Appeal of K.M., on behalf of herself and her child, from action of the Stepping Stone Pre & Grade School regarding access to school records.

Decision No. 18,063

(December 15, 2021)

Samuel L. Drukman, Esq., attorney for petitioner

ROSA., Commissioner.--Petitioner appeals a determination of the Stepping Stone Pre & Grade School (“respondent” or “Stepping Stone”) denying her access to school records of her child (“the student”).  The appeal must be dismissed.

At the time of the events underlying this appeal, the student attended second grade at Stepping Stone, a nonpublic school located in St. Albans, New York.  Petitioner’s mother had custody of the student, and petitioner had visitation rights.  

By letter dated March 1, 2021, petitioner, through counsel, requested a copy of the student’s file maintained by respondent, including copies of “any enrollment agreement or contract.”  Petitioner did not receive a response.

On April 16, 2021, petitioner’s counsel spoke to respondent’s administrative director by telephone.  According to petitioner, the administrative director indicated that Stepping Stone would not provide petitioner with a copy of the student’s enrollment agreement because:  (1) it was not an “educational record”; (2) petitioner was not a signatory to the enrollment agreement; and (3) the student’s grandmother and legal guardian, who signed the enrollment agreement, had instructed respondent not to provide the agreement to petitioner.  This appeal ensued.

Petitioner argues that, as the student’s parent, she has a statutory right under Education Law § 2-d to inspect the student’s education records, including the enrollment agreement.  She contends that this right exists “regardless of the wishes of the [student]’s grandmother to shield these documents and information” from her.  Petitioner seeks an order compelling respondent to comply with her March 2021 request.

Respondent did not submit an answer.  As such, the factual allegations set forth in the petition are deemed to be true (8 NYCRR 275.11; see Appeal of J.C., 60 Ed Dept Rep, Decision No. 17,897; Appeal of Pierre, 47 id. 513, Decision No. 15,768; Appeal of Raines, 45 id. 21, Decision No. 15,246).

Nevertheless, the appeal must be dismissed for lack of jurisdiction.  Education Law § 310, in relevant part, provides that “[a]ny party ... aggrieved may appeal ... any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools” (Education Law § 310 [7]).  Courts have interpreted this broad grant of authority to encompass only “controversies within the common school system” (Matter of Bowen v Allen, 17 AD2d 12, 15 [3d Dept 1962], affd 13 NY2d 663 [1963]; see Matter of Board of Educ. of City School Dist. of City of Rome v Ambach, 118 AD2d 932, 934 [3d Dept 1986] [noting that “the statute deals throughout with the common schools”]).  The “common school system” refers to the state’s public elementary and secondary schools, over which the Commissioner has long exercised supervisory powers (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991).

Here, petitioner appeals from a determination of Stepping Stone, a nonpublic school, regarding access to student records.  Although the Commissioner has exercised jurisdiction over entities other than public schools, these determinations have been based upon a specific statutory grant of authority (see e.g. Appeal of the Bd. of Educ. of the Kiryas Joel Union Free Sch. Dist., 59 Ed Dept Rep, Decision No. 17,712 [under Education Law § 3202 (4), the Commissioner of Education is authorized to decide disputes over foster care tuition reimbursement, which may include social services or other agencies]; Appeal of B.S., 56 id., Decision No. 17,058 [under Public Health Law § 2164 (7) (b), a parent, guardian, or person in parental relationship to a child denied school entrance or attendance to a school, including a nonpublic school, for lack of required immunizations may appeal to the Commissioner of Education]).  Lacking such authority here, the appeal must be dismissed for lack of jurisdiction (Appeal of Egodigwe, 41 Ed Dept Rep 19, Decision No. 14,598; see also Appeal of Community Educ. Council Dist. 3, 59 id., Decision No. 17,774). 

THE APPEAL IS DISMISSED.

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