Appeal of SAMUEL L. RADFORD, III, BYRON J. MCINTYRE, on behalf of his daughter BRIANNA, PATRICIA A. ELLIOTT-PATTON, on behalf of her daughter KIMBERLY, and DR. WENDY MISTRETTA, on behalf of her daughter ANGELINA, 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 a public school choice corrective action plan.

Decision No. 17,282

(December 13, 2017)

Rashondra M. Martin, Esq., attorney for respondents

ELIA, Commissioner.--Petitioners appeal the actions of the Board of Education of the City School District of the City of Buffalo (“board”), Superintendent Pamela C. Brown (“superintendent”), 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 (collectively “respondents”), regarding its public school choice corrective action plan.  The appeal must be dismissed.

According to the petition, petitioners McIntyre, Elliott-Patton, and Mistretta are the parents of students in respondents’ district.  Petitioner Radford is president of the District Parent Coordinating Council (“DPCC”), which, according to petitioners, is a “Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy.” 

The record indicates that, by letter dated May 29, 2013, the State Education Department (“Department”) informed respondents’ district that, during the 2012-2013 school year, it had failed to offer students who attend Title I Priority and Focus Schools public school choice as required by §120.3 of the Commissioner's regulations.  Consequently, respondents were directed to develop a corrective action plan (“CAP”) and submit it to the Department for approval.  On September 25, 2013, respondent board approved a CAP.  Although not contained in the record, I take administrative notice of official records of the Department (8 NYCRR §276.6), which indicate that respondent board submitted the CAP to the Department and the Department approved the CAP on November 6, 2013. 

Petitioners assert that respondents approved the CAP in violation of §1116 of the federal Elementary and Secondary Education Act (“ESEA”) pertaining to public school choice and Commissioner’s regulation §120.3, which require public school choice in Priority and Focus Schools.  Petitioners request that I “reject the Respondents’ September 25, 2103 PSC Corrective Action Plan”; “appoint a Special Master, at the expense of the Respondents, to develop[] a PSC Corrective Action Plan”; and “direct Respondents to immediately identify each and every available seat in an appropriate School in Good Standing in the region and immediately place students who have timely requested to be transferred out of Priority and Focus Schools in any School in Good Standing anywhere in the region.”  

Respondents[1] deny that their CAP was approved in violation of law.  Respondents also assert that the petition fails to set forth facts alleging a cause of action upon which relief may be granted and maintain that their actions constituted a good faith exercise of discretion and judgment.

As an initial matter, the appeal must be dismissed to the extent petitioners attempt to assert claims on behalf of students other than the children of petitioners McIntyre, Elliott-Patton, and Mistretta.  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).  While petitioners McIntyre, Elliott-Patton, and Mistretta have standing to bring this appeal on behalf their own daughters, they lack standing to assert the rights of others (Appeal 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).

In this regard, I also note that petitioners have failed to establish that petitioner Radford has standing to maintain the instant appeal.  Indeed, the only allegation in the petition pertaining to petitioner Radford is that he is president of the DPCC, “with the DPCC being a Buffalo Public Schools stakeholder pursuant to Sections 100.11 and 100.18 of the Commissioner’s regulations, Buffalo School Board Policy 3170 and the Buffalo Public School’s [sic] School Based Planning Shared Decision Making Policy.” Petitioners did not provide a copy of Board Policy #3170 or the “Shared Decision Making Policy,” nor do they explain how the provisions of the regulations or policies cited give Radford standing to maintain this appeal.  It is well- settled that an unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal of Russo, 46 id. 266, Decision No. 15,504), and petitioners have failed to demonstrate that the DPCC nonetheless has standing to challenge the actions complained of in this appeal.  Petitioners also do not allege any individual injury to Radford or his children, if any, as a result of respondents’ approval of the CAP.

Moreover, §100.11(e)(2) provides that “any aggrieved party who participated in the development” of a district’s shared decision-making plan may appeal an action of the board in “adopting, amending, or recertifying” such plan.  Petitioners have asserted no such claims in this appeal with respect to petitioner Radford, who therefore lacks standing to maintain this appeal (see e.g. Appeal Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeal of Kackmeister, 39 id., Decision No. 14,285). 

To the extent petitioners seek to maintain the appeal as representatives of a class of students, class status is 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 Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  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 Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797).  Petitioners have not made this showing.  In fact, the petition does not address the requisite standard at all.  While petitioners state generally that the “aggrieved parents in the Buffalo Public Schools are so numerous that joinder of all members is impracticable,” it is unclear from the record who the “aggrieved parents” are and whether they share all questions of law and fact at issue in this appeal.  Therefore, class status is denied.

Turning to the merits, respondents contend that the petition fails to set forth facts alleging a cause of action upon which relief may be granted.  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).  Petitioners McIntyre, Elliott-Patton, and Mistretta allege that respondents approved the CAP in violation of §1116 of the federal ESEA and Commissioner’s regulation §120.3 pertaining to public school choice. 

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

1. 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....

Petitioners do not articulate how the provisions of the statute and regulation cited were allegedly violated.  Petitioners present only vague, conclusory statements regarding respondents’ alleged failure to comply with the public school choice regulations, with no factual proof or substantiating documentation.  Moreover, the only proof submitted by petitioners is the May 29, 2013 letter from the Department requiring that a CAP be developed and submitted to the Department. 

In their answer, respondents deny petitioners’ allegations regarding the legality of the CAP.  Although I take administrative notice that respondents did not technically comply with 8 NYCRR §120.3(a), they made efforts to come into compliance with §120.3 through a CAP approved by the Department.  Petitioners did not submit a reply or any evidence to rebut respondents’ evidence or explain in how such arrangement is inadequate.[2]  

Accordingly, on this record and the circumstances before me, I cannot find that respondents’ actions were arbitrary, capricious, or unreasonable (see e.g. Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Application of Leman and Sluys, 39 id. 330, Decision No. 14,252; Appeal of Razzano, 38 id. 782, Decision No. 14,142).  Petitioners have failed to meet their burden of demonstrating a clear legal right to the relief requested and their burden of establishing the facts upon which they seek relief.  Accordingly, the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

END OF FILE