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Decision No. 18,225

Appeal of NAFTULI MOSTER and YOUNG ADVOCATES FOR FAIR EDUCATION (“YAFFED”) from action of the New York City Department of Education regarding substantial equivalence.

Decision No. 18,225

(January 10, 2023)

Christopher Hazen, Esq., attorney for petitioner

Hon. Sylvia O. Hinds-Radix, Corporation Counsel, attorneys for respondent, Philip S. Frank, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge the New York City Department of Education’s (“respondent”) failure to determine whether several nonpublic schools within its geographical boundaries offer substantially equivalent instruction.  The appeal must be dismissed. 

In July 2015, petitioner Moster and other individuals submitted a letter (the “2015 complaint”) to respondent alleging that 39 nonpublic schools located within its geographical boundaries did not offer substantially equivalent instruction (see Education Law § 3204 [1]-[2]).  Respondent began an investigation, providing updates to the State Education Department in August 2018 and December 2019.  This appeal ensued.

Petitioners seek to bring this appeal on behalf of “unnamed individuals including the other signatories to the [2015 complaint] as well as current and former parents and students of the [y]eshivas named in” such complaint.  Petitioners argue that respondent should be compelled to declare whether its investigation into the 2015 complaint is complete or ongoing.  If the investigation is ongoing, petitioners seek an order that respondent complete the investigation within 30 days.  If the investigation is complete, petitioners request that respondent provide a detailed public report regarding the substantial equivalency of the yeshivas named in the 2015 complaint.  Petitioners further request that respondent release various documents associated with its investigation.

Respondent argues, among other things, that petitioners cannot bring the appeal on behalf of a class and that the petition must be dismissed for improper service.  On the merits, respondent states that the investigation is ongoing.  Respondent anticipates that the investigation will be concluded by the end of the 2022-2023 school year.

With respect to petitioners’ request for class status, an appeal may only be maintained on behalf of a class where:  (1) the class is so numerous that joinder of all members would be impracticable and (2) all questions of fact and law are common to all members of the class (8 NYCRR 275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and show that all questions of fact and law are common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  Petitioners do not attempt to set forth the number of individuals they seek to represent, nor do they make any showing that all questions of fact and law are common to all members of the class.  Accordingly, class status is denied (Appeal of M.D., 58 Ed Dept Rep, Decision No. 17,591; Appeal of Beyda, 58 id., Decision No. 17,540). 

The appeal must be dismissed for improper service.  Section 275.8 (a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR 275.8 [a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).

Petitioners’ affidavit of service indicates that the petition was sent by email to “DOESubpoenas@schools.nyc.gov.”  This does not satisfy the personal service requirement of 8 NYCRR 275.8 (a).  Nevertheless, petitioners argue that respondent generally accepts service of process via email, as evidenced by information on its website.[1]  Respondent’s website indicates that “[t]he DOE accepts service of subpoenas for records and certain other legal papers by email at DOESubpoenas@schools.nyc.gov.”  However, the same website further indicates that “[s]ervice of process for legal papers other than subpoenas must generally be made upon the New York City Law Department.”  The Law Department’s website, in turn, identifies the dates and times when a “service window” is open and “temporarily” authorizes service by email to ServiceECF@law.nyc.gov.

While petitioners are correct that the phrase “certain other legal papers” is ambiguous, it was petitioners’ responsibility to ensure that they effectuated personal service as required by 8 NYCRR 275.8 (f).  Personal service is an affirmative defense that may be waived when, for example, an attorney agrees to accept service on behalf of a client (see generally Greenpoint Bank v Schiffer, 266 AD2d 262 [2d Dept 1999] [noting that the defense of lack of personal jurisdiction based on improper service may be waived], appeal dismissed 94 NY2d 890 [2000], cert denied 531 US 896 [2000]; Appeal of M.P. and T.P., 60 Ed Dept Rep, Decision No. 17,937).  Petitioners have not proved that respondent waived service, either through statements on its website or by an affirmative representation.[2]  Thus, petitioners have not demonstrated that they served a copy of the petition on respondent in accordance with section 275.8 of the Commissioner’s regulations.  As such, the appeal must be dismissed (Appeal of C.C., 53 Ed Dept Rep, Decision No. 16,526; Appeal of G.B., 46 id. 181, Decision No. 15,476).

While the appeal must be dismissed for improper service, respondent’s longstanding noncompliance raises an important issue that will be addressed by separate order (see Matter of Brachter, et al., 12 Ed Dept Rep 45, Decision No. 8,520).

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

THE APPEAL IS DISMISSED.

END OF FILE

ORDER

WHEREAS, by letter dated July 27, 2015, the New York City Department of Education (“NYC DOE”) received a complaint regarding the instruction provided at 39 nonpublic schools (the “yeshivas”) within its geographical boundaries;

WHEREAS, NYC DOE commenced an investigation into the substantial equivalency of instruction provided at the nonpublic schools named in such complaint;

WHEREAS, allegations were made that the progress of such investigation, the substance of its conclusions, and the timing of an interim report on such investigations were all influenced by political pressure from the former Mayor of the City of New York (Mayor) or other City or State elected officials;

WHEREAS, as a result of allegations that the investigation was subject to political interference, the New York City Department of Investigation and the Special Commissioner of Investigation for the New York City School District initiated a joint investigation into NYC DOE’s inquiry into the education provided at the yeshivas, which was completed in December 2018;

WHEREAS, such joint investigation in part “concluded that there was unquestionably political horse-trading in which representatives of the Mayor agreed with representatives of State legislators to delay any interim report in connection with securing the overarching goal of extending mayoral control of the City’s schools”;

WHEREAS, the State Education Department consistently provided formal and informal technical assistance to NYC DOE regarding its investigation of the yeshivas, as evidenced by letters dated January 10, 2019; January 13, 2020; and January 26, 2022;

WHEREAS, by letter dated October 21, 2021, I wrote to the Mayor to clarify remarks concerning the scope of authority for substantial equivalency inquiries and expressed the State Education Department’s “expectation that NYC DOE [would], as previously directed, complete its investigation into the 28[1] yeshivas as expeditiously as possible”;

WHEREAS, in a letter dated January 26, 2022, I again encouraged NYC DOE to complete its inquiry and make a recommendation regarding substantial equivalency “as expeditiously as possible”;

WHEREAS, during the midst of this investigation, an Education Law §310 appeal was filed concerning the instruction offered within another yeshiva (the “YMAH appeal”), alleging a failure to provide substantially equivalent instruction;

WHEREAS, as a result of the YMAH appeal, by order dated June 7, 2022, a court directed NYC DOE to conclude its investigation of the school at issue in that appeal within three months, stating that a delay of nearly three years to complete its investigation was “unreasonable”;

WHEREAS, thereafter Naftuli Moster and Young Advocates for Fair Education (“YAFFED”) filed an Education Law §310 appeal regarding the status of the investigation commenced as a result of the July 27, 2015 complaint;

WHEREAS, in response to the Education Law §310 appeal, NYC DOE averred that its investigation is ongoing and will conclude on or before the end of the  school’s 2022-2023 school year;

NOW, THEREFORE, pursuant to the authority vested in me pursuant to Article 65 of the Education Law,

IT IS ORDERED that NYC DOE complete its investigation into the substantial equivalency of instruction provided at the nonpublic schools named in the July 27, 2015 complaint and issue detailed determinations/recommendations no later than June 30, 2023.  NYC DOE shall issue a separate report for each school subject to the complaint that includes the following:

(1) school location and grade levels served;

(2)  whether the schools meet a pathway for substantial equivalency pursuant to 8 NYCRR 130.3;

(3) whether the school qualifies for a Commissioner’s determination pursuant to Education Law §3204 (2) (ii)-(iii);

(3) for those schools for which NYC DOE is responsible for a substantial equivalency determination, a determination of such school’s equivalency of instruction pursuant to 8 NYCRR 130.6 with detailed findings and evidence related to all of the instruction required by Education Law §3204 and Education Law §801 et seq. as enumerated in 8 NYCRR 130.9,; and

(4) for those schools that qualify for a Commissioner’s determination, a recommendation to the Commissioner of such school’s equivalency of instruction pursuant to 8 NYCRR 130.8 with detailed findings and evidence related to all of the instruction required by Education Law §3204 and Education Law §801 et seq. as enumerated in 8 NYCRR 130.9.

END OF FILE

 

[1] New York City Department of Education, “Legal,” https://www.schools.nyc.gov/about-us/leadership/legal (last accessed Sept. 25, 2022).

 

[2] Petitioners’ counsel asserts that he called “the Law Department at its Main Office” on July 12, 2022, and that a clerk with whom he spoke “stated [that] service should be made on NYCDOE.”  Without more specific information, I cannot find that respondent waived service, personal or otherwise, based on this statement. 

 

[1] During the investigation, NYCDOE determined that some of the 39 schools in the July 27, 2015 complaint were beyond the scope of its inquiry because such schools either no longer existed or were registered by the Board of Regents.