* Subsequent History: Matter of Weber v New York State Educ. Dept. et al.; Supreme Court, Albany County (Silverman, J.); Decision & Order granted the petition to the extent that the determination is annulled and matter returned for a determination on the merits to be issued within four months.  New Commissioner decision issued; October 6, 2022. *

Appeal of B.W. from action of Richard A. Carranza[1] as Chancellor of the New York City Department of Education and Yeshiva Mesivta Arugath Habosem regarding substantial equivalence.

Decision No. 17,983

(April 21, 2021)

ROSA., Commissioner.--Petitioner challenges an alleged failure of Richard A. Carranza, as Chancellor of the New York City Department of Education (“respondent NYCDOE”[2]), and Yeshiva Mesivta Arugath Habosem (“YMAH”) to provide substantially equivalent instruction to her son, A.B.  The appeal must be dismissed.

Petitioner resides at an address within respondent NYCDOE’s jurisdiction.  At the time of the petition, A.B. was a third-grade student at YMAH, a nonpublic elementary and middle school also located within the geographic region served by respondent NYCDOE.  This appeal ensued.

Petitioner alleges that YMAH has not provided, and is not providing, A.B. with instruction substantially equivalent to the instruction given to students served by respondent NYCDOE.  Petitioner specifically asserts that the student has not received instruction in any secular subjects; that YMAH offers students in grades four through seven less than 1.5 hours per day of secular education; that YMAH’s teachers do not possess appropriate education and/or qualifications to teach secular subjects; and that two of her older children, who are not the subjects of this appeal, also received minimal secular instruction while attending YMAH.  For relief, petitioner seeks:  (1) an order directing respondent NYCDOE to, in turn, direct YMAH “to make all necessary and appropriate measures to ensure that it is providing [A.B.] with substantially equivalent secular instruction”; and (2) an order “directing YAMH to ... provide [A.B.] with substantially equivalent instruction.”[3]

Respondent NYCDOE contends that the appeal must be dismissed, among other reasons, as premature.  Specifically, respondent NYCDOE asserts that, upon receipt of the petition, it commenced an investigation into whether YMAH offers substantially equivalent instruction.  Respondent NYCDOE further asserts that such investigation is ongoing and that it had not received any complaints about YMAH prior to receipt of the instant petition.

YMAH denies petitioner’s material allegations and alleges that the appeal must be dismissed, among other reasons, for lack of jurisdiction. 

First, I must address a preliminary matter.  By letter dated November 25, 2019, an attorney for non-party Young Advocates for Fair Education (“YAFFED”) sought permission to submit an amicus curiae brief as well as a declaration by the attorney and exhibits thereto.  YMAH objects to such submissions.  Section 275.17 of the Commissioner’s regulations permits interested persons to submit memoranda amicus curiae upon written application to, and approval by, the Commissioner.  In considering whether to grant the application, the Commissioner has historically applied the standard adopted by the Court of Appeals, which requires satisfaction of at least one of the following criteria:  (1) that the parties are not capable of a full and adequate presentation and that the interested party could remedy this deficiency; (2) that the interested party could identify law or arguments that might otherwise escape consideration; or (3) that the proposed amicus curiae brief would otherwise be of assistance (see 22 NYCRR 500.23 [a] [4] [i]).

In this appeal, all parties are represented by counsel and there is no basis upon which to conclude that the parties are not capable of a full and adequate presentation requiring remedy by YAFFED’s amicus submission.  Moreover, given the disposition of this appeal, it is unnecessary to address the merits of petitioner’s claims.  Accordingly, I decline to accept the proposed amicus brief.

The appeal must be dismissed against respondent NYCDOE as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Respondent NYCDOE indicates that it is currently investigating petitioner’s allegations concerning the sufficiency of instruction at YMAH.  The record further reflects that respondent NYCDOE had not, prior to the instant appeal, received any information suggesting that YMAH did not offer substantially equivalent instruction.  Therefore, petitioner’s request that respondent NYCDOE order YMAH to offer substantially equivalent instruction is premature.  Should respondent NYCDOE make a final determination that YMAH offers substantially equivalent instruction, petitioner may appeal such determination under Education Law § 310.[4]

The appeal must be dismissed against YMAH for lack of jurisdiction.  Education Law § 310 provides, in relevant part, that “[a]ny party ... aggrieved may appeal ... any ... 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” (Education Law § 310 [7]).  Courts have interpreted this broad grant of authority to encompass only “controversies within the common school system” (Matter of Bowen v Allen, 17 AD2d 12, 15 [3d Dept 1962], affd without opn 13 NY2d 663 [1963]; see Matter of Bd. of Ed. City School Dist. of Rome v Ambach, 118 AD2d 932, 934 [3d Dept 1986] [noting that “the statute deals throughout with the common schools”]).  The “common school system” refers to the State’s public elementary and secondary schools, over which the Commissioner has long exercised supervisory powers (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991).

Here, petitioner seeks a determination that YMAH, a nonpublic school, is not providing substantially equivalent instruction as required by Education Law § 3204.  Although the Commissioner has exercised jurisdiction over entities other than public schools, such jurisdiction requires a specific, statutory grant of authority, which is absent here (see e.g. Appeal of the Board of Education of the Kiryas Joel Union Free School District, 59 Ed Dept Rep, Decision No. 17,712 [under Education Law § 3202 (4), the Commissioner of Education is authorized to decide disputes over foster care tuition reimbursement, which may include social services or other agencies]; Appeal of E.C., 58 id., Decision No. 17,638 [under Public Health Law § 2164 (7) (b), a parent, guardian, or person in parental relationship to a child denied school entrance or attendance to a school, including a nonpublic school, for lack of required immunizations may appeal to the Commissioner of Education]).  While the student is unquestionably entitled to instruction at least substantially equivalent to the instruction given to students served by respondent NYCDOE, the responsibility for determining whether YMAH’s instruction meets that standard rests with respondent NYCDOE in the first instance.  Accordingly, I find that Education Law § 310 does not confer authority on the Commissioner to review this matter, and the appeal must be dismissed with respect to YMAH for lack of jurisdiction (Appeal of Egodigwe, 41 Ed Dept Rep 19, Decision No. 14,598; see also Appeal of Community Education Council District 3, 59 id., Decision No. 17,774; Appeal of Advanced Institutional Support Services, LLC, 46 id. 508, Decision No. 15,577).

While the appeal must be dismissed on procedural grounds, petitioner’s allegations regarding the nature and quality of instruction at YMAH are highly concerning.  I encourage respondent NYCDOE to complete its investigation as expeditiously as possible.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE