promoted to grade seven.  The regulation also provides that students who do not score at least a proficiency level 2 on the State assessments may be considered eligible for promotion under certain circumstances pursuant to an appeal and review process that would occur in June and/or August.

J.Z. scored at proficiency Level 1 on the State English Language Arts and mathematics assessments administered in the spring of 2010 and was not promoted to the seventh grade that June.  She attended summer school in an effort to meet the eligibility requirements for promotion.  J.Z. passed the summer school courses, achieved proficiency level 2 on the citywide English Language Arts assessment, but achieved only proficiency level 1 on the citywide mathematics assessment.  Petitioner was notified in August of 2010 that T.Z. would not be promoted.  Petitioner appealed that determination pursuant to the August appeal and review process under respondent’s regulation.  Respondent’s principal reviewed J.Z.’s portfolio and based on her performance on the citywide mathematics test, her summer coursework in math, and her teacher’s observations, determined that the student was not prepared for promotion to grade seven.  By letter dated September 1, 2010, petitioner was notified of respondent’s principal’s determination.  Petitioner appealed and by letter dated October 6, 2010, respondent’s community superintendent notified petitioner of her determination to retain J.Z. in the sixth grade.  This appeal ensued.

Petitioner submits that her daughter has been treated unfairly and seeks an order promoting J.Z. to the seventh grade.  Petitioner claims that respondent violated §504 of the Rehabilitation Act for failing to provide J.Z. with additional testing time as a §504 accommodation.  Petitioner also requests a revision to and a copy of J.Z.’s mathematics test and portfolio.

Respondent contends that the appeal is untimely.  Respondent also maintains that petitioner failed to meet her burden of demonstrating a clear legal right to the relief requested or her burden of establishing the facts upon which she seeks relief.  Respondent further asserts that there is no §504 accommodation request form on file for J.Z.  Respondent maintains that the decision to retain J.Z. was proper in all respects.

First, an appeal to the Commissioner must 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; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).  In this case, while the record indicates that respondent sent written notice of its final determination to petitioner on October 6, 2010, there is nothing in the record as to when petitioner actually received the notice. Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be October 13, 2010.  Petitioner, therefore, had until November 12, 2010 to serve her petition. 

An affidavit of service reflects that a petition was served on November 10, 2010.  By letter dated November 16, 2010, that petition was returned to petitioner by my Office of Counsel because it did not comply with the Commissioner’s regulations.  Petitioner was notified that if a corrected petition was served and filed within two weeks from the date of such letter, the appeal would be deemed to have been initiated on the date the original petition was served on respondent.  Petitioner re-served a corrected petition on November 22, 2010 and filed the petition on November 24, 2010, within two weeks of the November 16, 2010 letter.  The appeal, therefore, is timely (Appeal of L.I., 50 Ed Dept Rep ___, Decision No. 16,195; Appeal of B.K. and R.K., 44 id. 195, Decision No. 15,146).

To the extent that petitioner claims that respondent violated §504 of the Rehabilitation Act of 1973, the appeal must be dismissed for lack of jurisdiction.  Enforcement of §504 of the Rehabilitation Act of 1973 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425). 

To the extent that petitioner requests access to and revision of her child’s records, this is a Family Education Rights and Privacy Act (“FERPA”) issue over which the Commissioner lacks jurisdiction.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598). 

The appeal must be dismissed on the merits.  Education Law §1709(3), which is made applicable to respondent by Education Law §2554(1), authorizes a board of education “to prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.”  Consistent with that authority, boards have the power to place students in particular grades or classes (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680).  In New York City, the powers of the board of education in this regard are exercised by the Chancellor (Education Law §§2554[1] and 2590-h[17]), and Chancellor’s Regulation A-501(VI)(P),(S) and(T) delegates that authority to the community superintendent.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Based on the record before me, petitioner has not met her burden of showing that respondent’s decision to retain her daughter in sixth grade was illegal, arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE