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Decision No. 15,502

Appeal of R.J.M., on behalf of her son M.M., from action of the Board of Education of the City School District of the City of North Tonawanda regarding attendance records.

Decision No. 15,502

(December 15, 2006)

Norton, Radin, Hoover & Freedman, attorneys for respondent, Andrew Freedman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of a hearing officer that attendance records maintained by the Board of Education of the City School District of the City of North Tonawanda (“respondent”) are not inaccurate, misleading or otherwise an invasion of M.M.’s right of privacy. The appeal must be dismissed.

M.M., a ninth grade student at North Tonawanda Senior High School during the 2005-2006 school year, was absent 34 times from October 13 through December 2, 2005.  Respondent recorded these absences as “unexcused.”  On November 21, 2005, petitioner provided respondent with a physician’s note stating a medical reason for her son’s absences.  On December 5, 2005, home instruction was authorized based on the medical documentation provided by petitioner.  On February 13, 2006, petitioner questioned why the absences from October 13 through December 2, 2005 were marked “unexcused” and requested that M.M.’s attendance record be amended to indicate his absences as “excused.”  By letter dated February 14, 2006, petitioner was notified that her son’s official attendance record was consistent with respondent’s attendance policy and would not be amended.

On February 17, 2006, petitioner requested a hearing under the Family Education Rights and Privacy Act (“FERPA”) to amend her son’s attendance record.  Petitioner was accompanied by an attorney at the FERPA hearing on March 21, 2006.  On April 21, 2006, the hearing officer issued a written decision denying petitioner’s request on the grounds that she did not assert that her son’s attendance record was inaccurate or misleading due to a lesser or higher number of days than actually recorded, or that he was absent on different days than were actually recorded, or that he was not absent at all. Rather, petitioner complained that the 34 absences were recorded as unexcused rather than excused.  The hearing officer decided that respondent made a substantive decision to record the 34 absences as unexcused rather than excused consistent with its attendance policy based upon petitioner’s failure to provide an excuse for each absence in a category specifically included in the policy and failed to request home instruction until December 5, 2005.

The hearing decision on April 21, 2006 recommended that respondent inform petitioner of her right to place a statement in her son’s record commenting on the contested information or stating that she disagrees with the decision, or both.  This appeal ensued.

Petitioner seeks an order annulling the FERPA hearing decision and directing respondent to expunge from M.M.’s attendance record any reference to the unexcused absences for the period October 13 through December 5, 2005.

Respondent contends that the Commissioner lacks jurisdiction to consider FERPA claims or annul FERPA decisions.  Respondent also contends that the appeal must be dismissed as untimely because any claims arising outside the FERPA decision were brought more than 30 days from December 2, 2005, the date of the last unexcused absence, as well as more then 30 days from the notice to petitioner on February 14, 2006 that the record would not be amended.  Respondent also contends that petitioner failed to demonstrate a clear legal right to change M.M.’s attendance record.  The Commissioner lacks jurisdiction to consider FERPA claims.   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; Application of T.D., 41 Ed Dept Rep 157, Decision No. 14,646; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of Tucker, 39 id. 824, Decision No. 14,393). Petitioner requested a FERPA hearing on February 17, 2006, and appeals the April 21, 2006 decision that was issued pursuant to that federal law.  Accordingly, petitioner’s appeal must be dismissed on jurisdictional grounds.

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