Appeal of Y.R., on behalf of her daughter K.R., from action of the New York City Department of Education regarding class placement.

Decision No. 16,270

(July 29. 2011)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges a decision of the New York City Department of Education (“respondent”) to retain her daughter (“K.R.”) in fifth grade for the 2010-2011 school year.  The appeal must be dismissed.

K.R. attended fifth grade at P.S. 17 in Queens during the 2009-2010 school year.  Regulations of the Chancellor (“Chancellor’s regulations”) governing student promotion requires that students in grade five attain a score of at least proficiency level 2 on the State English Language Arts (“ELA”) and Mathematics assessments in order to be promoted to grade six.  The regulations also provide that students who do not score at least a proficiency level 2 on the State assessments may be considered eligible for promotion under certain circumstances pursuant to an appeal and review process that would occur in June and/or August.

K.R. scored at proficiency Level 1 on the State ELA and Mathematics assessments administered in the spring of 2010 and was not promoted to the sixth grade that June.  She attended summer school and took the citywide ELA and Mathematics assessments in an effort to meet the eligibility requirements for promotion.  Chancellor’s regulation A-501 (VI)(O)(2) provides that students who take the citywide assessments in August and achieve a proficiency level 2 on each assessment taken may be promoted to grade six.  K.R. achieved proficiency level 2 on the citywide ELA assessment, but achieved only proficiency level 1 on the citywide Mathematics assessment. 

Chancellor’s regulation A-501 (VI)(O)(3) requires that, for each student who failed to attain a level 2 on one or both of the citywide assessments, the principal shall review the student’s standardized test scores and summer school work and make a recommendation regarding promotion to the community superintendent.  On August 19, 2010, the principal and community superintendent met to discuss the principal’s recommendation to retain K.R. in grade five for the 2010-2011 school year.  The community superintendent reviewed K.R.’s portfolio, as well as the principal’s recommendation, and determined to retain the student in grade five because she was not prepared to move to the next grade level.  By letter dated August 26, 2010, petitioner was informed of that determination.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 14, 2010.

Petitioner asserts that respondent failed to use multiple criteria in determining to retain K.R., in violation of Chancellor’s regulation A-501, that supplementary interventions and supports were not provided to assist K.R. in meeting promotion standards and that the school failed to notify petitioner that K.R. was at risk of being held over.

Respondent contends that the appeal is untimely and that petitioner failed to properly serve it with the petition.  Respondent also maintains that the petitioner fails to state a cause of action upon which relief may be granted.  Respondent contends that the decision to retain K.R. in fifth grade was proper in all respects.

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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

In this case, while the record indicates that respondent mailed written notice of its determination to petitioner on August 26, 2010, there is nothing in the record as to when petitioner actually received the notice. Therefore, affording the usual five days for mailing, excluding Sundays and holidays, the date of receipt would be September 1, 2010.  Petitioner, therefore, had until October 1, 2010 to commence the appeal.  The affidavit of service filed with the petition reflects that the petition was personally served on October 1, 2010, apparently upon the secretary of the community superintendent of Community School District 30, within the required time period.  Thus, the appeal was timely commenced.

The appeal must be dismissed for improper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Petitioner’s affidavit of service indicates that the petition was served on respondent by leaving the petition with a secretary in the Community Superintendent School District 30’s office.  Respondent, however, denies that service was properly made and claims that the only authorized agent for service upon respondent is the Office of Corporation Counsel.  Respondent asserts that it first learned of the appeal through communication with my Office of Counsel.  Petitioner did not submit a reply to contradict respondent’s assertion of improper service.

When there is no proof that an individual is authorized to accept service on behalf of respondent, service is improper and the appeal must be dismissed (Appeal of Willis, 50 Ed Dept Rep, Decision No. 16,211; Appeal of Terry, 50 id., Decision No. 16,117; Appeal of Villanueva, 49 id. 54, Decision No. 15,956).  Because petitioner failed to serve a copy of the petition on respondent in accordance with §275.8(a) of the Commissioner’s regulations, the appeal must be dismissed. 

The appeal also must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Petitioner’s request for interim relief was denied and the 2010-2011 school year has concluded. 

The appeal also must be dismissed on the merits.  Education Law §1709(3), which is made applicable to respondent by Education Law §2554(1), authorizes a board of education “to prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.”  Consistent with that authority, boards have the power to place students in particular grades or classes (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680).  In New York City, the powers of the board of education in this regard are exercised by the Chancellor (Education Law §§2554[1] and 2590-h[17]), and Chancellor’s Regulations A-501(VI)(P),(S) and (T) delegate that authority to the community superintendent.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). 

Petitioner has not established respondent’s decision to retain her daughter in fifth grade was arbitrary, capricious or contrary to law.  Rather, respondent’s determination is rationally based upon its standard for promotion, as set forth in Chancellor’s Regulation A-501 (VI) which ensures that students advance in grade level only when they demonstrate acquisition of the knowledge and skills to succeed in the next grade.  In the instant matter, after reviewing K.R.’s work and assessment performance, both the principal and the community superintendent determined that she had not met the criteria necessary for promotion.  I find no basis on which to conclude that determination is arbitrary or capricious and decline to substitute my judgment for that of respondent. 

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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