Appeal of A.M., on behalf of her son C.M., from action of the Board of Education of the Mamaroneck Union Free School District regarding denial of admission.

Decision No. 16,974

(September 26, 2016)

New York Civil Liberties Union, attorneys for petitioner, Jordan Wells, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Emily J. Lucas, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Mamaroneck Union Free School District (“respondent”) to permit her son, C.M., to enroll in respondent’s district without the payment of tuition.  The appeal must be sustained in part.

According to the record, during the 2015-2016 school year, C.M., a sixteen-year-old student, moved from Guatemala to New York.  On March 29, 2016, petitioner sought to enroll C.M. and his younger siblings in respondent’s district.  C.M.’s younger siblings were permitted to begin attending respondent’s schools.  However, by letter dated April 4, 2016, respondent’s Director of Research, Assessment and Accountability (“director”) denied petitioner’s request to enroll C.M.  The letter stated as follows:

Based upon the information you provided it appears that [C.M.] has previously graduated from the highest level of compulsory education offered in Guatemala.[1]   Accordingly, [C.M.] is not entitled to attend Mamaroneck High School tuition free.  (See, Appeal of Botros, 46 Ed. Dept. Rep. 142 (2006)).  In accordance with Education Law Section 3202, the District is only permitted to enroll resident students who have not previously graduated.

This appeal ensued.  Petitioner’s request for interim relief was granted on May 16, 2016.

Petitioner asserts that C.M. has not obtained a high school diploma and that respondent’s refusal to permit him to attend its high school is without basis.  Petitioner maintains that respondent’s determination is in violation of Education Law §§3201 and 3202, the State and federal constitutions, and Title VI of the Civil Rights Act of 1964.  She requests an order directing respondent to permit C.M. to attend its high school tuition-free.

Respondent contends that C.M. completed his secondary education in Guatemala, and therefore, its decision was rationally-based and reasonable and neither arbitrary nor capricious.

To the extent that petitioner alleges violations of the State and federal constitutions and Title VI of the Civil Rights Act of 1964, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Specifically, the Commissioner has ruled that an appeal pursuant to Education Law §310 is not the proper forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of Cartagena, 43 Ed Dept Rep 267, Decision No. 14,991).  Therefore, to the extent that petitioner seeks relief based on violations of the State and federal constitutions and Title VI of the Civil Rights Act of 1964, such claims are dismissed.

Education Law §3202(1) provides, in pertinent part, as follows:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

On this record, I find that petitioner has carried her burden of establishing that her son has not received a high school diploma and is therefore entitled to attend respondent’s schools tuition-free.

In support of petitioner’s request for enrollment, she submitted various records regarding her son’s education in Guatemala, including a Certificate of Studies issued by the Guatemalan Ministry of Education on November 30, 2015.  The Certificate indicates that C.M. completed the “Nivel de Educación Media, Ciclo de Educación Básica.”[2]  Petitioner also submitted a copy of a diploma, which she refers to as a “middle school diploma,” indicating that C.M. completed the “Nivel de Educación Media, Ciclo de Educación Básica de Telesecundaria.”

 Respondent asserts that it reviewed the documents petitioner submitted and determined that C.M. successfully completed the equivalent of a high school education while in Guatemala.  Specifically, respondent’s superintendent submits an affidavit in which he avers that he reviewed the student’s transcript from Guatemala which indicated that he had successfully completed “Ciclo de Educación Básica de Telesecundaria” and that C.M.’s coursework included Chemistry, Physics, Artistic Expression and Appreciation, and Technology Education.  Further, the superintendent avers that he researched the Guatemalan education system, which he states has three cycles of education: (1) “primary cycle”; (2) “ciclo prevocacional”; and (3) “ciclo diversficado”; in addition to several advanced degree cycles.  Respondent submits a printout from the database on which the superintendent relied for his research, entitled “Education System in Guatemala,” which describes each of these cycles and advanced degree cycles. The superintendent refers to the “Ciclo de Educación Básica” as “ciclo prevocacional.”  He concludes that, based upon C.M.’s transcript, “it was clear that he successfully completed ciclo prevocacional.”  However, he found “ciclo prevocacional” to be equivalent to a high school program because it involved high school-level coursework and resulted in C.M. receiving a diploma.  Moreover, the superintendent avers that “ciclo diversificado” is most similar to post-secondary education because it “provides education and training in specialized career areas such as teaching and computers.”  This, according to the superintendent, “is career training, once a student completes their academics in Guatemala.  The academics are completed in ciclo prevocacional.  The academics in ciclo prevocacional are similar to those in [respondent]’s high school (e.g. physics, chemistry, etc.).  Indeed, [C.M.] received a diploma based upon his studies in ciclo prevocacional.”  The superintendent also considered the fact that C.M. was 16 years old at the time of his graduation from ciclo prevocacional in Guatemala, which is older than the typical age of middle school completion in New York (i.e., age 13 or 14).  Based on this, respondent denied C.M. enrollment in its schools.

In response, petitioner asserts that secondary education in Guatemala is divided into two stages: (1) “Ciclo de Educación Básica”; and (2) “Ciclo Diversificado.”[3] “Ciclo de Educación Básica,” according to petitioner, is three years long, and the students are generally 13 to 15 years of age.  “Ciclo Diversificado” is at least two years long, and the students are generally 16 to 18 years of age. According to petitioner, contrary to respondent’s position, “Ciclo de Educación Básica” does not constitute the completion of academic studies in Guatemala.  Rather, students in “Ciclo Diversificado” may choose between several different courses of study or training.  Although students may elect to complete “Ciclo Diversificado” through specialized vocational training in a certain area, such as agriculture or industry, they may also elect to continue general academic studies through a “Ciclo Diversificado” option, to obtain a “bachillerato de ciencias y letras.”[4]   Petitioner asserts that, “[r]egardless of the path a student chooses within the Ciclo Diversificado, it is not equivalent to college or university.  Rather, upon information and belief, students who complete the Ciclo Diversificado are then eligible to begin pursuing university degrees in Guatemala.”

As petitioner notes, NYC DOE’s manual for educators evaluating foreign transcripts indicates that “Ciclo Diversificado,” which C.M. has not completed, constitutes upper secondary education and “offers the student the choice between academic courses or a more vocational/technical course of study.”  Indeed, the research upon which respondent relied in making its determination, “Education System in Guatemala,” confirms that “Ciclo Diversificado” is the second of two parts of secondary school and specifically notes that “Ciclo Diversificado” results in a “Certificate/Diploma awarded: Bachillerato,” which is a “prerequisite for access to university education.”  The parties do not dispute that C.M. completed only “Ciclo de Educación Básica” and has not completed “Ciclo Diversificado.”  Therefore, he has not obtained his Bachillerato de Ciencias y Letras.

Although respondent repeatedly maintains that C.M. has received the “equivalent” of a high school education, I note that respondent does not assert or establish that C.M. received a high school diploma; nor does the record indicate that C.M. received a high school diploma and graduated from the educational system in Guatemala (Appeal of C.S., 54 Ed Dept Rep, Decision No. 16,697; cf. Appeal of Botros, 46 id. 142, Decision No. 15,467).

On this record, petitioner has established that her son completed middle school in Guatemala in 2015, but did not receive a high school diploma (cf. Appeal of Botros, 46 Ed Dept Rep 142, Decision No. 15,467).  Therefore, he is not precluded from attending school in New York on that basis.  Accordingly, I find that petitioner has met her burden of establishing that respondent’s determination was arbitrary and capricious.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent allow C.M. to attend school in the Mamaroneck Union Free School District without the payment of tuition.

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