Appeal of TAMARA RITS, individually and on behalf of her children, TATYANA and ALEKSANDR, from action of the Board of Education of the City School District of the City of New York, the Chancellor and Charles Majors, Superintendent of Community School District 73 regarding translation of school related information.

Decision No. 14,989

(November 26, 2003)

 

Advocates for Children of New York, Inc., attorneys for petitioner, Sonal Y. Patel, Esq., of counsel

 

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

 

MILLS, Commissioner.--Petitioner challenges the alleged failure of the Board of Education of the City School District of the City of New York, the Chancellor and Superintendent Majors (“respondents”) to provide her with school related information in a language she understands. The appeal must be dismissed.

Petitioner’s daughter, Tatyana, attended twelfth grade at James Madison High School during the 2001-2002 school year and was identified as limited English proficient (“LEP”) until she graduated in June 2002.

Petitioner’s son, Aleksandr, attended tenth grade at respondents’ James Madison High School during the 2001-2002 school year and eleventh grade during the 2002-2003 school year. Also classified as LEP, he was enrolled in bilingual classes in tenth grade and in an English as a Second Language (“ESL”) class in eleventh grade. According to the record, James Madison High School serves an ethnically diverse student population from 43 countries that speaks 26 language groups. Approximately 517 of the school’s 4,039 students are classified as LEP, and of those, 140 speak Russian. Approximately nine staff members speak Russian, including three teachers, four paraprofessionals and two guidance counselors.

Petitioner claims that she speaks Russian and also speaks and understands some English. Petitioner alleges that she has not been provided an interpreter during parent-teacher conferences and that most of the time the school uses children to provide interpretation for parents. Petitioner admits that a few teachers at James Madison High School speak Russian but alleges that they are rarely available as interpreters. Petitioner claims that she has not received a Russian translation of her children’s report cards or standardized assessments, and that she has not received translated information about the parents’ association or school leadership team.

Petitioner contends that respondents’ alleged failure to provide her with Russian translations of school related information violated federal laws, including Title I of the Elementary and Secondary Education Act,* the Bilingual Education Act,* Title VI of the Civil Rights Act of 1964 and the Equal Educational Opportunities Act of 1974. Petitioner also contends that respondents violated Education Law §3201, Part 154 of the Commissioner’s regulations and the “Guidelines for Programs under Part 154 of Commissioner’s Regulations for Pupils with Limited English Proficiency,” published by the State Education Department in 1998. Petitioner contends further that respondents violated the New York City Board of Education’s Resolution on the “Establishment of Policy on Provision of Translation and Interpretation Services for Limited- English Speaking Parents.” Petitioner seeks an order directing respondents to comply with the above provisions of law, regulation, guidelines and resolution. On August 23, 2002, I granted petitioner’s request for interim relief.

Petitioner also seeks to consolidate this appeal with several other appeals brought by parents of limited English proficient students in the New York City School District raising similar claims. Petitioner purports to represent a class of individuals, with the petitioners in the other four appeals as representatives. Respondents oppose petitioner’s request for class status and seek dismissal of petitioner’s federal claims on procedural grounds.

Respondents contend that some school related information was sent to petitioner in Russian and English. Respondents further contend that Tatyana’s and Aleksandr’s high school report cards and standardized assessments, which are computerized, would have been translated for petitioner had respondents been informed that she required such translation. Respondents also contend that petitioner would have been provided interpreter services had respondents been informed that she required oral interpretation.

Before turning to the merits, I will first address several procedural matters. Petitioner seeks to consolidate this appeal with several others pending before me. However, review of the appeals reveals significant differences of fact. Therefore, I decline to do so.

To the extent petitioner attempts to bring this appeal on behalf of a class, class certification is also denied. An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Colety, et al., 42 Ed Dept Rep 162, Decision No. 14,806; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796; Appeal of Finkel, 41 id. 74, Decision No. 14,619). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Recore, 42 Ed Dept Rep ___, Decision No. 14,856; Appeal of Colety, et al., supra). Petitioner has failed to meet these requirements.

Regarding petitioner’s federal claims, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of Finkel, supra) or the Equal Educational Opportunities Act (Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594) or to obtain relief under the No Child Left Behind Act (See, 20 USC §7844[a][3][C]). Accordingly, these claims are dismissed.

With respect to petitioner’s remaining claims, petitioner contends that respondents’ alleged failure to provide her with school related information in a language she understands violates Education Law §3201, Part 154 of the Commissioner’s regulations, New York State Education Department guidelines and respondents’ policy. In an appeal to the Commissioner, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which she seeks relief (8 NYCRR §275.10; Appeal of M.F. and J.F., 43 Ed Dept Rep ___, Decision No. 14,960; Appeal of Kessler, 43 id. ___, Decision No. 14,958).

With respect to petitioner’s claim under Education Law §3201, that statute is set forth at Article 65, Part I of the Education Law pertaining to compulsory education. The statute prohibits discrimination against student admission or assignment to public schools based on race, creed, color or national origin. The petition is devoid of any allegation that petitioner’s children have been denied admission to the district schools or assigned to a school on a prohibited ground. Consequently, I find no basis for petitioner’s §3201 claim.

Part 154 of the Commissioner’s regulations requires each board of education to “distribute to parents, or other persons in parental relation to pupils with limited English proficiency, school related information in English or when necessary the language they understand” (8 NYCRR §§154.3[c] and 154.4[a]). Petitioner asserts that she speaks Russian and some English and that respondents have not provided her with adequate translation or interpretation services during parent-teacher conferences at James Madison High School and that she has not received any school related information translated into Russian.

Respondents submit an affidavit of the James Madison High School assistant principal who asserts that there were nine Russian-speaking staff members, including paraprofessionals, guidance counselors and teachers, at James Madison High School during the time petitioner’s children attended who routinely provided interpretive services for non-English speaking parents. Petitioner replies that her son’s Russian-speaking guidance counselor was not consistently available to interpret for her, that she was not provided interpreter services at parent-teacher conferences, and that the high school uses other students to provide interpretation services. After careful review of the aforementioned evidence, I find petitioner has not met her burden of proof.

Petitioner’s claim that she has not received any school related information translated into Russian is not supported by the record. While petitioner claims that she did not receive such information translated into Russian, she submits no copies of any English notices that were received by her. As part of its answer, respondents submit an affidavit by the James Madison High School assistant principal asserting that petitioner was provided school related documents in English and Russian. The assistant principal avers that documents such as notices about student testing, behavior problems, security procedures, HIV/AIDS education, safety and health issues, after school programs and adult education courses are routinely translated into Russian and sent home to parents. Neither party submits a copy of the children’s report cards but respondents nevertheless indicate they are available in both English and Russian. I note that copies of Russian translations of the other documents are attached to the assistant principal’s affidavit.

The assistant principal’s affidavit asserts that both of petitioner’s children speak English well, that Russian-speaking teachers at James Madison High School taught Aleksandr native language arts and science classes, and that Aleksandr has been assigned a Russian speaking guidance counselor. The assistant principal avers that two Russian speaking guidance counselors at James Madison High School take telephone calls all day from Russian speaking parents, regularly translate and interpret for other staff, and have been assigned greatly reduced case loads to enable them to provide translation and oral interpretation at any time.

The assistant principal further avers that the Russian speaking guidance counselors attend all school events to which parents are invited, including college nights, parent-teacher association (PTA) meetings and parent-teacher conference nights. She also states that since 1995, James Madison High School has conducted parent programs for immigrant parents, which are publicized in Russian and include courses in pre-GED and GED preparation, keyboarding, citizenship training and ESL classes. She maintains that despite these opportunities, petitioner has not participated in programs for Russian speaking parents and has not made use of the interpreter services offered by the two Russian speaking guidance counselors during parent-teacher conferences. She further maintains that because of the availability of so many Russian speaking staff members, students would rarely be asked to interpret for a parent, and a student would not be used without parental consent or if the subject matter were sensitive or confidential.

Finally, respondents submit an affidavit by the superintendent of the Division of English Language Learners and Parent Outreach of the New York City Department of Education enumerating the numerous school related documents and videos translated into Russian and provided to New York City schools for dissemination to parents, as necessary.

As noted above, in an appeal to the Commissioner, petitioner has the burden of establishing the facts entitling her to relief. After careful review of the record before me, I find petitioner has not met her burden. On this record, it is unclear whether, or to what extent, petitioner requires Russian translation of school related information and why she may not have received the Russian-translated information respondents’ assistant principal asserts was sent to her. Respondents have submitted copies of critical documents provided petitioner in English and translated into Russian, while petitioner does not submit a single copy of any document written only in English she claims to have received. In addition, petitioner admits that she speaks and understands some English and does not deny respondents’ assertions that both of her children speak English well. Nor does she deny respondents’ claim that opportunities for translation and interpretation by Russian speaking guidance counselors are offered daily by James Madison High School, including translation of report cards and standardized assessments. The record, therefore, does not support petitioner’s claim.

Finally, petitioner claims that respondents’ alleged failure to provide her with school related information in a language she understands is not in compliance with an October 2001 New York City Board of Education Resolution on the “Establishment of Policy on Provision of Translations and Interpretation Services for Limited-English Speaking Parents.” Review of the resolution reveals that the sole provision that might be relevant to this appeal is limited to directing the Chancellor to develop and present within 90 days “an implementation plan for improving verbal and written communications with limited English-speaking parents that are critical to their children’s education.” That requirement does not directly relate to the specific allegations in the petition. Although it appears that no implementation plan has been developed thusfar, the petition does not contain any allegation regarding the timeliness of the implementation plan. It merely asserts in a conclusory fashion that respondents are not in compliance with their policy by virtue of their alleged failure to provide translated material.

Based upon the foregoing, petitioner’s appeal must be dismissed. Respondents, however, are reminded of their continuing obligation to comply with all requirements of Part 154 of the Commissioner’s regulations.

 

THE APPEAL IS DISMISSED.

END OF FILE

* Effective January 8, 2002, Title I of the Elementary and Secondary Education Act was repealed and re-enacted as Title I of the No Child Left Behind Act. Also effective January 8, 2002, the Bilingual Education Act (Title VII of the Elementary and Secondary Education Act) was omitted and re-enacted as Title III of the No Child Left Behind Act.