Appeal of L.N., S.N., A.P., and J.P., on behalf of their children, from action of the Board of Education of the Penfield Central School District regarding access to honors courses.

Decision No. 18,105

(April 4, 2022)

The Legal Aid Society of Rochester, attorneys for petitioners, Jonathan Falk, Esq., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Colleen W. Heinrich, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge a decision of the Board of Education of the Penfield Central School District (“respondent”) not to offer certain courses to students receiving fully remote instruction for the 2020-2021 school year.  The appeal must be dismissed.

Petitioners’ children (“the students”) attended high school in respondent’s district during the 2020-2021 school year.  In summer 2020, respondent held multiple public meetings to review its plans to reopen for the 2020-2021 school year.[1]  In August 2020, the district explained that the high school would offer students two options:  (1) a hybrid instructional model that utilized both in-person and remote instruction; and (2) a fully remote instructional model.   Later that month, after developing “a general sense of how many students/families wished to participate” in the remote option, the district developed course offerings for remote high school students. 

On August 26, 2020, the district informed families that fully remote students could enroll in certain advanced placement (“AP”) courses through a program offered by its Board of Cooperative Educational Services (“BOCES”).  The following day, the district informed families that it had developed an alternative pathway for remote students to participate in its “Honors Program.”[2]  This alternative pathway entailed the completion of two capstone research projects; those students who completed the projects would receive the same honors designation as students who elected to receive in-person instruction in the hybrid model.

In an email to the board president on September 1, 2020, petitioner L.N. complained of the AP and Honors Program options offered to remote learners.  The board president replied by email on September 3, 2020, restating the district’s general position.

During a board meeting on September 8, 2020, three of the petitioners spoke and expressed their concerns with the rigor of the remote learning options offered to the students.  By email dated September 15, 2020, petitioner L.N. inquired when respondent would “respon[d] to [the] appeal” she made during the September 8, 2020 board meeting.  By email that same day, the board president replied, stating that it “appreciate[d] [petitioner’s] comments” during the board meeting, but that it was unable to change the options available to its fully remote students.  This appeal ensued.  Petitioners’ request for interim relief was denied on October 28, 2020.

Petitioners complain that students who elected the remote option were not allowed the same opportunities as students who elected hybrid instruction to participate in the Honors Program and in AP courses.  Petitioners argue that respondent’s remote instruction course offerings violated the district’s written reopening plan for the 2020-2021 school year and its policies relating to homebound instruction.  Petitioners seek an order directing respondent to “provide Honors classes to eligible students in both hybrid and fully remote educational setting[s] during the ... COVID-19 ... pandemic.”

Respondent argues that the appeal must be dismissed as untimely.  Respondent also contends that the remote learning options offered during the 2020-2021 school year were consistent with its policies, its reopening plan, and the Education Law.

First, with respect to the timeliness of this appeal, an appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483). 

Petitioner L.N. admits that she received the district’s August 26 and 27, 2020 communications, which put her on notice of the district’s position with respect to the remote AP and Honors Program courses.  A recording of the September 8, 2020 board meeting reveals that petitioner S.N. spoke about the remote instruction offerings.  Petitioner A.P. also admits that he attended respondent’s September 8, 2020 meeting “to raise [his] complaint to the full board.”  The record reveals no reason why A.P.’s knowledge of the remote instruction offerings cannot be imputed to his spouse, petitioner J.P., and none of the petitioners assert that J.P. was unaware of respondent’s position on AP and Honors Program classes.  Thus, petitioners had actual or constructive knowledge of respondent’s plan for AP and Honors Program courses for remote instruction as of the September 8, 2020 board meeting.  Accordingly, the appeal was served more than 30 days thereafter and is untimely.

Petitioners argue that their time to appeal should instead be measured from the board president’s September 15, 2020 email, which they characterize as a “response to [their] appeal.”  Petitioners provided a link to a video recording of respondent’s September 2020 board meeting, which I have reviewed.  While three petitioners expressed their concerns with respondent’s AP and Honors Program offerings, they did not frame their comments as an “appeal.”  Additionally, the text of the board president’s response does not support a finding that he interpreted petitioners’ comments as an appeal.  Petitioners’ comments made during the board meeting are most accurately characterized as a request for reconsideration, which does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Petitioners also state that respondent’s September 15, 2020 email did not provide them with notice of their right to commence an appeal.  There is no evidence that the instant dispute concerns a matter subject to a mandatory statutory, regulatory, or local appeal process (compare 8 NYCRR 100.2 [y] [6] [iv] [written notice of residency determination must indicate that the “determination of the board may be appealed to the Commissioner of Education, in accordance with Education Law, section 310, within 30 days of the date of the determination”]).  Absent such a requirement, respondent had no general obligation to inform petitioners of their right to appeal to the Commissioner of Education under Education Law § 310 (Appeal of S.P. and N.P., 56 Ed Dept Rep, Decision No. 17,029).[3]

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 that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  This is especially true when a disposition of a petitioner’s request for interim relief has resolved most, or all, of the claims in the petition (Appeal of P.F., 49 Ed Dept Rep 313, Decision No. 16,039; Appeal of Martin, 41 id. 35, Decision No. 14,605).

Petitioners’ request for an interim order directing respondent to offer its remote students access to the Honors Program and AP World History was denied on October 28, 2020.[4]  The allegations in this appeal were unique to the 2020-2021 school year, the first school year after the mandatory school closures ordered by the Governor in spring 2020.  In this respect, I take administrative notice of the fact that, as of fall 2021, respondent returned to “in-person [learning] five days a week for the 2021-22 school year” (Penfield Central School District, Fall 2021 Reopening Information, available at https://www.penfield.edu/schoolnews.cfm?subpage=2012053 [last accessed Mar. 14, 2022]).  Accordingly, petitioners’ claim concerning the AP and Honors Program opportunities for remote learners has been rendered moot (see Appeal of Gordinier, 52 Ed Dept Rep, Decision No. 16,433).

Even if the appeal were not untimely and moot, it would be dismissed on the merits.  Boards of education have broad authority to prescribe the course of study in the schools of a district (Education Law §§ 1709 [3]; 1804 [1]).  I will not substitute my judgment for that of the board on matters of curricula absent evidence that the board has acted in an arbitrary or capricious manner (Appeal of Berbert, 56 Ed Dept Rep, Decision No. 16,967; Appeal of Lahm, 41 id. 193, Decision No. 14,662).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The remote instruction offerings for the 2020-2021 school year constituted a reasonable exercise of respondent’s discretion in response to the COVID-19 pandemic, especially in light of the district’s staffing shortages and technological challenges.  Respondent offered many virtual AP courses to fully remote students via BOCES and devised the capstone project to provide access to the Honors Program.  While petitioners allege that these course offerings did not provide the students with their desired level of academic rigor, “the COVID-19 pandemic has demanded many adjustments, adaptations, and sacrifices” (Appeal of Northington, 60 Ed Dept Rep, Decision No. 17,982).  In light thereof, I cannot find that respondent’s actions were arbitrary or capricious.

Considering the foregoing, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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