Appeal of A STUDENT WITH A DISABILITY, and his parent, from action of the New York City Department of Education regarding a grade determination.

Decision No. 17,217

(October 12, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent, David A. Rosinus, Jr., Esq., of counsel

ELIA, Commissioner.--Petitioners, a student with a disability (“student”)[1] and his mother, appeal from action of the New York City Department of Education regarding a grade determination concerning the student.  The appeal must be dismissed.

At issue in this appeal are two administrations of multiple Regents examinations to the student.  The student failed the first administration of such examinations because, according to petitioners, the district failed to implement the student’s accommodations plan issued pursuant to Section 504 of the Rehabilitation Act of 1973 (“Section 504”).  The student passed the second administration of the Regents examinations.  This appeal ensued.

Petitioners contend that respondent failed to provide the student with the accommodations in his Section 504 plan during the first administration of the examinations and object to respondent’s inclusion of these scores on the student’s permanent record.  Petitioners request that respondent issue a transcript reflecting only the second administration of the examinations by a date certain as well as expungement of the results of the first administration of the examinations from the student’s permanent record.

Respondent contends that the appeal is moot because it has, in fact, issued a copy of the student’s transcript to petitioners which does not contain the results of the first administration of the Regents examinations.  Moreover, respondent argues that the process by which petitioners may request to amend the student's educational record is set forth in the implementing regulations for the federal Family Educational Records and Privacy Act (“FERPA”), and that the Commissioner lacks jurisdiction to hear such claims.  Finally, respondent contends that petitioners’ allegations regarding alleged violations of Section 504 are outside the scope of an appeal pursuant to Education Law §310.

The appeal must be dismissed, in part, as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Here, respondent has, in fact, issued a transcript which contains only the results of the second administration of the Regents examinations.  Therefore, having received this relief, petitioners' request for such transcript is moot.

Petitioners’ remaining allegations must be dismissed for lack of jurisdiction.  To the extent petitioners allege that the district failed to implement the student’s accommodation plan, enforcement of Section 504 is within the exclusive jurisdiction of the federal courts, the United States Department of Justice and the United States Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 108, Decision No. 15,806; Appeal of a Student Suspected of Having a Disability, 40 id. 75, Decision No. 14,425; Appeal of a Student with a Disability, 39 id. 752, Decision No. 14,369).

Additionally, petitioners’ request that respondent amend the student’s record at their request is governed by FERPA (20 U.S.C. §1232[g]) and its implementing regulations (see 34 CFR §§99.20, 99.21, 99.22).  The Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509; Appeal of R.J.M., 46 id. 262, Decision No. 15,502).

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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