Matter of V.A. and Amber Charter School - Kingsbridge

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V****** A****** (“complainant”), the parent of a student who attended Amber Charter School Kingsbridge (“Amber” or “the school”), filed a complaint regarding the school’s decision to retain the student in kindergarten for the 2018-2019 school year.  The complaint must be sustained to the extent indicated.

Education Law § 2855 (4) provides that any individual or group may bring to a charter school’s board of trustees a complaint which alleges a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  Thereafter, if the complainant determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, he or she may present that complaint to the Board of Regents (“Regents”), which shall investigate, respond, and issue appropriate remedial orders.  Section 3.16 of the Rules of the Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and to issue appropriate remedial orders.

The record indicates that the student attended kindergarten at Amber during the 2017-2018 school year.  After receiving notice that the student would be retained in kindergarten for the 2018-2019 school year, complainant submitted a complaint under Education Law § 2855 (4) to the school.  When complainant did not receive a final decision from the school’s board of trustees (“Board”), she submitted her complaint to the Board of Trustees of the State University of New York (“SUNY”), the school’s authorizer.  SUNY dismissed the complaint, determining that complainant had not provided any evidence of violations by the school of the law or its charter.  SUNY also noted that the decision to promote or retain a student rested with the school unless such “retention would violate policy or is based on invidious discrimination,” circumstances which SUNY determined were not present.  SUNY further concluded that the issue was moot because complainant had since removed the student from the school.  This appeal to the Regents ensued.

Complainant raises two primary concerns.  First, complainant alleges that, although Amber was aware that her son was struggling academically and at risk of being retained, the school failed to offer certain a service called “Saturday Academy” identified in the parent handbook.  Second, complainant complains about the school’s failure to issue a formal decision regarding the complaint she submitted.  Complainant seeks that Amber “update [its] parent handbook to reflect the actual services they offer to students ....”

Initially, I disagree with SUNY that complainant failed to allege a violation of the school’s charter or the law.  In her complaint to SUNY, complainant specifically described the school’s failure to provide a service called “Saturday Academy,” along with other academic services, to the student prior to its determination to retain him in kindergarten.  Complainant also requested that the school modify its handbook to accurately reflect the services which it offered.  It is complainant’s contention that, at the time she filed the complaint, the school did not offer all of the services it lists within the handbook.  Although complainant referred to the school’s handbook when identifying the school’s alleged violations, the services outlined therein reflect academic interventions that, in turn, directly relate to obligations specified in the school’s charter.  Therefore, I find that complainant’s allegation that the school failed to provide such services sufficiently alleged a violation of the school’s charter.

However, there is no basis in the record to disturb SUNY’s determination that the school acted within its discretion by retaining the student in kindergarten.  A charter school’s board, pursuant to its charter agreement with its authorizer, has discretion to place students in particular classes.  This discretion is analogous to that afforded to public school districts, which may assign students to particular classes or grades unless such placement is illegal, arbitrary, or capricious (Appeal of M.F. and T.L., 44 Ed Dept Rep 467, Decision No. 15,234; Appeal of a Student with a Disability, 41 id. 259, Decision No. 14,680).  Although complainant disagrees with the school’s ultimate determination, there is no evidence that its decision was illegal, arbitrary, or capricious.

Petitioner further complains that the school advertised, but did not actually offer, a program called “Saturday Academy.”  The record supports this contention.  However, in 2018, the school revised its parent handbook to remove references to Saturday Academy and other services and supports that it did not actually offer.  Given these actions, petitioner has received all of the relief which she sought—i.e. that Amber “update [its] parent handbook to reflect the actual services they offer to students ....” 

Nevertheless, it is unclear whether SUNY approved of these revisions to the programmatic aspects of the school, which, as noted above, are outlined in the school’s charter.  To the extent it has not already done so, the school must obtain approval from its authorizer to make the proposed changes to the program and, if approved, must also ensure that all references to Saturday Academy or other services not actually offered are removed from school documents, publications, and the school’s website.

Finally, the record supports complainant’s allegation that the school failed to issue a decision resolving the complaint in a timely manner.  SUNY has previously informed the Department that its schools are generally expected to respond to complaints within 45 days.  This is reflected in SUNY’s “Guidelines for Complaint Policies and Procedures.”[1]  In addition, Amber’s own complaint policy requires a written response to the complainant within 30 days of receipt.  The school explained, in connection with the instant appeal, that it did not realize complainant’s submission was a “formal” complaint because complainant did not request a hearing.  However, at the time of the complaint’s filing, this condition was not included in the school’s complaint policy.[2]  I admonish the school to respond to all complaints within the timelines set forth in its authorizer-approved complaint policy as well as the general policy of SUNY.        

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, if not previously obtained, Amber Charter School Kingsbridge must obtain approval from its authorizer to change those educational programs and services outlined in its charter which it is not currently offering.  If the change is approved by its authorizer as set forth above, the school must ensure that all references to Saturday Academy and other services not actually offered are removed from school documents, publications, and the school’s website.  If authorizer approval is not forthcoming, the school must provide said program and services.

IN WITNESS WHEREOF, I, Betty A. Rosa, Commissioner of Education of the State of New York for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this       day of                                  2021.

Commissioner of Education