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Decision No. 16,272

Appeal of M.E., on behalf of her daughter T.E., from action of the New York City Department of Education regarding class placement.

Decision No. 16,272

(July 29, 2011)

Legal Services NYC-Bronx, attorneys for petitioner, Nelson Mar, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Marilyn Richter and Gloria Yi, Esqs., of counsel

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

T.E. attended eighth grade at MS 203 in District 7 during the 2009-2010 school year.  Respondent’s regulation governing student promotion requires that students in grade eight attain a score of at least proficiency level 2 on the State English Language Arts and Mathematics assessments and achieve a passing grade in the core courses in order to be promoted to grade nine.  The regulation also provides 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.

T.E. scored at proficiency Level 1 on the State Mathematics assessment administered in May 2010 and was not promoted to the ninth grade that June.  She attended summer school for math in an effort to meet the eligibility requirements for promotion.  T.E. passed the summer school math course, but did not score a Level 2 or higher on the Citywide Math assessment.  Pursuant to the August appeal and review process under respondent’s regulation, T.E.’s summer school teacher and principal recommended to the community superintendent that she be promoted.  The community superintendent determined that T.E. had not met the academic requirements for promotion.  This appeal ensued.  Petitioner’s request for interim relief was denied on December 6, 2010.

Petitioner contends, among other things, that respondent’s determination was arbitrary and capricious.  Petitioner asks that respondent’s actions be investigated and seeks an order promoting T.E. to the ninth grade.

Respondent contends, among other things, that the appeal is untimely.

Petitioner’s request that I order an investigation must be denied.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of G.I., 50 Ed Dept Rep, Decision No. 16,121; Application of V.M., 46 id. 531, Decision No. 15,584; Appeal of Koehler, 46 id. 425, Decision No. 15,553).

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). 

The parties disagree as to the date respondent determined to retain T.E.  Respondent contends that the determination was made on or about September 1, 2010. Petitioner argues that that the determination was made on October 15, 2010. 

Based on my review of the record, it appears that respondent’s community superintendent made a determination to retain T.E. on or about September 1, 2010.  Petitioner attempted to appeal that determination; however there is nothing in the record indicating that respondent had a policy which permitted an internal appeal from the community superintendent’s determination.  In fact, respondent’s regulation refers to the community superintendent’s decision as the “final determination.”  Moreover, the parties met on October 8, 2010 to discuss the matter and petitioner asked the community superintendent to “reconsider” her decision.  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  However, respondent issued an enrollment disposition letter dated September 24, 2010 indicating that T.E. had been promoted.  Respondent states that this document was made in error and that T.E.’s father was immediately informed of the error.  Petitioner states that she was informed on or about September 27, 2010 that T.E. was not promoted as indicated in the enrollment disposition letter.  Given respondent’s error in issuing the enrollment disposition letter and the confusion it may have caused, I find that for purposes of determining timeliness of the appeal, the date in which petitioner was informed of the final determination is September 27, 2010.  Accordingly, the appeal should have been commenced on or before October 27, 2010.  However, this appeal was not commenced until November 23, 2010. 

The petition acknowledges that the commencement of this appeal was not timely.  The excuse provided is that petitioner’s counsel’s wife took ill and passed away unexpectedly on October 26, 2010.  While I am certainly sympathetic to petitioner’s counsel’s situation, it appears from the record that petitioner’s counsel is employed by a not-for-profit corporation which employs 26 staff attorneys who are supervised by six managing attorneys.  The education unit of the organization is comprised of three attorneys, including petitioner’s counsel.  On October 25, 2010, petitioner’s counsel informed his supervisor that he needed an indefinite leave of absence and his supervisor re-assigned his caseload.  It is not clear from the explanation provided as to why this appeal was not afforded priority considering the 30 day time frame in which an appeal must be commenced.  Given the extent of the delay in commencing this appeal and the lack of a satisfactory explanation of why other attorneys in the law office could not have handled this appeal in a more timely manner, I find the explanation provided inadequate (seeApplication of the Board of Education of the Wappingers Central School District, 40 Ed Dept Rep 400, Decision No. 14,510; Application to Reopen the Appeal of R.S., 38 id. 419, Decision No. 14,065).  Accordingly, the appeal must be dismissed as untimely.