Appeal of D.M.L., individually and on behalf of his son, J.X.L., from action of the Board of Education of the City School District of the City of New York, the Chancellor and John Lee, Superintendent of Community School District 77, regarding provision of school related information.

Decision No. 14,990

(November 26, 2003

 

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

 

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

 

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

Petitioner’s son, J.X.L., is a limited English proficient student who attended ninth grade at Newcomers High School in Community School District 77 during the 2001-2002 school year. According to the record, Newcomers serves only a limited English proficient, immigrant student population that is approximately 58% Hispanic and 32% Asian (including Pacific Islanders) – of which 13% are Chinese.

Petitioner and his wife do not speak English, they speak Fujianese and Mandarin Chinese. Petitioner alleges that he has never been provided with adequate translation or interpretation services, that he has not received translated information about parents’ associations or school leadership teams, and that he has not received translations of his son’s report card or standardized tests. Petitioner also alleges that he did not receive translated information or interpreter services in connection with J.X.L.’s suspension from school in May 2002.

Petitioner contends, therefore, that respondents have violated his rights under federal law, 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. He also claims respondents violated his rights under New York State Education Law §3201, Part 154 of the Commissioner’s regulations, New York State Education Department guidelines and a New York City Board of Education Resolution on the “Establishment of Policy on Provision of Translation and Interpretation Services for Limited-English Speaking Parents”. He seeks an order directing respondents to comply with the above provisions of law, 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 also contend that they provide school related information to petitioner in Chinese and, therefore, are in compliance with applicable law.

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 him with school related information in a language he 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 he 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 son has 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 he speaks Fujianese and some Mandarin Chinese and that respondents have not provided him with adequate translation or interpretation services. He claims Newcomers has only two teachers who speak Chinese, that the school has only provided one of them to interpret for him in a few situations, and that he did not understand him very well. He specifically claims he was not provided an interpreter in connection with a May 2002 student discipline hearing that resulted in his son’s suspension.

Respondents submit affidavits of the Newcomers High School principal and two teachers who speak Chinese. Each asserts that there were four Chinese-speaking teachers at Newcomers during the school year available to provide interpretive services for petitioner. One teacher, Spencer Liu, avers that he spoke with petitioner several times – over an hour each time – regarding his son. He also avers that he was present at J.X.L.’s disciplinary hearing in May 2002 and translated information for petitioner regarding the charges and his rights, including his right to legal representation. As a result, petitioner obtained an adjournment to retain counsel who spoke Chinese and who represented him at the subsequent hearing. After careful review of the aforementioned evidence, I find petitioner has not met his burden.

Nor is petitioner’s claim that he has not received any school related information in Chinese – including his son’s report card and standardized tests, parent association and school leadership team information, and student discipline matters - supported by the record. Petitioner claims that notices written only in English were sent home to him. Petitioner submits no copies of any notices received by him in support of his claim. As part of its answer, respondents submit an affidavit by Newcomers’ principal asserting that school related documents translated into Chinese were sent throughout the 2001-2002 school year. The principal avers that documents such as student transcripts, school brochures, parent letters, parent association meeting notices and parent manuals are routinely translated into Chinese and sent home to parents. Neither party submits a copy of J.X.L.’s report card (student transcript), however, copies of Chinese translations of the other documents are attached to the principal’s affidavit.

Respondents also submit an affidavit by J.X.L.’s bilingual social studies class teacher who speaks Mandarin Chinese. As part of his affidavit, the teacher submits copies of classroom rules and a parent letter translated into Chinese that he asserts were sent home to petitioner. Respondents also submit an affidavit by J.X.L.’s bilingual science class teacher asserting that he sent a parent letter translated in Chinese to petitioner and sent home with students notices in Chinese regarding parent-teacher conferences. Both the principal’s and science teacher’s affidavits assert that Chinese-speaking teachers at Newcomers translated written school related materials into Chinese and that such translated materials were sent home to parents. 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 Chinese 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 him to relief. After careful review of the record before me, I find petitioner has not met his burden. On this record, it is unclear why petitioner may not have received the Chinese-translated information respondents’ principal and staff assert was sent him. Respondents have submitted copies of the critical documents translated into Chinese, while petitioner does not submit a single copy of any document written in English he claims to have received. The record, therefore, does not support petitioner’s claim.

Finally, petitioner claims that respondents’ alleged failure to provide him with school related information in a language he 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.” This requirement does not directly relate to the specific allegations in the petition. Although it appears that no implementation plan has yet been developed, 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.

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* 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.