Appeal of DESDEMONIA VISCONTI, on behalf of her daughter DESDEMONA SORHAINDO, from action of the Board of Education of the Hendrick Hudson Central School District regarding denial of admission.

Decision No. 17,366

(April 2, 2018)

Gina DeCrescenzo, P.C., attorneys for petitioner, Gina M. DeCrescenzo, Esq., of counsel

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hendrick Hudson Central School District (“respondent”) to permit her daughter, Desdemona (the “student”), to enroll in respondent’s district without the payment of tuition.  The appeal must be dismissed.

According to the record, in 2015 petitioner moved from the Commonwealth of Dominica (“Dominica”) to a residence located within respondent’s district.  In December 2016, the student emigrated from Dominica to live with petitioner.

In January 2017, petitioner enrolled the student in respondent’s district.  Respondent admitted the student, who was 17 years old at the time, into its high school as a junior.  The student attended high school from January through June 2017.

On September 5, 2017, the student requested to meet with the high school guidance counselor regarding her schedule.  During this meeting, the student informed the guidance counselor that she had already graduated from high school in Dominica and had taken some college courses in Dominica.  The student also expressed interest in attending Westchester Community College (“WCC”) during the 2017-2018 school year.

Later that same day, the guidance counselor contacted the high school principal and informed him that, based upon a review of the student’s educational records from Dominica, the student had graduated from Goodwill Secondary School and received a Caribbean Secondary Education Certificate (“CSEC”) in July 2016.

The student met again with the guidance counselor before the end of the school day on September 5, 2017, to discuss the student’s educational status.  The student confirmed that she had graduated from Goodwill Secondary School in Dominica and that the school issued her a CSEC.  The guidance counselor explained that she did not qualify for a New York State diploma, provided the student with her contact information and offered to help her apply to WCC.

On or about September 6, 2017, the guidance counselor met with the student and her stepfather to discuss the student’s interest in attending WCC.  According to the guidance counselor, this meeting lasted approximately two to three hours.  During the course of this meeting, the guidance counselor and student completed the student’s application for admission to WCC.

On or about September 7, 2017, an enrollment counselor at WCC (“WCC enrollment counselor”) contacted the guidance counselor and informed her that the student had been admitted for attendance.[1]

On September 8, 2017, the high school principal spoke to petitioner on the telephone.  The principal indicated that, because the student had received a CSEC in Dominica, she was not entitled to attend respondent’s schools without the payment of tuition.  This appeal ensued.  Petitioner’s request for interim relief was denied on October 16, 2017.

Petitioner admits that the student received a CSEC from Goodwill Secondary School in Dominica but contends that this certificate is not equivalent to a New York State high school diploma.  Specifically, petitioner alleges that: (1) the student’s CSEC required only 11 years of public education; (2) Dominica’s public education system is “neither substantively nor functionally equivalent” to the public education system in New York State; (3) a certificate from Dominica is “not as good in the job market”; and (4) the student’s certificate from Dominica is “not as useful as” a New York State diploma for purposes of “enter[ing] college or university.”  Petitioner further alleges that the district has a pattern or practice of discriminating against students based on their countries of origin, and that the student was the victim of such discrimination.  Petitioner also contends that she was entitled to a hearing prior to respondent’s determination pursuant to 8 NYCRR §100.2(y). 

For relief, petitioner seeks determinations that the student “is entitled to notice and [a] reasonable opportunity” prior to a “decision to disenroll” the student, and that the student may attend respondent’s schools without the payment of tuition.  Petitioner also requests that I direct respondent to: (1) “reinstate” the student until she receives a high school diploma from respondent’s district or reaches the age of 21; (2) allow the student to attend respondent’s high school’s “graduation ceremony with the current senior year cohort”; and (3) award the student a Regents diploma upon completion of the requirements to obtain such a diploma.  Petitioner also requests that the student be awarded “compensatory education,” and that any such award be considered as “reasonable credit” toward the requirements for a Regents diploma.

Respondent admits that it erroneously permitted the student to attend its high school in January 2017, but submits that, upon discovering this error, it reasonably determined that the student was ineligible to attend respondent’s high school without payment of tuition due to her receipt of a CSEC from Goodwill Secondary School in Dominica.

To the extent that petitioner alleges violations of the State and federal constitutions, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).  Therefore, to the extent that petitioner seeks relief based on violations of the State and federal constitutions, such claims are dismissed (Appeal of A.M., 56 Ed Dept Rep, Decision No. 16,974).

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

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).

First, petitioner argues that, pursuant to 8 NYCRR §100.2(y)(6), she was entitled to “notification of the procedures to obtain review” of respondent’s determination that she was ineligible to attend its schools without the payment of tuition as well as an “opportunity to submit information concerning the child’s right to attend school in the district.”  Petitioner’s reliance on this regulation is misplaced.  As stated in 8 NYCRR §100.2(y)(1), “[t]he purpose of this subdivision is to establish requirements for determinations by a board of education or its designee of student residency and age” (emphasis added).  Thus, this regulation applies only to determinations of residency and age and does not apply to a determination that a student may not attend a district’s schools tuition-free due to his or her prior receipt of a high school diploma.[2]  Therefore, petitioner was not entitled to the procedural protections outlined in 8 NYCRR §100.2(y) under the circumstances described in this appeal.

Turning to the merits, petitioner has failed to meet her burden of proving that the student’s certificate from Dominica does not constitute a “high school diploma” within the meaning of Education Law §3202(1), or that respondent acted arbitrarily or capriciously in so concluding.  To the extent petitioner claims that the student has not received a “high school diploma” because Dominica does not offer a public education equivalent to that offered in New York State, she provides no proof in support of this claim.  Petitioner merely submits a “preliminary results slip” from the Caribbean Examinations Council indicating that the student achieved general proficiency in several subjects as well as a chart offering a general description of educational credentials in Dominica.[3]  This evidence does not establish, as petitioner alleges, that a certificate issued by Dominica does not constitute a “high school diploma” within the meaning of Education Law §3202(1).  Rather, the record indicates that the student graduated from Goodwill Secondary School in July 2016 which is consistent with the student’s statements to respondent’s employees.  Petitioner has not submitted a reply or other evidence to refute respondent’s contentions in this regard.

Further, petitioner’s contentions in this respect are belied by the fact that, according to the record, the student attended college-level courses in Dominica and was admitted by WCC in the fall of 2017.  Although respondent erred by initially admitting the student in January 2017, there is no information in the record suggesting that respondent’s subsequent determination was arbitrary or capricious.  Therefore, the student is not eligible to attend respondent’s district without the payment of tuition (Appeal of Botros, 46 Ed Dept Rep 142, Decision No. 15,467).

Finally, to the extent that petitioner contends that respondent’s determination was based on unlawful discrimination based on national origin, the record is devoid of any support for this allegation and, as discussed above, respondent’s determination is supported by the evidence in the record.  

I have considered petitioner’s remaining contentions and find them to be without merit. 

THE APPEAL IS DISMISSED.

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