Appeal of GILLES R. R. ABITBOL, on behalf of A.M. and E.N., from action[ST1]  of the Board of Education of the Altmar Parish Williamstown Central School District regarding the provision of English as a New Language services.

Decision No. 17,333

(February 27, 2018)

Gilles R. R. Abitbol, Esq., attorney for petitioner

Bond Schoeneck & King, attorneys for respondent, Bethany A. Centrone, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the Board of Education of the Altmar Parish Williamstown Central School District (“respondent”) failure to provide English as a New Language (“ENL”) services to A.M. and E.N. (“the children”) by an appropriately certified teacher.[1]  The appeal must be dismissed.

By Order of Custody dated September 12, 2012, the children were placed in the custody of the Commissioner of Children and Family Services of Onondaga County pursuant to Article 6 of the Family Court Act.[2]

The children were placed into foster care and, on August 26, 2013, were enrolled in the respondent’s district.  During the 2013-2014 school year, A.M. was enrolled in second grade and E.N. was enrolled in fourth grade; at which time, the children were tested to determine whether they were eligible for ENL services.  Both students were found to be eligible for ENL services.  For the 2013-2014 and 2014-2015 school years, the children were provided with ENL services by a certified English as a Second Language (“ESOL”) teacher employed by the district.

At the end of the 2014-2015 school year, the district tested the children’s English language proficiency using the New York State English as a Second Language Achievement Test (“NYSESLAT”).  Both students met the criteria in 8 NYCRR §154-2.3(m) and were designated as former English language learner (“ELL”) students.

At the end of the 2014-2015 school year, the certified ESOL teacher resigned.  At the beginning of the 2015-2016 school year, the children were the only students in the district requiring ENL services.  The district tried to fill the ESOL teacher vacancy, but was unsuccessful. 

In the fall of 2015, the elementary school principal for the district met with the children’s foster mother regarding the provision of ENL services.  The principal explained that the children were going to receive the required amount of ESL instruction from a SUNY Oswego ESOL teacher candidate who had experience in teaching ENL in other countries.  According to respondent, the children’s foster mother stated that she was satisfied with the arrangement and that she found the district’s efforts acceptable.

At the end of the 2015-2016 school year, the children were tested again on the NYSESLAT.  Both students again met the exit criteria to be designated former ELLs.

During the 2016-2017 school year, the district again took steps to fill the position of certified ESOL teacher but was unsuccessful.  On November 1, 2016, petitioner sent respondent’s superintendent of schools a letter alleging that the children were not receiving English as a Second Language (“ESL”) instruction from a certified ESOL teacher as required by New York State regulations. 

By letter dated November 15, 2016, respondent’s attorney explained the steps that the district took to fill the vacancy created by the resignation of its only certified ESOL teacher.  The attorney further explained that the children were the only ENL students in the district and that they were in exiting status, meaning that they had achieved the State-determined level of English language.  This appeal ensued.

In the petition, Petitioner asserts that the district is not providing the children with ENL services by a New York State certified ESOL teacher, in violation of Part 154 of the Commissioner’s regulations.  Petitioner seeks a determination that respondent is in violation of the Commissioner’s regulations and requests that I require respondent to provide the children with adequate and lawful ENL services.

Respondent asserts that petitioner has no standing to appeal on behalf of the children and that petitioner’s appeal is untimely.  Respondent further asserts that it did not violate the Education Law or Commissioner’s regulations.

I must first address a procedural issue.  Respondent asserts that petitioner does not have standing to bring this appeal.  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).  Petitioner makes no allegations that the respondent’s actions caused him to directly suffer personal damage or injury to his civil, personal or property rights.  Petitioner instead argues that respondent has failed to provide the children with appropriate ENL services by a certified ESOL teacher, in violation of Part 154 of the Commissioner’s regulations.  He contends that he has standing to commence this appeal on behalf of the children because the Onondaga Family Court appointed him as the children’s attorney and since the children’s education is constantly reviewed by the Family Court Judge, he has standing to commence this appeal on the children’s behalf.  I disagree that petitioner’s appointment by Family Court as the children’s attorney means that petitioner has standing to commence an appeal pursuant to Education Law §310 on behalf of the children.  The court order appointing him as an attorney in the Family Court proceeding provides that he was “appointed as Attorney for the Child as to ... petitions that are filed within this Court that relate to the child(ren) listed herein”.  There is nothing in this order that authorizes petitioner to serve as the children’s attorney in any other legal matter in which the children are or may become involved (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,182).  Moreover, the record indicates that the children are in the custody of the Commissioner of Children and Family Services of Onondaga County, who would have standing to commence this appeal (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,182).  In light of the foregoing, I find that petitioner does not have standing to bring this appeal.

Additionally, 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).  By letter dated March 22, 2017, respondent’s attorney notified my Office of Counsel that the children withdrew from respondent’s district on March 13, 2017.  Since the relief sought is a request that I require respondent to provide the children with adequate and lawful ENL services, there is no longer a controversy because the children have withdrawn from the district.  Therefore, the appeal must be dismissed.  To the extent petitioner seeks a determination that respondent is in violation of Commissioner’s regulations, I note that, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

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

THE APPEAL IS DISMISSED.

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