Appeal of DR. JACKIE CODY, on behalf of her daughter KAYLA, from action of the New York City Department of Education regarding an extended use permit.

Decision No. 17,278

(December 12, 2017)

Zachary W. Carter, Esq., Corporation Counsel, attorneys for respondent, Evan Schnittman, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals from action of the New York City Department of Education (“respondent”) regarding compliance with Chancellor’s regulation D-180.  The appeal must be dismissed.

According to the record, petitioner’s daughter is enrolled in P.S. 207, a public school located within the City School District of the City of New York.  The record further reflects that a Girl Scout troop utilizes building space within P.S. 207 pursuant to an extended use permit issued by respondent to the Girl Scouts of Greater New York (“Girl Scouts”) pursuant to Chancellor’s regulation D-180.

In an email dated September 30, 2016, petitioner identified several concerns about the Girl Scout troop at P.S. 207 and the troop leader to respondent.  On November 15, 2016, respondent’s director of the Chancellor’s strategic response group (“director”) replied, stating that respondent does not sponsor the Girl Scout troop and that the troop utilizes space at P.S. 207 pursuant to an extended use permit.  The director further informed petitioner that it had “no control” over which students participated in the troop at P.S. 207, and that any such concerns should be presented to the Girl Scouts.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 12, 2017.

In her petition, petitioner alleges that her daughter was repeatedly denied admission to the Girl Scout troop at P.S. 207 from June 2014 to September 2016.  Petitioner further complains of actions taken by the troop leader of the Girl Scout troop at P.S. 207 who, she alleges, was rude to her and her daughter and refused to enroll the student in the troop.  For relief, petitioner requests a determination that respondent violated Chancellor’s regulation D-180 and seeks a public apology.

Respondent contends that the appeal must be dismissed as untimely.  Respondent further argues that petitioner’s claims relate to actions taken by the Girl Scouts, an organization which is not within the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.  Alternatively, respondent argues that the appeal must be dismissed for failure to join the Girl Scouts, a necessary party to this appeal.  Respondent additionally argues that petitioner’s requests for relief are declaratory in nature, and the Commissioner does not issue such relief in an appeal pursuant to Education Law §310.  Finally, respondent argues that it did not violate Chancellor’s regulation D-180 with respect to its issuance of an extended use permit to the Girl Scout troop located at P.S. 207.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The last act or omission of about which petitioner complains took place in September 2016, approximately seven months prior to April 4, 2017, when petitioner served the instant petition.  Petitioner has provided no good cause for this delay in her petition (see 8 NYCRR §275.16).  Accordingly, the appeal must be dismissed as untimely.

Additionally, to the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Application of McDougall and Dacey, 42 id., Decision No. 14,819; Appeal of Philips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

Even if the appeal were not subject to dismissal on procedural grounds, it would be dismissed on the merits.  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).

     Here, petitioner alleges that respondent failed to enforce Chancellor’s regulation D-180 by allowing the Girl Scout troop at P.S. 207 to exclude her daughter from its membership.  Chancellor’s regulation D-180, which pertains to the “extended use of school buildings,” provides:

No group or organization ... may exclude persons on the basis of any impermissible discriminatory reason as set forth in Chancellor’s Regulation A-830. 

Chancellor’s regulation A-830, in turn, prohibits discrimination based upon:

actual or perceived race, color, religion, creed, ethnicity, national origin, alienage, citizenship status, age, marital status, partnership status, disability, sexual orientation, gender (sex), military status, unemployment status, prior record of arrest or conviction (except as permitted by law), predisposing genetic characteristics, or status as a victim of domestic violence, sexual offenses, or stalking.

Here, petitioner has not met her burden of proving that any discrimination prohibited by Chancellor’s regulation A-830 occurred or that respondent otherwise failed to respond appropriately to petitioner’s complaints.[1]  Instead, petitioner merely alleges that the troop leader was rude to her and that her daughter has been precluded from participating in the Girl Scout troop at P.S. 207.  Under these circumstances, I agree with respondent that petitioner’s concerns regarding the alleged actions taken by the Girl Scouts and the troop leader at P.S. 207 should be addressed to the Girl Scouts (see e.g. Appeal of Vendel, et al., 50 Ed Dept Rep, Decision No. 16,134).  On this record, I find that petitioner has failed to carry her burden of establishing that respondent acted improperly.[2]

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

THE APPEAL IS DISMISSED.

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