Appeal of ANTON HICKS, on behalf of his son OMAR, from action of the Board of Education of the City School District of the City of Buffalo, Superintendent Pamela C. Brown, and board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Florence D. Johnson, John Licata, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and James M. Sampson, regarding school choice.

Decision No. 17,247

(November 6, 2017)

Rashondra M. Martin, Esq., attorney for respondents

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Buffalo (“board”), Superintendent Pamela C. Brown (“superintendent”), and individual board members Dr. Barbara Seals Nevergold, Jason M. McCarthy, Dr. Theresa Harris-Tigg, Florence D. Johnson, John Licata, Sharon Belton-Cottman, Mary Ruth Kapsiak, Carl Paladino, and James M. Sampson (collectively “respondents”), regarding public school choice.  The appeal must be dismissed.

During the 2013-2014 school year, petitioner’s son, Omar (the “student”), was a sixth-grade student attending respondents’ P.S. 95 Waterfront Elementary School (“P.S. 95”).  In July 2013, petitioner submitted an application to have the student transferred to a school in good standing pursuant to 8 NYCRR §120.3. 

By letter dated February 7, 2014, respondents’ acting director of student placement notified petitioner that the district was unable to transfer the student to a school in good standing.  The letter further advised that “your child is eligible to remain on the Public School Choice transfer list for the upcoming 2014-2015 school year if he/she is still attending a Focus or Priority school” and that, “[t]o remain on the upcoming 2014-2015 Public School Choice transfer request list, you must inform us by Friday, February 28, 2014 by mailing, emailing, or visiting and providing your child’s current school with your request” to the contact information listed in the letter.  The letter advised that, “[i]f you do not respond by the deadline, your child’s name will be removed from the Public School Choice transfer list for 2014-2015.  If you decide that you wish to request a Public School Choice transfer in the future, you may certainly re-apply during the upcoming transfer period in March 2014; you will be notified about that opportunity in the mail.”

This appeal ensued.  Petitioner’s request for interim relief[1] was determined to be unnecessary because, by letter dated February 28, 2014, respondents’ counsel informed my Office of Counsel that respondents would permit the student to remain on the public school choice eligibility list pending a final determination in this matter.

Petitioner asserts that he does not wish to revoke his earlier application for the student to transfer schools pursuant to 8 NYCRR §120.3 and “the additional requirement placed upon [him] by the Respondents in order to maintain [his] eligibility under §120.3 is unduly burdensome, unnecessary, redundant, unfair and clearly not a requirement of” §120.3.  Petitioner seeks an order barring respondents from “implementing policies or practices that would result in the removal of a student from the Public School Choice eligibility list, absent an expressed [sic] written desire of the parent or guardian of such student to be removed from the Public School Choice eligibility list.”

 Respondents[2] deny any wrongdoing or that their inability to offer the student a transfer for the 2013-2014 school year was in violation of §120.3.  Respondents also assert that the appeal is moot since they have allowed the student to remain on the public school choice transfer list for the 2014-2015 school year and that the petition fails to set forth facts alleging a cause of action upon which relief may be granted.  Respondents maintain that their actions constituted a good faith exercise of discretion and judgment, and that they are currently under a corrective action plan with the State Education Department (“Department”) to address the issues of capacity in the district and to create additional space to accommodate transfer requests.

I must first address the procedural issues.  Respondents assert that the appeal must be dismissed 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).  Respondents assert in their answer that the appeal is moot since they have allowed the student to remain on the public school choice transfer list for the 2014-2015 school year.  Moreover, respondents also indicated to my Office of Counsel, by letter dated February 28, 2014, that respondents would permit the student to remain on the Public School Choice Eligibility List pending a final determination of this appeal.  However, respondents are not permitting the student to remain on the list indefinitely.  Thus, a determination on the merits is required and I decline to dismiss the appeal as moot.

The appeal must be dismissed to the extent petitioner attempts to assert claims on behalf of students other than his son.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  The sole relief requested by petitioner is an order “barring Respondents from implementing policies or practices that would result in the removal of a student from the Public School Choice eligibility list, absent an expressed [sic] written desire of the parent or guardian of such student to be removed from the Public School Choice eligibility list.”  While petitioner has standing to bring this appeal on behalf his own child, the student, he lacks standing to assert the rights of others (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874).

Turning to the merits, petitioner asserts that respondents violated Commissioner’s regulation §120.3 by failing to provide the requested transfer or an explanation as to why they did not “follow the mandates of” §120.3.  Petitioner also objects to respondents’ requirement, as set forth in the February 7, 2014 letter, that petitioner affirmatively notify the district if he wishes that the student remain on the public school choice transfer list for 2014-2015, instead of remaining on the transfer list pursuant to petitioner’s original July 2013 transfer application.  Petitioner asserts that such requirement is “unduly burdensome, unnecessary, redundant, unfair and clearly not a requirement of CR 120.3.” 

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).

Commissioner’s regulation §120.3 provides, in pertinent part, as follows:

(a)Each title I LEA that has a title I school in a priority or focus designation shall provide all students enrolled in the school the option to transfer to another public school served by the title I LEA at the same grade level that is not a school identified as a persistently dangerous school ... or that is not a priority [or] focus school.

* * *

(g)  In accordance with section 1116(b)(6) of the NCLB, 20 U.S.C. section 6316(b)(6)[,] the title I LEA shall promptly provide parents or other persons in parental relation to students in priority or focus schools with notice of the student's option to transfer to another public school pursuant to this section....

With regard to petitioner’s claim that respondents violated Commissioner’s regulation §120.3 by failing to provide the requested transfer or an explanation as to why they did not “follow the mandates of” §120.3, respondents assert that they were unable to provide the transfer because the district lacked the capacity to meet all transfer requests for the 2012-2013 school year and are operating their public school choice program under a corrective action plan (the “plan”) approved by the Department during the 2013-2014 school year to build capacity for transfer requests.[3]  Specifically, according to the agreed-upon plan, respondents indicate that the Department provided respondents with a goal of establishing 300-500 new seats for transfer requests in the 2013-2014 school year (which would lead to approximately 14-24 percent of transfer requests being granted in that school year), which respondents have met by filling 449 seats.  Respondents assert that, in petitioner’s case, due to the number of low-achieving students making transfer requests and respondents’ obligation to meet transfer requests from the previous school year, respondents were unable to offer the student a transfer in the 2013-2014 school year.  Although respondents did not technically comply with 8 NYCRR §120.3(a), they provided an explanation for their inability to do so under the circumstances and their efforts to come into compliance with §120.3 through a corrective action plan approved by the Department.  Petitioner did not submit a reply or any evidence to rebut respondents’ evidence or explain how such arrangement is inadequate.

Further, petitioner objects to respondents’ requirement, as set forth in the February 7, 2014 letter, that petitioner reapply on behalf of the student to be placed on the public school choice transfer list for 2014-2015, as “unduly burdensome, unnecessary, redundant, unfair and clearly not a requirement of CR 120.3.”  As noted, §120.3(g) requires the district to notify parents or other persons in parental relation of the student's option to transfer to another public school sufficiently in advance of, but no later than 14 calendar days before, the start of the school year so that parents have adequate time to exercise their choice option before the school year begins (see 34 C.F.R. §200.37[b][4][iv]).  Respondents assert that, according to the plan, if respondents were unable to meet a transfer request, they were required to create a process to maintain a list for any students who were not offered a transfer for the 2013-2014 school year.    Respondents maintain that they created a process, as indicated in the February 7, 2014 letter to petitioner which informed him that the student was eligible to remain on the transfer list for the 2014-2015 school year, in accordance with the guidelines from the Department.  Petitioner did not submit a reply or any evidence to rebut respondents’ contention that petitioner was required to reapply to be placed on the public school choice transfer list for 2014-2015.

Based on the record and circumstances before me, I cannot conclude that respondents’ actions were arbitrary, capricious or unreasonable.

THE APPEAL IS DISMISSED.

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