Appeal of ANA CARTAGENA, individually and on behalf of her daughter JOANNA, from action of the Board of Education of the City School District of the City of New York, the Chancellor and Felix Vasquez, Superintendent of Community School District 32, regarding provision of school related information.

Decision No. 14,991

(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 Vasquez (hereinafter “respondents”) to provide her with school related information in a language that she understands. The appeal must be dismissed.

Petitioner’s daughter, Joanna, is a limited English proficient student who attended second grade at P.S. 116 in Community School District 32 during the 2001-2002 school year. According to the record, the student population of P.S. 116 is approximately 86 percent Spanish-speaking.

Petitioner and her husband do not speak English, they speak Spanish. Petitioner alleges that respondents failed to provide her with required translation or interpretation services, that respondents failed to fully explain to her the differences between bilingual education and English as a Second Language, that she has never received any written translations of school related information, including information about parents’ associations or school leadership teams, and has not received translations of her daughter’s report card or teacher’s comments about her daughter’s progress. Petitioner also alleges that she has not attended parent-teacher conferences because there are no interpreters available at the meetings and that she has no way to communicate with her daughter’s teachers because they only speak English.

Petitioner contends, therefore, that respondents have violated her 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. Petitioner further claims that respondents have violated her 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.” She 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 Spanish 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 Ed Dept Rep 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 daughter 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 she speaks Spanish and that respondents have not provided her with required translation or interpretation services. Petitioner also claims that she has not received any school related information in Spanish and that every notice sent to petitioner has been in English only.

As part of their answer, respondents submit affidavits from Joanna’s bilingual education teacher and from the Supervisor of Bilingual Education for Community School District 32, both native Spanish speakers.

Joanna’s teacher avers that she met with petitioner twice at parent-teacher conferences and on a number of other occasions to discuss Joanna’s progress and that all of their conversations were in Spanish. The teacher avers that she has also spoken to petitioner on the phone in Spanish concerning problems Joanna had in class. She further avers that petitioner attended a parent-teacher conference during which she translated to petitioner and the other Spanish-speaking parents the details about the report card. She also avers that she subsequently met independently with petitioner for more than one hour to discuss, in Spanish, the report card as well as petitioner’s concerns about Joanna’s progress in school. She further states that, because the school has a large Spanish speaking population, parent teacher association meetings are translated into Spanish and other school related information is sent home in Spanish. She maintains that she sent notes home to petitioner regarding Joanna in Spanish and attaches copies of such notes, with petitioner’s signature evidencing receipt thereof.

Respondents’ supervisor of Bilingual Education for Community School District 32 avers that District 32 conducts orientation for parents of limited English proficient students in Spanish and provides translated written information explaining bilingual education and English as a Second Language to parents. She attaches translated copies of such information to her affidavit. She also avers that the district sends out notices concerning upcoming district events for parents in Spanish and attaches translated copies of examples of such information. She further states that in the spring of 2002 parents of limited English proficient students were notified of their children’s English language proficiency test results and were asked to respond concerning the parent’s choice of program for their children. Petitioner did not respond, but subsequently met with the supervisor to request that Joanna be removed from the bilingual education program. The supervisor further states that she informed petitioner in Spanish of her right to choose her child’s program. She attaches to her affidavit a Spanish language version of a continuance letter for placement of Joanna in an English as a Second Language class signed by petitioner.

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 Spanish 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. Significantly, petitioner failed to submit a reply to respondents’ answer and affidavits in support thereof. Moreover, petitioner failed to submit copies of any notices she claims to have received in English. After careful review of the record before me, I find petitioner has not met her burden of proving the facts upon which her claim is based.

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.” This requirement does not directly relate to the specific allegations in the petition. Although it appears that no implementation plan has been developed thus far, 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.