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Decision No. 15,821

* Subsequent History: Matter of Reyes v Mills; Supreme Court Albany County; Judgment dismissed petition to review; April 8, 2009. *

Appeal of A STUDENT WITH A DISABILITY, by her parents, from action of the Bedford Central School District regarding identification as limited English proficient.

Decision No. 15,821

(August 14, 2008)

Donald L. Doernberg, Esq., attorney for petitioners

Ingerman, Smith, LLP, attorneys for respondent, Ralph C. DeMarco, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Bedford Central School District (“respondent”) that their daughter is limited English proficient.  The appeal must be dismissed.

During the 2007-2008 school year, petitioners’ daughter attended the fifth grade in respondent’s district.  In January 2008, petitioners’ daughter was classified as a student with a disability. 

Before her entry into kindergarten in the 2002-2003 school year, petitioners’ daughter was screened by respondent as a possible limited English proficient student.  This screening occurred in response to a home language questionnaire.  As a result of the screening, which, respondent admits, did not include an interview in the child’s alleged native language of Spanish, it was decided that the Language Assessment Battery (“LAB”) was warranted.  Petitioners’ daughter did not score proficient in English on the LAB.  In response to concerns by petitioners, the district administered the LAB a second time, one month later.   Once again, petitioners’ daughter did not score proficient in English. 

Because she twice did not score English proficient, the district placed petitioners’ daughter in its English as a Second Language (“ESL”) program.  The only way to exit the ESL program is to score proficient on the annual assessment for English proficiency, which is the New York State English as a Second Language Achievement Test (“NYSESLAT”).  Although petitioners’ daughter has taken the NYSESLAT annually, she has not yet scored proficient in English and therefore remains in the ESL program.  This appeal ensued.  After the filing of the petition, petitioners requested a stay to prevent their daughter from having to take the NYSESLAT.  Petitioners’ request for interim relief was denied on May 13, 2008.

Petitioners contend that their daughter was improperly placed in the ESL program because she does not speak Spanish and an interview in Spanish at the time of her diagnostic screening would have clarified that.  Petitioners seek to have their daughter discharged from the ESL program without having to take the NYSESLAT again.

Respondent argues that the appeal is untimely and that the district properly and lawfully screened petitioners’ daughter before the start of the 2002-2003 school year.  Further, respondent argues that because petitioners’ daughter has not yet passed the NYSESLAT, it cannot discharge her from the ESL program.

Respondent argues that petitioners improperly submitted affidavits with their verified reply as opposed to their petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

With respect to timeliness, 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 O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  Respondent placed petitioners’ daughter in its ESL program more than five years prior to the commencement of this appeal.  Petitioners argue that one reason for the delay was their ignorance of the appeal process.  However, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of E.M., 44 Ed Dept Rep 156, Decision No. 15,130; Appeal of R.A. and D.A., 43 id. 281, Decision No. 14,995).  Petitioners offer no unusual circumstance that would allow me to excuse their long delay.

Petitioners also request that their claim be considered timely because it constitutes a continuing wrong. The continuing wrong doctrine applies when the ongoing action is itself an unlawful action, such as unlawful appointments to a district’s shared decision-making team (Appeal of Sadue-Sokolow, 39 Ed Dept Rep 6, Decision No. 14,155) or certain ongoing expenditures under an austerity budget that did not comply with the law (Appeal of Aarseth, 32 Ed Dept Rep 506, Decision No. 12,901).  The doctrine does not apply where the specific action being challenged is a single action, inaction or decision and the resulting effects are not intrinsically unlawful (Appeal of Rizzo, 44 Ed Dept Rep 173, Decision No. 15,138; Appeals of American Quality Beverages, LLC, et al., 42 id. 144, Decision No. 14,804).

Respondent’s screening of petitioners’ daughter as potentially being limited English proficient before she entered kindergarten in the 2002-2003 school year was a single act and her placement in an ESL class was not intrinsically unlawful.  Therefore, the continuing wrong doctrine does not apply here and the appeal must be dismissed as untimely.

Even if it were not dismissed on procedural grounds, the appeal would be dismissed on the merits.  Petitioners place significant emphasis on the fact that their daughter was not interviewed in Spanish when she was screened.  However, the Commissioner’s regulations in effect at the time of the screening did not require that an interview be conducted in the student’s native language[1].  In respondent’s answer, it submitted evidence and also affidavits showing that it met the minimum requirements of §117.3 of the Commissioner’s regulations then in effect.  Respondent also provided another LAB to petitioners’ daughter after petitioners complained about her identification as limited English proficient.  Additionally, respondent submitted an affidavit from an elementary consulting teacher for its ESL program, who stated that, although she did not administer the LAB to petitioners’ daughter in 2002, she reviewed the results in 2002 and agreed that administering a second LAB would be helpful.  Based on the LAB results, the ESL teacher also agreed with respondent’s determination, to place petitioners’ daughter in the ESL program.  I therefore cannot conclude that respondent’s actions were arbitrary, capricious or unreasonable.

While I am constrained to dismiss this appeal because it is untimely, I note that petitioners’ daughter has now been limited English proficient for several years.  A recent classification by the Committee on Special Education (“CSE”) that she is a student with a disability should assist in determining why she is having difficulty passing the NYSESLAT.  

In view of this disposition, I need not discuss the parties’ other claims.




[1]The Commissioner’s regulations have since been amended to include a required informal interview in the student’s native language as well as in English (8 NYCRR §117.3[c][5]), effective October 4, 2007.