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Decision No. 16,460

Appeal of K.D. from action of the New York City Department of Education regarding the issuance of a high school diploma.

Decision No. 16,460

(March 29, 2013)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Serena Longley, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges action of the New York City Department of Education (“respondent”)issuing her a local high school diploma. The appeal must be dismissed.

In 2003, petitioner received a local high school diploma (“diploma”) from Urban Peace Academy, a New York City public high school. Beginning in November 2010,petitioner began contacting respondent’s employees to have her diploma revoked due to alleged errors in her transcript, including, but not limited to, course credit for courses petitioner asserts she did not pass and course credits from different high schools in an overlapping timeframe. Petitioner maintained that these alleged errors made the issuance of her diploma inappropriate.

According to one of respondent’s assistant corporation counsels, petitioner initially stated that she wanted her diploma revoked because of the alleged inaccuracies in her transcript. However, during another conversation, petitioner stated that she wanted her diploma revoked so that she would be eligible for admission to a community college program that would enable her to simultaneously earn both a high school equivalency diploma and an associate’s degree. Petitioner’s diploma made her ineligible for this program.

In response to petitioner’s complaints, respondent’s office of special investigations (“OSI”) conducted an investigation, which included collecting and reviewing petitioner’s permanent record, analyzing her transcript, and interviewing petitioner and respondent’s director of academic readiness and post-secondary planning. According to respondent, petitioner’s permanent record shows that petitioner attended the following three New York City(“NYC”) high schools and two Florida (“Fla.”) high schools, which are listed in the order that petitioner attended them: High School for Leadership and Public Service (NYC); School of Graphic Communication Arts (NYC); Ribault High School (Fla.); William W. Raines High School (Fla); and Urban Peace Academy (NYC) which closed in June 2010.

Based on its investigation, OSI determined that petitioner satisfied local diploma requirements in all subjects, with the possible exception of physical education. Petitioner’s permanent record shows that she submitted a physical education waiver request seeking a religious exemption from this requirement. However, due to the fact that more than eight years have passed since petitioner received her diploma and one of the high schools she attended has closed, respondent was unable to determine whether petitioner received alternative instruction in physical education to meet the physical education diploma requirement. According to respondent, it is possible that petitioner did satisfy the physical education requirement through adaptive physical education but this is not reflected on petitioner’s transcript. However, according to respondent, due to the passage of time and the fact that one of the high schools petitioner attended has closed, it is impossible for respondent to obtain complete information on this issue. Based on the foregoing, respondent made a determination that petitioner had satisfied the diploma requirements and that the issuance of the diploma was appropriate. This appeal ensued. Petitioner’s request for interim relief was denied on May 2, 2011.

Petitioner requests that I direct respondent to revoke her diploma. Respondent alleges that petitioner lacks standing to bring the appeal, that the appeal is untimely and is also barred by the doctrine of laches. Respondent also alleges that the petition is not verified in compliance with §275.5 of the Commissioner’s regulations and that petitioner fails to state a claim upon which relief can be granted.

Initially, I must address several procedural matters. Respondent asserts that petitioner lacks standing to maintain this appeal. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights(Appeal of Waechter, 48 Ed Dept Rep 261, Decision No.15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal(Appeal of Waechter, 48 Ed Dept Rep 261, Decision No.15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Petitioner challenges the alleged erroneous issuance of her local diploma which terminated her entitlement to attend school pursuant to Education Law§3202. I find that petitioner, thus, has standing to maintain the appeal.

Respondent also alleges that the petition lacks the verification required by Commissioner’s regulations, warranting dismissal. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46id. 260, Decision 15,501). I note that the petition filed with my Office of Counsel contains the required verification. The appeal, therefore, will not be dismissed on that ground.

However, the appeal is untimely. 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). Petitioner received the diploma at issue in 2003, almost eight years prior to the commencement of this appeal. Although petitioner alleges that she is challenging respondent’s denial of her request to revoke her diploma, the gravamen of petitioner’s claim is the alleged erroneous issuance of her diploma in 2003. Petitioner’s request that respondent revoke the diploma merely constitutes a request that respondent reconsider its issuance of the diploma to her. 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, 48id. 254, Decision No. 15,851). Accordingly, this appeal, commenced almost eight years after the issuance of the challenged diploma, without any explanation for the delay, must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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). Respondent provides an extensive analysis of the credits petitioner earned warranting issuance of her diploma. Although respondentadmits certain errors may have been made on petitioner’stranscript regarding the school codes or appropriatesemester columns, the number of credits and examinations required are substantiated on this record. Petitioner has not met her burden of establishing a clear right to therelief sought, nor has she established that respondent’s issuance of a diploma to her was arbitrary, capricious orunreasonable.

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