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Decision No. 17,538

Appeal of DIANA MARIE VAN VLEET, from action of Drew Bogner, as President of Molloy College; Marcia R. Gardner, as Dean of the School of Nursing; Teresa Aprigliano, as Associate Dean, R.N. Dual Degree Program; Joann Manning-Baker, as Instructor, R.N. Dual Degree Program; Marion Flomenhaft, as Associate Dean, Academic Services; the Board of Trustees of Molloy College; and Molloy College regarding a grade determination.

Decision No. 17,538

(November 20, 2018)

Schaefer Law Group, P.C., attorneys for petitioner, Wayne J. Schaefer, Esq., of counsel

Biedermann Hoenig Semprevivo, attorneys for respondents, Orla J. McCabe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of Molloy College, an institution of post-secondary education, its board of trustees, and several of its officers and employees concerning their role in issuing her a failing grade in a course.  The appeal must be dismissed.

According to the record, at the time of the events described in this appeal, petitioner was enrolled as a student at Molloy College.  Petitioner asserts that she was improperly given a failing grade in one of her courses.  Petitioner presents claims against Molloy College and several of its officers and employees.

The appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action:

7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.

This grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education.  Although the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone, and ... are circumscribed and modified by the contextual words which precede and follow them” (Application of Bowen, 17 AD2d 12, aff’d sub nomBowen v. Allen, 13 NY2d 663).  Accordingly, courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law” (Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932; see Application of Bowen, 17 AD2d 12, aff’d sub nom. 13 NY2d 663).  Therefore, I lack jurisdiction in an appeal under Education Law §310 to review decisions of post-secondary education institutions (see Verber v. Sobol, 169 AD2d 1012 [holding that “there is no statutory basis” for Commissioner to review student’s dismissal from midwifery program at the College of Health Related Professions at the Health Science Center of the State University of New York at Brooklyn]; Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991; see also Matter of Patti Ann H., 22 id. 632, Decision No. 11,100).

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