Appeal of YOUNG ADVOCATES FOR FAIR EDUCATION (“YAFFED”), from action of the New York City Department of Education regarding substantial equivalency.

Decision No. 18,356

(November 16, 2023)

Christopher Hazen, Esq., attorney for petitioner

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Daniel R. Perez, Esq., of counsel

ROSA., Commissioner.--Petitioner, an advocacy organization, appeals from the alleged failure of the New York City Department of Education (“respondent”) to comply with an order of the Commissioner regarding substantial equivalency.  The appeal must be dismissed.

This appeal arises from a 2015 complaint by parents, former students and former teachers against respondent asserting that 39 religious schools within its boundaries did not offer substantially equivalent instruction (see Education Law § 3204 [1]-[2]).  In a letter to the State Education Department (“SED”) dated August 15, 2018, respondent provided a summary of its investigation into the allegations.  As relevant here, respondent initially determined that several of the schools were outside the scope of its investigation as they were closed, provided post-secondary education, or no longer operated a school at the identified location.

Respondent then provided an additional update on December 19, 2019.  Respondent asserted that 28 schools were properly within the scope of its investigation and that 2 of these offered substantial equivalent instruction.  Respondent characterized the remaining 26 schools as moving toward substantial equivalency, developing, or underdeveloped.[1]

In September 2022, the Board of Regents promulgated Part 130 of the Commissioner’s regulations.  These regulations assist Local School Authorities (“LSA”) in fulfilling their responsibilities under State law to determine whether students in nonpublic schools are receiving instruction that is at least substantially equivalent to instruction in public schools.  The regulations also establish pathways by which a nonpublic school may demonstrate substantial equivalency without local review by an LSA.

By order dated January 10, 2023, I directed respondent to complete its investigation into the 25 religious schools by June 30, 2023.  Given the intervening passage of the Part 130 regulations, I also directed respondent to consider whether any of the schools met a pathway to establish substantial equivalency.

On June 30, 2023 respondent issued written findings and recommendations concerning the 25 schools.[2]  As relevant here, respondent determined that five schools satisfied the registered high school pathway, and, thus, were substantially equivalent (8 NYCRR 130.3 [a] [1]).[3]  Respondent also reiterated its determination from 2019, discussed above, that two other schools were previously found to offer substantially equivalent instruction.  This appeal ensued.  

Petitioner seeks additional information and investigation into the seven schools respondent deemed substantially equivalent.  Specifically, it requests a “final report” regarding the two schools that were the subject of the 2019 determination and “full reports” concerning the five schools that respondent determined satisfied the registered high school pathway.

Respondent asserts, among other defenses, that petitioner lacks standing and has failed to state a claim upon which relief may be granted.  Respondent further contends that the appeal is untimely and otherwise without merit.

First, I must address a procedural matter.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803).  Petitioner’s reply was submitted over two weeks late.  Accordingly, I have not considered it in reaching my determination.[4]

The appeal must be dismissed, in part, as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, respondent deemed two schools substantially equivalent in 2019.  Respondent asserts, which petitioner does not contest, that petitioner received actual notice of this determination in November 2020.  Petitioner does not identify any good cause for the delay.  As such, these claims must be dismissed as untimely (Appeal of Schlesinger, 61 Ed Dept Rep, Decision No. 18,128; Appeal of D.R., 61 id., Decision No. 18,100; Appeal of Handsman, 58 id., Decision No. 17,596).

The remainder of the appeal must be dismissed for lack of standing.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  An organization’s standing is dependent upon a finding that “some or all of the members themselves have standing” (Dental Soc. of State v. Carey, 61 NY2d 330, 333 [1984]).[5]

Petitioner states it is an advocacy organization dedicated to ensuring that students of New York’s yeshivas receive a quality education.  However, it offers no information whatsoever about its members or how any of these members were, in fact, harmed by respondent’s determinations.  As such, the appeal must be dismissed for lack of standing (see Appeal of Pally and Oak Tree Dairy Farm, Inc., 57 Ed Dept Rep, Decision No. 17,341; Appeal of James, et al., 54 id., Decision No. 16,646; Appeal of Waechter, 48 id. 261, Decision No. 15,853).[6]

Petitioner additionally argues that standing should be “liberally construed” in appeals to the Commissioner, citing People ex rel. Bd. of Educ. of City of New York v. Finley.[7]  Such an interpretation, however, cannot compensate for petitioner’s failure to identify any of its members or explain the nature of its alleged injury.  By contrast, the appellant in Finley was the “city superintendent of schools of the city of New York” who alleged direct harm arising from an act of the Board of Education of the City of New York (Finley, 211 NY at 56).  These allegations, unlike those in the present case, demonstrated the requisite “personal stake in the outcome” of the dispute (City of Los Angeles v. Lyons, 461 US 95, 101 [1983]).[8]

While the appeal must be dismissed, I note that petitioner’s concerns would be more appropriately presented to SED’s Office of Religious and Independent School Support rather than through the quasi-judicial appeal process contained in Education Law § 310.

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

THE APPEAL IS DISMISSED.

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