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Decision No. 15,175

Appeal of I.S., individually and on behalf of her daughter G.V., from action of the Board of Education of the City School District of the City of New York, the Chancellor, and Reyes Irizarry, Superintendent of Region 4, regarding provision of school related information.

Anusuya Chatterjee, Esq., attorney for petitioner

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

Decision No. 15,175

(February 16, 2005)

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

Petitioner�s daughter, G.V., is a limited English proficient student who attended kindergarten at P.S. 145 in Region 4 during the 2003-2004 school year. 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, that respondents failed to provide her with translated information regarding the district�s bilingual program, that fifty percent of the information sent from G.V.�s school is translated into Spanish and fifty percent is in English, that she has requested interpretation services at school and has had to wait for over two hours for the same, that parent association information and meetings are not translated and that she has not received translations of her daughter�s report card or standardized assessments. Petitioner also alleges that the school nurse does not speak Spanish and that her daughter has asthma and has not been able to take her medicine at school.

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 related New York State Education Department guidelines, 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 a Chancellor�s regulation pertaining to Parent Association meetings. 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.

Respondents contend that the appeal is untimely. An appeal to the Commissioner must also be commenced within 30 days from the making of a 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 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.

Moreover, petitioner has failed to submit the regulation and resolution she contends were violated as part of her petition and has failed to establish that respondent 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).

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 asserts that she speaks Spanish and that respondents have not provided all school related information in Spanish.

As part of their answer, respondents submit unrefuted affidavits from I.S.�s bilingual education teacher and the principal of P.S. 145, both of whom are fluent in Spanish.

I.S.�s teacher avers that in September 2003 she held an introductory presentation conducted in Spanish regarding her bilingual kindergarten class and that petitioner was present and received translated materials regarding the topics and subjects that would be covered in class. The teacher avers that in November 2003 petitioner met with her at the school�s "Open School Afternoon" where parents were invited in to discuss their child�s progress with their teacher. She states that she and petitioner discussed I.S.� s academic progress in Spanish and that she gave petitioner I.S.�s translated report card. The teacher attached copies of translated materials she provided to petitioner during the school year, including I.S.�s translated report card with petitioner�s signature evidencing receipt thereof.

The principal of P.S. 145 avers that eighty-one of the one hundred thirty eight staff members at the school are fluent in Spanish. She avers that there are staff members always available to translate written and oral information for parents who do not understand English upon request. The principal states that Parent Teacher Association meetings are conducted in Spanish and English. She also avers that documents are routinely sent home to parents in Spanish and English and has attached examples of such translated documents including a notice of Parent Teacher Association meeting, school calendars, and a pamphlet describing the dual language program at the school. The principal further avers that petitioner enrolled I.S. in a bilingual class and attaches a copy of petitioner�s translated Home Language Survey and Parent Survey and Program Selection forms. The principal further states that petitioner attended a parent workshop in November 2003 entitled "Aims and Objectives of Bilingual Programs" presented by a representative from Region 4 and the bilingual coordinator from P.S. 145, who is fluent in Spanish. Finally, the principal states that while the school nurse does not speak Spanish, the school�s health aide in the medical room is present throughout the day and is available for translation.

The principal further states that petitioner submitted forms for her daughter�s medication and that both the bilingual coordinator and the parent coordinator contacted petitioner several times and spoke to her in Spanish regarding her need to bring her daughter�s medication to school. Petitioner subsequently brought the medication to school in April 2003.

As noted above, in an appeal to the Commissioner, petitioner has the burden of establishing the facts entitling her to relief. After careful review of the record before me, I find petitioner has not met her burden of proving that respondents have violated Part 154 of the Commissioner�s regulations.