Appeal of SAMUEL L. RADFORD, III and TIMEKIA R. JONES, on behalf of her children, from action of the Board of Education of the City School District of the City of Buffalo, Superintendent Pamela C. Brown, and board president Dr. Barbara Seals Nevergold, regarding public school choice.

Decision No. 17,283

(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 president Dr. Barbara Seals Nevergold (collectively “respondents”), regarding public school choice.  The appeal must be dismissed.

According to the petition, petitioner Jones is the parent of two students in respondents’ district.  Petitioner Radford is president of the District Parent Coordinating Council (“DPCC”), which, according to petitioners, is “a corporation organized under the not-for-profit Corporation Law of New York State and whose mission includes facilitating parent engagement in the furtherance of educational achievement of students in the City of Buffalo.” 

The record indicates that, by letter dated March 14, 2014, the superintendent advised parents in Title I Priority and Focus Schools within the district of their rights to transfer their children into a school in good standing.  The letter states:

The federal No Child Left Behind Act stipulates that you are eligible to request a transfer for your child from a Focus School to a School in Good Standing under the provisions of Public School Choice.  We encourage you to ask your child’s principal about current efforts underway to improve your school’s Adequate Yearly Progress on New York State assessments.

According to petitioners, principals throughout the district sent similar letters to parents requesting that they not transfer their children.  According to petitioners, the letters are confusing “in as much as they purport to inform parents of their right to request a transfer to a school in good standing, while at the same time suggesting that the school the children currently attends [sic] is ‘good.’”

This appeal ensued.  Petitioners’ request for interim relief was denied on April 30, 2014. 

Petitioners assert that respondents “have conspired to deny parents of [district] students a statutory right afforded by law under a pretext and strategy that they are ‘competing’ for students” which is “a transparent attempt to stop parents of students in Focus and Priority schools from exercising their right to request that their children be enrolled in a good school.”  Specifically, petitioners contend that respondents violated 8 NYCRR §120.3 and certain provisions of the U.S. Department of Education’s No Child Left Behind, Public School Choice Non-Regulatory Guidance by failing to provide information about public school choice in an unbiased manner and by failing to provide alternative options for parents to exercise their rights to transfer their children to a school in good standing, such as a paper application by which parents can inform respondents of their school choice under 8 NYCRR §120.3. 

Respondents[1] generally deny any wrongdoing and 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.  They also assert that the injuries alleged by petitioner Jones were caused by her own negligence because petitioner Jones has not applied for a public school choice transfer for her children.  Respondents maintain 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.

Respondents argue that petitioner Jones lacks standing to maintain this appeal because, as of April 24, 2014, she had not applied for a public school choice transfer for her children.  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).  Petitioners allege that petitioner Jones’ children attend a Priority School within respondents’ district and that petitioner Jones received the superintendent’s March 14, 2014 letter, as well as communication from a principal regarding her transfer options.  Because this appeal challenges respondents’ process regarding transfer requests for the 2014-2015 school year and was commenced within the period during which respondents were accepting transfer requests, for which petitioner Jones’ children were eligible, I decline to find that petitioner Jones lacks standing to maintain this appeal on behalf of her children.

However, the appeal must be dismissed to the extent petitioners attempt to assert claims on behalf of students other than the children of petitioner Jones.  While petitioner Jones has standing to bring this appeal on behalf of her own children, she lacks 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 District Parent Coordinating Council (“DPCC”), which, according to petitioners, is “a corporation organized under the not-for-profit Corporation Law of New York State and whose mission includes facilitating parent engagement in the furtherance of educational achievement of students in the City of Buffalo.”  Petitioners do not explain how Radford has standing to maintain this appeal or how 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’ alleged violations of the federal non-regulatory guidance provisions.

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 respondents’ conduct with regard to the implementation of Commissioner’s regulation §120.3 is “wonton and reckless and constitute [sic] an egregious, intentional and willful initiative to dissuade, deny, frustrate and thwart the rights of more than 27,000 parents of students in Priority and Focus Schools in the City of Buffalo to elect to request a transfer of their children to a school in good standing,” 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.

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).  Petitioners request the following “immediate relief”:

(1) a cease and desist order, barring [r]espondents from acts tending to dissuade parents from exercising their rights under C.R. 120.3, (2) a two-week extension of the time parents will have to exercise their right under C.R. 120.3, (3) additional means (mail, fax, or drop off at school a paper application) that parents can inform the [r]espondents of their decision to seek a transfer pursuant to 120.3, ... (4) a letter, developed in consultation with [p]etitioners, mailed by [r]espondents, and endorsed by the Superintendent, to families of students in Focus and Priority schools properly informing them of their right under C.R. 120.3 and (5) [r]espondents provide a paper application by which parents can inform [r]espondents of their elective choice under C.R. 120.3 and (6) such further or additional relief the Commissioner deem just and proper.

The record indicates that petitioners object to respondents’ March 2014 letter and practices regarding public school choice for the 2014-2015 school year, which has concluded.  Further, petitioners seek only “immediate relief” in regard to such claims and their request for interim relief was denied on April 30, 2014.  Therefore, the sole relief requested by petitioners cannot be granted and the appeal is moot (see Appeal of Munno, 57 Ed Dept Rep, Decision No. 17,201; Appeal of Passer, 44 id. 245, Decision No. 15,160).

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

THE APPEAL IS DISMISSED.

END OF FILE