Decision No. 13,477

(August 30, 1995)

Hon. Paul A. Crotty, Corporation Counsel, attorney for respondent, Mario Frangiose and Colleen Martin, Esqs., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals respondent's decision to deny his son admission to the specialized high school of his choice. The appeal must be dismissed.

On December 3, 1995, petitioner's son, Mosah, took the Specialized Science High Schools Admission Test. Petitioner alleges that during the exam, Mosah was distracted by students' conversations and ringing wrist watch alarms, which led him to change his seat. On February 12, 1995, petitioner was notified that his son had been accepted to two specialized high schools, Bronx High School of Science and Brooklyn Technical High School, but did not score high enough for admission to his first choice, Stuyvesant High School. By letter dated February 13, 1995, petitioner wrote to respondent's Deputy Director of the Division of High Schools ("deputy director") requesting a review and rescoring of his son's exam.

On March 10, 1995, respondent's deputy director responded, noting that there had been no other reports of disruption in the gym where Mosah took the test. On March 17, 1995, petitioner also sent a letter to the Chancellor requesting his intervention. On March 20, 1995, respondent's deputy director informed petitioner that arrangements had been made for him to review Mosah's test on April 28, 1995. On March 27, 1995, Assistant Administrative Superintendent of the Office of Access and Compliance ("assistant superintendent") responded to petitioner's March 17th letter to the Chancellor.

On March 30, 1995, the assistant principal of Stuyvesant High School informed respondent's deputy director that he had spoken with the proctor responsible for administering the exam to Mosah and that the proctor was unaware of excessive noise in the gym. On April 3, 1995, the testing service employed by respondent informed respondent's deputy director that it had inspected and hand scored Mosah's exam and that the original test results were accurate.

By letter dated April 3, 1995, respondent's deputy director informed petitioner that respondent's investigation revealed that the proctor in charge of the gymnasium noted no disturbance in the gym and that Mosah's test had been hand scored with the same results. The testing service's review noted that no questions had been left blank on Mosah's answer sheet and that there were several erasures replaced by new answers on the document, all of which were scored properly.

On April 4, 1995, petitioner wrote to respondent's assistant superintendent and enclosed a letter from a student who stated that he had seen Mosah move his seat during the exam. On May 1, 1995, petitioner wrote to respondent's deputy director that another student who took the test confirmed Mosah's claim that a disturbance had taken place at the testing site. On May 2, 1995, respondent's deputy director contacted the principal of Stuyvesant High School to request a follow-up investigation. On May 5, 1995, the assistant principal of Stuyvesant High School informed respondent's deputy director that he had again questioned the proctors assigned to the gym, and that no one recalled a disturbance. He added that if one had occurred, a student would have been moved quickly to another seat with minimal disruption.

On May 5, 1995, petitioner again wrote to the Chancellor, alleging that respondent's assistant superintendent had mishandled the investigation. On May 11, 1995, the Supervising Superintendent of the Division of High Schools ("supervising superintendent") informed petitioner that, based on its investigation, it could not conclude that Mosah's testing conditions were compromised. On May 18, 1995, petitioner wrote to the supervising superintendent stating that he felt that but for the disturbance, Mosah would have scored high enough for admission to Stuyvesant High School.

Petitioner and respondent also corresponded on May 26, June 5 and June 27, 1995 regarding petitioner's challenge to individual questions on the exam. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on July 28, 1995.

Petitioner alleges that the disturbance in the gymnasium caused his son's lower test score and that but for the disturbance, Mosah would have scored high enough for admission to Stuyvesant High. Petitioner also claims that respondent's investigation into this matter was flawed. He requests various forms of relief, including his son's admission to Stuyvesant High School, the use of supplemental measurements to evaluate Mosah's qualifications, admission to the summer school program at Stuyvesant, a limited re-test of the verbal section, a re-test of the last nine questions of the math section and an impartial investigation of the alleged testing irregularities.

Respondent contends that the appeal is untimely, that Mosah cannot be admitted to Stuyvesant High School because he failed to achieve a cut-off score, and that Mosah is not eligible for summer school because he fails to meet the admission criteria. Respondent further contends that its actions in this matter were not arbitrary, capricious or unreasonable.

Before reaching the merits, I will address the procedural issues raised by respondent. An appeal to the Commissioner must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). The time to commence an appeal runs from the date of the decision under review (Appeal of Keen, 32 Ed Dept Rep 299; Appeal of Magee, 30 id. 479). Requests for reconsideration of the challenged decision do not extend the 30 day time period (Appeal of Regan, 34 Ed Dept Rep 72; Appeal of Moore, 33 id. 703; Appeal of Hall and Cooper, 32 id. 377; Appeal of Zeff, 29 id. 5).

Respondent correctly asserts that this appeal is untimely. The record reflects that respondent's determination was made on May 11, 1995. Petitioner commenced this appeal on June 28, 1995, more than 30 days after respondent's decision. The fact that petitioner wrote to former Commissioner Sobol on June 13, 1995 or that respondent continued to investigate the matter does not, as a matter of law, toll the statute of limitations. Therefore, I must dismiss this appeal for untimeliness.

I also note that the relief petitioner requests concerning summer school is now moot, since the time for admission to the summer program has passed. The Commissioner of Education will only decide matters in actual controversy and will not render a decision upon facts which no longer exist or which subsequent events have laid to rest (Appeal of Lanoir, 34 Ed Dept Rep 562; Application of a Child With A Handicapping Condition, 32 id. 9; Appeal of Impellizzeri, et al., 32 id. 26).

The appeal must also be dismissed on the merits. Education Law '2590-g(12)(b) provides:

Petitioner does not dispute that his son took the test for admission to respondent's specialized high schools and failed to achieve the admissions score for Stuyvesant High School by two points. Rather, he argues that the alleged disruption during the test somehow entitles Mosah to admission to Stuyvesant. The facts suggest otherwise.

First, petitioner has not proven conclusively that any disruption occurred. Rather, the record demonstrates conflicting evidence on this point: proctors who assert no disruption occurred, and Mosah and two other students claiming that it did. In an appeal pursuant to Education Law '310, petitioner bears the burden of proving that he is entitled to the relief requested (8 NYCRR 275.10; Appeal of Vito, 34 Ed Dept Rep 237; Appeal of Gloria C., 32 id. 664; Appeal of Negrin, 29 id. 484). In light of the conflicting evidence, petitioner has not carried that burden.

Even if a disruption did take place during the test, there is no evidence to suggest that it was so substantial as to be the sole cause of Mosah's failure to earn a higher score. Certainly, had the disruption been very noticeable, one would have expected other students to challenge their scores on that basis. Moreover, a major disturbance would undoubtedly have caught the attention of at least one proctor. Finally, had there been a significant disturbance, one would have expected petitioner to complain immediately to authorities, rather than raising the issue only once the test results were known. All of these factors, taken together, tend to undermine petitioner's claim that the testing conditions were materially compromised.

Moreover, even if Mosah suffered some disruption, it does not necessarily follow that without it, Mosah would have scored high enough for admission to Stuyvesant. Rather, the record reflects that 41 other students who did not allege disruption missed the cut-off for Stuyvesant High School by one or two points. Any number of factors wholly unrelated to the administration of the examination may have prevented Mosah from achieving a sufficient score to gain admission to Stuyvesant.

As respondent indicated in its May 25, 1995 letter to petitioner, the timeframe of the exam has been established to absorb interruptions that may occur (e.g., questions for the proctor, visits to the lavatory, signing the exam list, etc.). The record indicates that hand scoring of Mosah's test showed that all the questions were answered and some were erased, indicating that Mosah had sufficient time to complete the test.

On the record before me, it is impossible to conclude that Mosah missed the cut-off score for Stuyvesant High School because his seat was moved during the examination. My review of the record indicates that respondent's determination in this matter was not arbitrary, capricious or unreasonable. Moreover, the record indicates that respondent thoroughly investigated petitioner's complaints -- twice over -- to the best of its ability, given petitioner's delay in making a complaint (10 weeks after the incident). Thus, there is simply no basis for me to substitute my judgment for that of respondent (Appeal of Locorotondo, 34 Ed Dept Rep 305; Appeal of Stujenske, 34 id. 123; Appeal of Amoia, 28 id. 150).

While I am sympathetic to petitioner's desire to have his son attend the specialized high school of his choice, I cannot grant the relief he seeks. I note that Mosah was admitted to both Brooklyn Technical High School and Bronx High School of Science, both excellent, highly competitive schools. Furthermore, as respondent has repeatedly told petitioner, Mosah is eligible to take the specialized high school admissions test next year for admission as a tenth grader if he still wishes to attend Stuyvesant High School.

I have reviewed the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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