ERCSD §310 Appeal
Last updated: Wednesday, July 29, 2015
New York State Education Law §310 provides that persons considering themselves aggrieved by an action taken at a school district meeting or by school authorities may appeal to the New York State Commissioner of Education for a review of such action. On October 21, 2013 I filed a §310 Appeal with the Commissioner in an attempt to force the East Ramapo Central School District to provide elementary school children with instruction in the arts (visual arts, music, dance, and theatre) as is mandated by State law.
On July 23, 2015, 19 months almost to the day after I filed my petition, Commissioner of Education MaryEllen Elia dismissed it on technical grounds. You can read all the details in the actual ruling (see the last document in the list below), but the main problem is that I did not support my allegations—that the teachers were not teaching art and music and that they had not been given any training in how to do so—with hard evidence, such as an affidavit from my son's teacher. Instead, my allegations "are largely conclusory in nature and are alleged primarily upon information and belief." That's a fair assessment, although it doesn't really take into account the understandable fear among teachers to speak out against a district that (at the time) was laying off teachers at an alarming rate.
But the Commissioner didn't think much of the District's answering papers either, because they "do not clearly refute petitioner's claims and contain limited assertions, some of which are couched in both present and/or future terms." Nor was she impressed with the fact that, in response to my allegations that the students are not receiving any instruction whatsoever in art or music and that the District has not provided any training to the elementary school teachers to enable them to provide instruction in art or music, the District "merely denies knowledge or information sufficient to form a response to the allegations." The end result is, based on the record before her, the Commissioner determined that "the evidence is in equipoise." In other words, it's a tie, and in a tie, the petitioner (that's me) loses. But don't go away unhappy just yet—keep reading.
After dismissing my petition, the Commissioner had some strong words for the District:
Although I am constrained to dismiss the appeal for the reasons set forth above, I am compelled to comment on the manner in which respondent has answered the petition. As noted above, in its answer, respondent merely denies knowledge or information regarding the instruction offered to petitioner's son. Such response appears to be disingenuous and evasive. Respondent is responsible for ensuring that the East Ramapo Central School District complies with 8 NYCRR §§100.3(b)(1) and 100.4(b)(1) and if it does not know whether petitioner's son is receiving the instruction required in such regulatory provisions, it is its duty to find out. Respondent is advised to make reasonable efforts in the future to learn the facts necessary to prepare a meaningful response to such allegations.
And then, victory was snatched from the jaws of defeat: The Commissioner was apparently concerned enough by my allegations and the District's evasive response to them to close with the following:
Finally, in light of the facts and circumstances presented in this appeal, including respondent's denial of knowledge or information sufficient to form a belief as to the amount of art, music, dance and theatre instruction received by petitioner's son, and its repeated use of the future tense in describing how art instruction will be integrated into the elementary curriculum, I am directing my Office of Curriculum and Instruction to provide guidance and technical assistance to the district in order to ensure that it provides such instruction in accordance with the Commissioner's regulations.
This is, in substance, what I asked for in my petition (I asked the Commissioner to conduct a review of all the District's educational programs to determine whether they comply with relevant laws and regulations, and to direct the District to ensure that it follows those laws and regulations when developing, supervising, and administering educational programs in the district).
So although I lost the appeal itself, the end result is that NYSED is now going to be involved in making sure that my son, and the rest of the children in the public elementary schools, receive the instruction in art and music that they are entitled to under the law. And in my book, that's a win.
These are the documents that have been filed to date with the Commissioner by me and by the District, in chronological order. The "major" documents are identified in bold.
- Verified Petition. Oct. 21, 2013. This is my initial filing, called a Petition, which was served on the Board of Education and sent to the New York State Education Department (NYSED) Office of Counsel. My complaint is that my son, who is in third grade, is not receiving any instruction in the arts, in violation of New York State Education Law and the Regulations of the Commissioner of Education. I also argue to make my complaint a class action on the behalf of all District public school students in grades one through six, since none of them is receiving instruction either. Also included in the filing was a request for a stay; in essence I asked the Commissioner to force the District to stop using a program of education that does not include the arts while he decides the merits of the overall petition.
- Extension Request. Oct. 24, 2013. The District had to file their Affidavit in Opposition to Stay (see below) within three days of being served with my Petition, which would have been Thursday, Oct. 24. But because Dr. Klein had a medical emergency in his family, they asked for an extension to file until Monday, Oct. 28.
- Affidavit in Opposition to Stay. Oct. 28, 2013. This is the District's initial filing, opposing the granting of a stay (no surprise there). The filing is in the form of a sworn Affidavit from Joel Klein, Superintendent of Schools. This filing addresses the stay issue only; their full answer to the Petition is below.
- NYSED Acceptance. Oct. 29, 2013. The NYSED Office of Counsel Appeals Coordinator accepted my Petition and assigned it No. 19878.
- Denial of Stay. Nov. 4, 2013. Unfortunately, the Commissioner denied my request for a stay.
- Verified Answer with Affirmative Defenses. Nov. 12, 2013. This is the District's full response to my Petition. The filing is in the form of a "verified answer" containing five "affirmative defenses" and a sworn Affidavit from Roslyn Roth, the attorney from Minerva & D'Agostino (the Board's law firm) who is handling this case. Three of the affirmative defenses are attempts to disqualify my petition on procedural technicalities; the other two defenses argue, in essence, that because the Superintendent and the lawyer swear the District is doing a bunch of things that sorta kinda look like they intend to get things into compliance sooner or later, that should count as if they were already in compliance.
- Appendix A to the answer is a copy of the 2013-14 District budget, available from the ERCSD web site.
- Appendix B to the answer is a copy of the minutes of the 7/2/2013 Board meeting, also available from the ERCSD web site.
- Appendix C to the answer is a "template of activities involving dance, music and visual arts that will be been (sic) provided to each of the District's elementary school principals," supposedly prepared by Andrea Coddett, Assistant Superintendent for Instruction. (See my Reply, below, for some information on where this document really came from.)
- Verified Reply. Nov. 23, 2013. This is my reply to the District's Answer (above). Aside from shooting down the District's procedural challenges, I also refute the District's claims that they're already in or working toward compliance, and provide evidence that the claims are false. The District claims that art and music are already integrated into the curriculum, but their own curriculum guide shows that this is not true. They also argue that teacher training sessions have been set up, but their own professional development calendar shows that this is not true. And as for that "template" in Appendix C... most of what's there is copied from the North Carolina Department of Public Instruction. That's fine, but the material they copied is in the form of achievement objectives, not activities. In short, the District is not complying with New York Education Law and the Regulations of the Commissioner of Education, and the Commissioner needs to do something about it.
Thank you: A special "thank you" to Laura Barbieri, Esq., from Advocates for Justice, who helped me put together the Reply to the District. She offered several suggestions and came up with some excellent points and approaches that I, as a non-lawyer, had missed completely.
- Verified Supplement to Verified Reply. Dec. 11, 2013. This is a supplement to my Verified Reply (above) to inform the Commissioner about the results of two Freedom of Information Law requests that I filed with the District that they had not yet responded to by the time I had to file the Reply. After Dr. Klein stated in his Affidavit in Opposition to Stay (above) that art and music were "naturally integrated into the curriculum" and that they were "realigning" the curriculum to integrate things even more, a claim later repeated by the District's attorney in its Answer (above), I FOILed the District for any evidence that this was in fact the case. And when the District's attorney claimed in her Affidavit that "several training sessions have been scheduled" for the teachers, I FOILed for evidence of that, too. The result, in a nutshell, is that the District is unable to provide any evidence that either of those claims are true, further demonstrating that they are not complying with the law.
- Memorandum of Law, Dec. 12, 2013. This is the District's memorandum of law (brief), in which they argue in support of their Verified Answer (above) and against my Petition. There's really nothing new here; the brief makes essentially the same arguments as the original Answer did, which I addressed in my Verified Reply (above), although the extra time they had to write this document allowed them to find more precedents to cite. The one interesting tidbit in this document is at the top of Page 6, where they actually describe meetings that are being held to instruct the teachers in how to deliver art and music instruction. Although it's curious that while they mention this here, when I FOILed the District for information about meetings such as those (see Verified Supplement, above), I was told that there was no information responsive to my request. I doubt it means anything, but this document was not written by the same attorney who wrote the other documents. Note: I had an opportunity to file a memorandum of law as well; I chose not to because it was optional and I believe the points are well covered by what I have already filed.
- NYSED Final Decision, July 23, 2015. This is the Commissioner of Education's final ruling on my petition. While the petition was dismissed (i.e., I lost) on technicalities (see the top of this page), the Commissioner was concerned enough by my allegations and the District's response to them that as part of her ruling she directed her Office of Curriculum and Instruction "to provide guidance and technical assistance to the district in order to ensure that it provides instruction in accordance with the Commissioner's regulations." In substance, this is what I asked for in my petition.
Other Information You May Find Interesting
- Appeals to the Commissioner. Information about the 310 Appeal process, including links to sample forms (if you want to file your own), instructions, and the official regulations governing the process.
- New York State Education Law (click on "EDN - Education")
- New York State Codes, Rules and Regulations (click on "Title 8, Education Department")
- Strong East Ramapo, a coalition of East Ramapo alumni and allies, urging the New York State Legislature to pass Assembly Bill 5355 / Senate Bill 3821 for strong state oversight over a district that Monitor Henry Greenberg called "on the brink of collapse."
- The Power of Ten, the organization that vets and sponsors candidates for the ERCSD Board and other activities.
- Advocates for Justice, the law firm that ran the class action civil rights lawsuit against ERCSD.