DOJ Civil Rights Division Bailing Out NYS OCFS Commissioner Gladys Carrion?

Source: The Truth About Prone Restraint

Senator Maziarz Describes NYS OCFS Commissioner as Dangerous

Although NYS Senator Michael Nozzolio is leading the call for NYS OCFS Commissioner Gladys Carrion to resign, "[t]he strongest words arguably came from [NYS Senator] Maziarz, who called Carrion "the most dangerous person in New York State government."  Carrion is accused of deliberately and systematically destroying the juvenile justice system.

Not mentioned in the article, or any other article for that matter, is that Commissioner Carrion has also looked the other way while CPS Investigators conspire with "school officials" to file and determine 'founded' false reports of neglect/abuse, a Class A misdemeanor, against a parent or parents whose child is not in attendance at school for sound and legal reason. A report by the Vera Institute of Justice also failed to address this matter in its report: Getting Teenagers Back to School: Rethinking New York State's Response to Chronic Absence.

Refusal by government officials to look into the practice of CPS Investigators and "school officials" who conspire in the filing and 'founding' of false reports of neglect/abuse, and failure to prosecute all involved, speaks volumes to the "approval" of this illegal practice; it also speaks 'carte blanche'  approval to the illegal and ongoing criminal violence against parents who have the right to the care, education, and upbringing of their children.

In effect, this practice continues to reveal the systemic corruption in New York State.

Read the article in its entirety at auburnpub.com

 

Tell Governor Cuomo ALL Youth Need A Chance

Sign the Petition at Change.org asking Governor Cuomo not to abandon LGBT homeless youth.

'America's Sweetheart' Nominated for 2011 Buffalo Creative Black Tie Awards

"America's Sweetheart', Miss Anita Waistline, is one of five nominees for Best Female Newcomer who were selected by overall community involvement.

Mike Mangus, Miss Anita Waistline

North Tonawanda, New York – ‘America’s Sweetheart’, Miss Anita Waistline, has been nominated for the 2^nd Annual Buffalo Creative Black Tie Awards, a fundraiser for Reign 19 of the Imperial Court of Buffalo.
 

A female illusionist, also known as Mike Mangus, Miss Waistline is extremely happy about the nomination. “I am very excited about the nomination and look forward to the continued support of my fans”, she said.

One of New York’s youngest Drag Queens, she has been performing as a female illusionist for a little over two years in several clubs throughout New York State and Southern Ontario including, Club Marcella, Illusions, Adonia’s, Pure, Sky Bar, and The Embassy in Hamilton. Her creative expression ranges from glamorous to androgynous. She is listed with The Drag Queen Registry (a world-wide directory of Drag Queens),has her sights set on Provincetown, MA and, of course, the 2011 Buffalo Creative Black Tie Awards.

Communities on both sides of the US/Canadian border will be able to continue their support for their favorite nominee by casting ballots that are available at bars in Buffalo, NY, Jamestown, NY, Erie, PA, and in Hamilton and St. Catharines, ON. The cost of the ballot is $1.00, and is available until January 2, 2011.

The event, hosted by Imperial Crown Prince XX, Jeramie Rutland, is scheduled for Sunday, January 9th, 2011 at Club Marcella, located at 622 Main Street, Buffalo NY.

Visit 2011 Buffalo Creative Black Tie Awards for more information.

NY State's Top Judge Oath of Office Questioned

Miriam Snyder

Author of  "Exhibit" Alleges Fraud and Obstruction of Rule of Law by NY State's Top Judge, Jonathan Lippman.


On March 23, 2010, Human Rights Advocate and Survivor, Miriam Snyder, requested certified copies of (among others) New York State Chief Judge Jonathan Lippman's Official Bond and Undertaking and Oath of Office as noticed in this Scribd. "Exhibit: Jonathan Lippman Defraud[s] the US,...".  The request was made pursuant to Public Officers Law, Article 2.  It states, in part: "A judicial officer of the Unified Court System should file his or her oath or affirmation with the New York State Department of State (if he or she is a "state officer") or with the office specified by Public Officers Law Section 10 (if he or she is a "local officer") and, in addition, must file a copy of his or her oath or affirmation with the Office of Court Administration."

According to the "Exhibit" a Certified copy of the Oath of Office as NYS Judge was not produced for Lippman.  An April 1, 2010 response to Snyder's request from Shawn Kerby, Assistant Deputy Counsel for the State of New York Unified Court System, reveals a copy (allegedly non-certified) of the Oath was forwarded to Snyder (See, Scribd. "Exhibit", p 2).

Snyder likens the alleged obstruction of rule of law by Lippman to the continued attempt by New York State Acting Commissioner of Education David Steiner to appoint Cathleen Black, a wealthy media executive, as Chancellor of the New York City school system "...despite her advisory panel denunciation and public education deficiencies.-- ".  To this end, according to Synder, "The education system is criminally emulating the obstruction of the rule of law practices inflicted in the New York State judiciary under the unqualified ruler ship of NYS Chief Judge Jonathan Lippman."

Read more here.

New York District Court Denies Motion To Unseal Documents In Darryl Thompson Case

 In the latest development, the Court has decided on the letter motion, keeping the documents sealed without prejudice.

 Defendants and NYS OCFS are seeking to hide their misconduct from the public by forcing Plaintiff, Anntwanisha Thompson, to file documents "off-the-books" in the matter of Thompson v. Johnson, et al, a civil action filed by Elmer Robert Keach III, who represents the family of Darryl Thompson.

Darryl Thompson, a 15 year old from the Bronx, died in November 2006 after being restrained by two aides at the state-run Tryon Residential Center in Johnstown. An autopsy conducted by Medical Examiner, Dr. Michael Sikirica, ruled Thompson's death a homicide, yet a Fulton County grand jury declined to indict the two aides involved (John P. Johnson and Robert Murphy).

A letter motion, pursuant to the Court's direction, was filed earlier this month by Keach to The Honorable Andrew T. Baker, federal judge for the US District Court for the Northern District of New York to request the unsealing of all documents submitted to the Court. It states, in part, "...the Plaintiff's efforts to learn the truth about her son's death were used against her, in that in order to gain information about how Darryl died, the Plaintiff was forced to agree to a restrictive protective order that required court sealing. The Plaintiff specifically requested that she be provided with an opportunity to revisit the sealing provisions of the order at the appropriate time, and she does so by this letter motion."

Thompson suggests that all documents submitted to the US District Court for the Northern District of New York are judicial documents. To that end, NYS OCFS forcing "off-the-books" litigation not only does not serve the interests of justice, it also precludes the public from being able to access documents upon which the US District Court for the Northern District of New York will make its decisions.

Thompson also requested to take the depositions of Jeffrey Delorme and Robert Hoefs due to the uncertainty amongst the Defendants as to who was present during Thompson's restraint and death. While not Defendants in this action, the depositions of Delorme and Hoefs are said to be "...highly relevant to this litigation..." They are represented by the New York State Attorney General's office, who has refused to allow them to be deposed.

Sources: Keach Letter To The Honorable Andrew T. Baxter, federal judge, US District Court for the Northern District of New York. and (Case 608-cv-01241-DNH-ATB Document 147 filed Nov. 19, 2010)

New York State: The Hypocrisy

Our story is given mention in this Legally Kidnapped: Baby LK Report For Halloween 2010.

It should be noted well that my son, Michael, was never truant or unlawfully detained from school. Michael was under the care of, not one but two, medical professionals who never released their demand for home-instruction.

In New York State it is a Class A Misdemeanor to file a false report with CPS. Principal James V. Fisher and City of North Tonawanda School District Child Associate Rosemary Fox were well-aware of the circumstances surrounding Michael's absence from school, yet they made the false reports to CPS. In effect, they circulated information known to be false and misused a state agency.

In light of all of the facts, several state agencies, including NYS OCFS, refused to let me file charges against North Tonawanda High School Principal James V. Fisher for filing a false report. In fact, NYS OCFS found 'no wrong-doing' by Principal Fisher. Given this, I did not attempt to bring any charges against Rosemary Fox. Ms. Fox filed the second false report the following school year (2006-2007).

Last month NYS OCFS released a 'Policy Brief' prepared by the Vera Institute of Justice.

"What their brief does not begin to explore is false filings of educational neglect charges, and why there are no investigations into this aspect. "

To this end, Chief Judge Honorable Jonathan Lippman, who denied my Motion for Permission for Leave to Appeal to the Court of Appeals at a session of the Court, held at Court of Appeals Hall in the City of Albany on the second day of September, 2010, has recently received "kudos" for his crackdown on  foreclosure practices. It's unfortunate that Judge Lippman does not follow the same procedures in his own Court.

The hypocrisy: "We can't have the process being a fraud," New York State Chief Judge Jonathan Lippman said in announcing the new procedure. "It has to be real and based on credible information."

New York State Woman Finds OCFS Policy Brief Does Not Fully Address The Issues

FOR IMMEDIATE RELEASE
PRLog (Press Release) – Oct 25, 2010 – A North Tonawanda mother who was falsely charged with "educational neglect"  after her gay teen received death threats at North Tonawanda High School in 2005 is perplexed by a recent policy brief released by the New York Office of Child and Family Services.   

"What their brief does not begin to explore is false filings of educational neglect charges, and why there are no investigations into this aspect. " ~ Rhonda Mangus, North Tonawanda , NY

Read more here

Readers may also link to the policy brief from the OCFS and Vera websites: www.ocfs.state.ny.us and www.vera.org.

"Getting Teenagers Back to School: Rethinking New York State's Response to Chronic Absence"

RELEASE: October 25, 2010 -- The New York State Office of Children and Family Services (OCFS) today released “Getting Teenagers Back to School: Rethinking New York State’s Response to Chronic Absence,” a policy brief researched and written for the agency by the Vera Institute of Justice in partnership with Casey Family Programs.   

"What their brief does not begin to explore is false filings of educational neglect charges, and why there are no investigations into this aspect. " ~ Rhonda Mangus, North Tonawanda , NY

Readers may link to the policy brief from the OCFS and Vera websites: www.ocfs.state.ny.us and www.vera.org. 

Chief Judge Jonathan Lippman's Decision Endangers Parental Rights

State of New York Court of Appeals Chief Judge Jonathan Lippman’s decision to deny Appellant’s motion for permission for leave to appeal to the court of appeals endangers parental rights.

The decision leaves in place an illegal and egregious determination of educational neglect by Niagara County Department of Social Services and New York State Office of Children and Family Services. It encourages continued abuse of power, giving ‘carte blanche’ to school authorities and social services agencies who seek to deprive parents of their right to protect their children against hate and violence at school.

New York State Court of Appeals Chief Judge Honorable Jonathan Lippman denied Appellant’s Motion for Permission for Leave to Appeal to the Court of Appeals at a session of the Court, held at Court of Appeals Hall in the City of Albany on the second day of September, 2010. The motion for permission for leave to appeal was pursued after the Supreme Court of the State of New York, Fourth Department, in its decision In the Matter of Rhonda Mangus  against Niagara County Department of Social Services  and  New York State Office of Children and Family Services, denied this writer a Motion for Re-Argument or Leave to Appeal to the Court of Appeals earlier this year.

Chief Judge Lippman’s decision to deny the motion for leave to appeal to the court of appeals presents a classic example of distorted conception of the facts and of the law upon all papers submitted thereon.

Assistant  Solicitor General Zainab Chaudhry, of Counsel for Andrew M. Cuomo, current Attorney General of the State of New York, admits in her Memorandum In  Opposition To Motion For Leave To Appeal (p 3) that, “Motions seeking such error correction rarely warrant leave by this Court.” Chaudhry goes on to say, “Further, the Appellate Division properly applied those legal principles to the facts of this case and found that substantial evidence in the record supported OCFS’ determination.”

However, a fair contextual reading of this case compels a contrary conclusion. The facts of this case show that substantial evidence in the record did not support Niagara County Department of Social Services caseworker Robin Stroud’s determination, nor NYS OCFS’ final determination. Respondents, in fact, failed to prove that Appellant committed maltreatment under Social Services Law Section 422 and 97-LCM-58. Appellant’s son was never truant or unlawfully detained from school, the two categories of unexcused absences in New York State Education Law, and Appellant’s son was under the care of medical professionals who did not release their demand for home-instruction.

The apparent rationale of the Courts is that Respondents’ need not comply with Social Services Law Section 422, 97-LCM-58, or due process rights when addressing matters of alleged child neglect. It presents clear error and plain injustice that, again, will encourage continued abuse of power, and give ‘carte blanche’ to school authorities and social services agencies who seek to deprive parents of their right to protect their children against hate and violence at school.

Further, Judge Lippman’s decision seriously undermines the efficacy of the laws in any related, pending or future litigation, the rights of parents to the care, education, and upbringing of their children, the authority of medical professional opinion and/or plan of care for its pediatric patents, and parent rights to due process before the law.

Ref. Court of Appeals Motion No. 2010-674, Appellate Division Docket No.: TP09-01245, Niagara County Index No. 136504

Author’s Note: I am not a lawyer and nothing contained herein or elsewhere on this website should be construed as legal advice. 

It should also be noted well here that the Appellate Division, Fourth Department Decision related to whether or not Appellant’s due process rights were violated is also grossly misrepresented in its entirety. The question before the Court was:

Whether the Administrative Law Judge violated the Appellant’s due process rights when [she] failed to advise and obtain, on the record, an intelligent or understanding waiver of the Appellant right to be afforded the opportunity of Counsel?

Clearly, the question has nothing to do with Appellant seeking assigned counsel.

Celebrate National Parents' Day

Celebrate National Parents' Day Sunday, July 25, 2010. US Code Section 135 recognizes Parents' Day. Celebrated the 4th Sunday of July each year — All private citizens, organizations, and Federal, State, and local governmental and legislative entities are encouraged to recognize Parents’ Day through proclamations, activities, and educational efforts in furtherance of recognizing, uplifting, and supporting the role of parents in bringing up their children. 
 

In Mangus case in NY, GLSEN may have much informing material | The News is NowPublic.com

In Mangus case in NY, GLSEN may have much informing material | The News is NowPublic.com

New York State Supreme Court Decision Speaks Loudly On 'System of Justice': Mangus against Niagara County Department of Social Services, et al

The least-noticed cases sometimes say the most about the institution and our system of justice. They can also say the most about the rights of a mother to the care, education, and upbringing of her children, and the opinions of medical professionals, whose primary concern is that of the safety, health and welfare of children in education.

Last month, a ruling on a little-noticed NYS Supreme Court case represents a shameful chapter in NYS Supreme Court history that could have wide-ranging implications for mothers and medical professionals whose primary concern is that of the safety, health, and welfare of the child in education.

With no mainstream media attention, the Supreme Court of the State of New York, Appellate Division, Fourth Department, in its decision In the Matter of RHONDA MANGUS against NIAGARA COUNTY DEPARTMENT OF SOCIAL SERVICES and NEW YORK STATE OFFICE OF CHILD & FAMILY SERVICES, denied this Author the relief requested in an Article 78 Proceeding. 

It is unclear at this point why Justices Robert G. Hurlbutt, J.P., Nancy E. Smith, Eugene M. Fahey, and Edward D. Carni unanimously ignored the QUESTIONS PRESENTED by the Law Offices of Anthony S. Pecoraro in its Brief on behalf of this Author:

“ (1) Did Petitioner establish that the Appellant committed the alleged maltreatment, by a fair preponderance of the evidence pursuant to New York State Social Services Law Section 422? Answer: No 

(2) Whether the Administrative Law Judge violated the Appellant’s Due Process Rights when they failed to advise and obtain, on the record, an intelligent or understanding waiver of the Appellant right to be afforded the opportunity of counsel? Answer: Yes”

What is clear in its Decision, Justices' Hurlbutt, Smith, Fahey, and Carni unanimously and completely not only ignore the QUESTIONS PRESENTED, they also ignore SUPPORTING EVIDENCE that establishes there is no basis for an indicated report of ‘Educational Neglect’ against this Author, including SUPPORTING EVIDENCE “…that there was, not one but two, doctor’s orders to keep the child out of school.” The record is complete with medical references to keep the child from attending school.”  Appellant’s Exhibit 3 and 4. “At no time was the child kept out of school by the Appellant where there was no doctor’s directive or instruction to do so. Simply, there is no evidence introduced by NDSS that either Doctor removed their demand for home schooling and cleared or certified the child to return to school.”

In this case, SUPPORTING EVIDENCE clearly establishes that this mother did not maltreat her child. Yet, the Justices effectively construct a Memorandum and Order that portrays, erroneously, “…that respondent’s determination that respondent Niagara County Department of Social Services established by a fair preponderance of the evidence at the fair hearing that petitioner maltreated the subject child is supported by substantial evidence.”

The Justices’ refusal to acknowledge the QUESTIONS and SUPPORTING EVIDENCE in its final Decision speaks loudly of the system of justice in the Supreme Court of the State of New York.  This Author however will not be deterred by this 'set-back' in her endeavors to expose the truths of the 'system of justice' in New York State. 

Read:

The Court's Decision, here.

NYS OCFS/NYSED Model Policy on Educational Neglect (2/2008)

NYS Senator Montgomery's Bill Number S5974 - An act to amend the social services law in relation to reports of educational neglect by school districts (6/2009)

Author’s Note: Andrew M. Cuomo, Attorney General of the State of New York, for Respondent’s New York State Office of Child and Family Services; Andrew D. Bing, Deputy Solicitor General and Zainab A. Chaudhry Assistant Solicitor General, of counsel; Jean Greinert, Administrative Law Judge; Richard E. Davidson, Bureau of Special Hearings NYS OCFS; Caseworker Robin Stroud, Niagara County Department of Social Services, North Tonawanda, NY; and Thomas W. Scirto, attorney for Niagara County Department of Social Services; Laura Wagner, of Counsel.

 

North Tonawanda School District Officials, ERIE 1 BOCES Labor Relations Manager Perpetrate Fraud, Malice, Misuse of Federal Proceeding

Note to Readers: It is recommended that, at the very least, post entry dated March 23, 2008, ERIE 1 BOCES "Employee" Colleen A. Sloan, Esq. Designated FERPA Hearing Officer be reviewed prior to reading this post.

The Standards: Public Integrity, Rule of Reason, Family Education Right to Privacy Act (FERPA); Amendment of Education Records C.F.R. 34 Sections 99.20, 99.21 and 99.22 of FERPA Regulations, New York State Education Department Commissioner's Rules & Regulations Truant and/or Unlawfully Detained (the two categories of unexcused absence in New York State), and North Tonawanda City School District Attendance Policy, North Tonawanda High School "Agenda" (2005-2006, p 7-11).

The Truths: Principal James V. Fisher, among other matters, egregiously and with intent to perpetrate fraud and malice, violated New York State Education Law when he issued a directive to Michael's Grade 9 teachers to deny me access to Michael's coursework for a period of 34 days, beginning October 13, 2005 through and including December 2, 2005.

At the time of the FERPA Records Amendment Hearing, City of North Tonawanda School District Superintendent Dr. John George (retired), Andrew J Freedman, Esq. (CNTSD School Board Attorney), and FERPA Hearing Officer Colleen A. Sloan, Esq. were aware that North Tonawanda High School Principal James V. Fisher's false report of Educational Neglect to New York State Office of Children and Family Services was determined "Unfounded" by Niagara County Department of Social Services. Therefore, City of North Tonawanda School District failed IN FACT to prove Michael TRUANT or UNLAWFULLY DETAINED from school; the two categories of unexcused absence in New York State Education Law, and the category by which City of North Tonawanda High School Principal James V. Fisher repeatedly directed Michael's absence from school be recorded as "unexcused", and the category by which Principal Fisher issued a directive to Michael's Grade 9 teachers to deny me access to Michael's coursework.

Each school official was also clearly aware that FERPA Hearing Officer Colleen A. Sloan, Esq. is required by law to render her DECISION consistent with New York State Education law.

Ms. Sloan instead makes every effort to forge a DECISION that attempts to conceal the fact that the City of North Tonawanda School District egregiously and illegally denied Michael his RIGHT TO EQUAL ACCESS TO EDUCATION, effectively denying Michael access to all coursework for the period mentioned and repeating Michael to Grade 9. Ms. Sloan in fact further perpetrates fraud, malices and misuse of a federal agency proceeding by mis-representing and/or omitting stated objections to the Hearing, and by further alleging testimony that never occurred from me, or Principal James V. Fisher related to home/hospital instruction. Ms. Sloan made every effort to join home/hospital instruction to the record in question with knowledge that home/hospital instruction services to Michael had no rational relationship to the attendance record in question.

"...Hearing Officer's
DECISION

In February 2006, Rhonda J. Mangus, mother of Michael A. Mangus (DOB [omitted]), requested that the North Tonawanda City School District ("District") amend certain education records of her son maintained by the District, including his attendance records. 1 James V. Fisher, Principal of North Tonawanda High School, sent Ms. Mangus a letter in which he, in effect, denied Ms. Mangus' request. 2 Ms. Mangus then requested that the District provide a hearing under the Family Educational Rights and Privacy Act ("FERPA") regarding her request for amendment of her son's attendance records. 3

I was designated by the District to serve as the hearing officer in this matter. 4 The hearing was held on March 21, 2006, beginning at approximately 9:40 a.m. in the Superintendent's Conference Room, 175 Humphrey Street, North Tonawanda, New York.

The Hearing was held in accordance with 20 USC 1232g(a)(2) and 34 CFR [Sections] 99.20 through 99.22, along with applicable Board of Education Policy and Administrative Regulations. 5 Ms. Mangus was given the opportunity to be represented at the amendment hearing by individual(s) of her choice, and she was accompanied by her attorney, James E. Rolls, Esq. Ms. Mangus was given a full and fair opportunity at the hearing to present relevant evidence. The District was represented by its school attorney, Andrew J. Freedman, Esq. Principal Fisher also appeared at the hearing.

The following represents my decision as hearing officer, along with a summary of the evidence presented at the hearing and the reasons for my decision.

PRELIMINARY MATTERS

At the outset of the hearing, Ms. Mangus objected to the hearing going forward, and also objected to my serving as hearing officer on the basis that I had been selected by the District's Superintendent of Schools. Although Ms. Mangus then indicated that she wished the hearing to proceed as scheduled, I did consider her objection to my serving as hearing officer.

FERPA itself establishes only minimal requirements for the conduct of a records amendment hearing. The federal regulations implementing FERPA at 34 CFR 99.22(c) state that an amendment hearing "may be conducted by an individual, including an official of the educational agency...who does not have a direct interest in the outcome of the hearing."6 The regulations allow, and the legislative history of FERPA supports, that even a school's own employees can under most circumstances conduct a record amendment hearing (including, presumably, the Superintendent).7 According to the Family Policy Compliance Office ("FPCO"), which administers FERPA and its implementing regulations, "districts should have some flexibility in conducting these hearings consistent with a rule of reason." FPCO has stated that "a rule of reason approach suggests that the deciding official...must be someone who does not have a personal or professional interest that would conflict with his or her objectivity in the hearing. Reason suggests that ordinarily a school or agency would not assign as a hearing officer either the individual who determined not to amend education records or someone who is in direct reporting or close collegial relationship with that individual."8

There was no evidence presented at the hearing that the Superintendent himself was specifically involved in the determination not to amend Michael's records. If, under FERPA, he could have conducted the hearing himself, then there is no reason he could not designate an outside party to do so without somehow influencing that person's decision. I am not an employee of the District; as such I am not in direct reporting or close collegial relationship with the Superintendent or with Mr. Fisher, the individual who did make the determination not to amend the records. I was not involved in Mr. Fisher's determination. There was no evidence presented at the hearing upon which to conclude that I have a personal or professional interest in the final outcome of the hearing, or that I could not be objective. Therefore, I did not recuse myself as hearing officer.

RECORDS SUBJECT TO CHALLENGE

In accordance with FERPA, a parent or eligible student has the right to request a hearing to challenge the content of the student's education records on the grounds that the information contained in the records is inaccurate, misleading, or in violation of the privacy rights of the student.

At the hearing, Mr. Rolls objected to Michael's attendance records maintained by the District to the extent any of the records indicate that Michael was absent without excuse from the period beginning October 13, 2005 through and including December 2, 2005. For example, Michael's Student Progress Report for the second marking period ending January 20, 2006 indicated a total of 34 instances of "unexcused" absence for that period.9 A "Student Absence Summary" prepared from District computerized records on March 2, 2006 confirmed that Michael was marked absent 34 times from October 13, 2005 through December 2, 2005, and that each of those absences was recorded by the District as "unexcused."10

According to Mr. Rolls, Ms. Mangus does not dispute the that her son was in fact absent on each of the above dates. However, Mr. Rolls indicated that the basis for Ms. Mangus' objection to the attendance records is that all of those absences should have been recorded as excused absences.

According to Mr. Freedman, Michael's absences on the above dates were properly designated and recorded by the District as "unexcused," in accordance with District policy and regulations which specify those absences the District regards as "excused" and "unexcused."

SUMMARY OF THE EVIDENCE

The evidence at the hearing established that District's Board of Education has determined that the absences will be considered "excused" or "unexcused" according to the following:11

Excused: An absence, tardiness or early departure may be excused if due to personal illness, illness or death in the family, impassable roads due to inclement weather, religious observance, quarantine, required court appearances, attendance at health clinics, approved college visits, approved cooperative work programs, military obligations, road test, school field trip, take your child to work or other such reasons as may be approved by the Board of Education.

Unexcused: An absence, tardiness or early departure is considered unexcused if the reason for the lack of attendance does not fall into the above categories (e.g., family vacation, hunting, babysitting, hair cut, obtaining learner's permit, oversleeping).

Students at the High School are further informed via the Student Handbook that the following will be considered "legitimate excused absences" from school:12

Court appearance
Illness (medical appointments)
Family death
Education
Religious observance
Local impassable roads

The evidence at the hearing established that students receiving approved home instruction are considered by the District to be "in attendance."13

According to Ms. Mangus, her son received a written death threat on October 12, 2005. As a result, she immediately took her son out of school, informed the school that he would not return until the matter was investigated to her satisfaction, and requested that his teachers send work home for him.14. Ms. Mangus stated that she requested home instruction for her son, and Mr. Fisher told her she needed to bring in a doctor's note. She stated that at first she told Mr. Fisher that she would not get a doctor's note; that her son's absences were due to the circumstances surrounding the threat he received. However, according to Ms. Mangus, Michael ultimately was diagnosed by his doctor as depressed. Michael's pediatrician sent a letter to the District dated November 21, 2005, indicating his belief that Michael was depressed and as such should be afforded home instruction.15 Ms. Mangus stated that Mr. Fisher requested that she then complete an additional form in order to receive home instruction. According to Ms. Mangus, she provided the completed form to the District as requested. Michael has received home instruction since December 5, 2005. Ms. Mangus stated that this situation with her son was an extraordinary circumstance, and as such the records of Michael's attendance should reflect all of his absences from October 13, 2005 through December 2, 2005 as "excused." Mr. Rolls stated that the examples of what is considered "unexcused" absence in District Policy (i.e., vacation, haircut, etc.) include "nothing remotely reflecting was was going on here," and "if any [absence] deserves to be excused, this does."

Referring to District Policy and the Student Handbook, Mr. Freedman reiterated that only certain types of absences are considered "excused" by the District. Mr. Freedman stated that whenever a student is absent, parents are required to submit a legitimate written excuse for the absence; if no such excuse is provided, the absence is considered unexcused. Mr. Freedman indicated that Ms. Mangus never provided documentation to the District that would have placed Michael's absences during the period in question into one of the categories of absences considered "excused" by the District. Mr. Freedman stated that during this time Ms. Mangus voluntarily chose to remove her son from school and keep him home, based on her perception that school was an unsafe environment for her son. According to Mr. Freedman, the District never suspended Michael or indicated that he could not return to school following the alleged threat. In fact, the District took steps to compel Michael's attendance.

Mr. Fisher confirmed that on October 12, 2005, Ms. Mangus came to him and informed him that Michael had received an anonymous death threat in his agenda planner, and that she was taking him home. Mr. Fisher stated that given the circumstances, he did not object to Michael leaving school on that day. Mr. Fisher outlined the steps he followed to respond to Ms. Mangus' request for home instruction, including the District's requirement that certain documentation be completed (including information as to the treating psychologist/psychiatrist) whenever the request for home instruction is based on a diagnosis of depression.16

Mr. Freedman stated that it was not until December 5, 2005 that Ms. Mangus provided the above documentation as requested by Mr. Fisher, but as soon as she did, "the categorization of Michael's absences changed."

District records indicate that Michael was in fact on "home teaching" as of December 5, 2005; his absences were no longer recorded as "unexcused."

FINDINGS OF FACT

Based soley on the above evidence presented at the March 21, 2006 hearing, I find that Michael Mangus' attendance records, specifically those that indicate that he was absent a total of 34 times without excuse from the period from October 13, 2005 through and including December 2, 2005, are not inaccurate, misleading or otherwise an invasion of the student's right of privacy.17

According to FPCO, the right of a parent or eligible student to challenge information in education records is not unlimited. A school is not required by FERPA to afford a parent the right to seek to change substantive decisions made by school officials, as opposed to ministerial or computational errors. See, e.g., Tarka v. Cunningham, 917 F.2d 890 (5th Cir. 1990), where the court denied a student's challenge to a grade under FERPA, stating that "students' grades as reflected in educational records can only be inaccurate or misleading if they do not reflect what the grader intended or if they are mathematically incorrect."

Case law and administrative decisions construing FERPA suggest that in order for a record to be deemed "inaccurate" or "misleading," it must be found to be "incorrect" at the time it was written, or, it must be found that because of an omission, or the means of expression, the content of the record casts the student in a false light or gives an erroneous impression. Compare, e.g., Carter v. Orleans Parish Public Schools, 555 IDELR 419 (5th Cir. 1984), where the parent successfully sought expungement of record that identified his children as mentally impaired when in fact they were not; with Nenana City Public Schools, 18 IDELR 489 (SEA AK 1991), where review officer denied parent's request to remove an IEP from her son's file that reflected services that had been subsequently changed, as the IEP was appropriate when it was written.

Here, Ms. Mangus does not assert that Michael's record of attendance is inaccurate or misleading because he was absent a lesser or higher number of days than actually recorded, or that he was absent on different days [than] actually recorded, or that he was not absent at all. Ms. Mangus asserts that Michael's record is inaccurate or misleading based on the perceived circumstances surrounding the threat against him, his medical condition, or both, the District would have more accurately determined and recorded each of Michael's absences as excused instead of unexcused.

Regarding absences related to a medical condition, the evidence at the hearing established that Ms. Mangus did not initially claim that Michael was being kept out of school because of any medical condition. The evidence established that she initially informed the District, both in writing and by telephone, that she was keeping her son out of school because of the threat made against him. Although she later provided the District with a letter from Michael's pediatrician stating his belief that Michael was depressed, she did not provide the District with specific information regarding Michael's diagnosis and treatment in accordance with its procedures for requesting home/hospital instruction for his condition, until on or about December 5, 2005. The evidence clearly established that once that information was received, the District immediately began providing Michael with home instruction, and his records accurately reflect his status as "in attendance" from that date forward. Therefore, I cannot find that Michael's attendance from October 13, 2005 through December 5, 2005 is inaccurate or misleading based on his medical condition.

Regarding absences based on perceived circumstances surrounding the threat against Michael, Ms. Mangus' attorney conceded that this may have been her personal choice. The evidence clearly established that such circumstances were not specifically included in the District's definition or list of examples of "excused" absences. Ms. Mangus basically argues, however, that the District made the wrong decision when it decided that her son's absences do not "go with" those other types of absences specifically considered excused.

There is no question in my mind that deciding to characterize Michael's absences based on perceived circumstances surrounding the threat against him as "unexcused" versus "excused" was a substantive decision by the District. There is no right to challenge such substantive decisions under FERPA.

CONCLUSION

The FERPA regulations provide that if, as a result of an amendment hearing, it is determined that the challenged information in the education is not inaccurate, misleading or otherwise in violation of the privacy rights of the student, the district shall inform the parent of the right to place a statement in the record commenting on the contested information in the record or stating why he or she disagrees with the decision, or both. If the district places such a statement in the student's education records, the district must maintain the statement with the contested part of the record for as long as the record is maintained, and, disclose the statement whenever it discloses the portion of the record to which the statement relates.18

I recommend that the District inform Ms. Mangus of the above right.

Dated: April 21, 2006

s/Colleen A. Sloan
Colleen A. Sloan, Esq.
ERIE 1 BOCES Labor Relations Services
Hearing Officer"

Please Note: I have not yet placed a statement in Michael's record. I did forward correspondence to Ms. Sloan regarding her Decision, which will appear in the next post. The exhibits referenced here will be posted at a later time.