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Bethlehem Area School Dist. v. Zhou

July 24, 2009

BETHLEHEM AREA SCHOOL DISTRICT, PETITIONER
v.
DIANE ZHOU, RESPONDENT



The opinion of the court was delivered by: Senior Judge Kelley

Submitted: June 12, 2009

BEFORE: HONORABLE DAN PELLEGRINI, Judge, HONORABLE JOHNNY J. BUTLER, Judge, HONORABLE JAMES R. KELLEY, Senior Judge.

OPINION

Bethlehem Area School District (District) appeals from an order of the Special Education Due Process Appeals Review Panel (Appeals Panel) ordering the District to produce a transcript of proceedings translated into Mandarin Chinese for the benefit of Diane Zhou (Zhou), pro se Respondent herein. We reverse.

Zhou is the parent of M.Z., who is eligible for, inter alia, gifted educational services as a student of the District. On May 8, 2008, Zhou initiated a challenge to the appropriateness of the gifted services being provided to her child by requesting a due process hearing from the Pennsylvania Department of Education (Department), Office of Dispute Resolution (ODR). Thereafter, a hearing was held before ODR Hearing Officer William Culleton, Jr. Following Zhou's request, and pursuant to the Hearing Officer's apparent reliance upon the Special Education Dispute Resolution Manual (July 2005 ed.)*fn1 published by ODR (the ODR Manual), an interpreter was provided during the entirety of the hearing proceedings to assist Zhou, whose native language is Mandarin Chinese.

Following three days of hearings, Hearing Officer Culleton found in favor of the District.*fn2 Sua sponte, Hearing Officer Culleton requested that his forthcoming written order and opinion be translated into Mandarin Chinese for Zhou's benefit, and the District complied therewith.

By various emails dated October 31, 2008, through December 1, 2008, Zhou requested that ODR provide to her a copy of the transcripts of proceedings before the Hearing Officer translated into her native Mandarin Chinese. O.R. at Item 9. ODR informed Zhou that it was not responsible for any translation of the transcript, but that the District did have that responsibility.

Reproduced Record (R.R.) at 239a, 245a. The District subsequently also declined Zhou's request, and on November 14, 2008, filed a Motion to Deny Parent's Request for Translation of Hearing Transcript with the Appeals Panel.*fn3 Without any proceedings on the District's Motion and/or Zhou's translation request, the Appeals Panel issued an order dated December 9, 2008, granting Zhou's request, requiring the District to provide a translated transcript of the proceedings, and granting Zhou an extension of time within which to file exceptions to the Hearing Officer's decision dependent upon the date on which Zhou received the translated transcript. The District now appeals.*fn4

This Court's scope of review of an order of the Appeals Panel is limited to determining whether constitutional rights were violated, whether an error of law was committed, or whether the necessary findings of fact are supported by substantial evidence. E.N. v. M. School District, 928 A.2d 453 (Pa. Cmwlth. 2007), petition for allowance of appeal denied, 596 Pa. 748, 946 A.2d 689 (2008).

The District presents three issues: 1.) Whether the District is required by law to provide the translated transcript at issue herein; 2.) Whether the Appeals Panel is vested with the authority to order the District to provide the translated transcript, and; 3.) Whether Zhou submitted a timely and proper request for the translated transcript.

We first address the issue of whether any authority exists requiring the provision of a translated transcript to Zhou. No such authority exists, under Pennsylvania or Federal law.

The constitutionally protected rights afforded by due process, which apply to administrative proceedings such as the one sub judice, includes the right to be heard which, in certain circumstances, include the right to assistance from an interpreter during the proceedings itself. See generally, Commonwealth v. Pana, 469 Pa. 43, 364 A.2d 895 (1976); Gonzalez v. Unemployment Compensation Board of Review, 395 A.2d 292 (Pa. Cmwlth. 1978); see also, generally, U. S. eX rel. Negron v. State of N. Y., 434 F.2d 386 (2nd Cir. 1970). Under Pennsylvania and Federal statutes, the provision of interpretive services applies only to administrative or other proceedings, but not to the provision of translated transcripts thereof.*fn5 See Section 563 of the Administrative Agency Law, 2 Pa.C.S. §563 (authorizing the appointment of interpretive services during administrative proceedings by the presiding officer); 28 U.S.C. §1827 (authorizing the appointment of an interpreter by a presiding judicial officer upon determination of need therefor). However, no authority exists extending the qualified right to interpretive services during administrative or judicial proceedings to the provision of translated transcripts of those proceedings upon their completion.

Further, parties generally have no right to have transcripts -- whether translated, or in English -- provided to them at no cost. The sole exception to this rule exists under certain circumstances where a party has been determined to be indigent. See Griffin v. Illinois, 351 U.S. 12 (1956). In the instant matter, Zhou has not been determined to be indigent, and has made no request for such a determination, and therefore the sole exception to this general rule is inapplicable herein.

In summation, there is no Federal or Pennsylvania Constitutional, statutory, or regulatory authority for the provision of a free transcript -- translated or otherwise - of an ...


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