Frequently Asked Questions Concerning Appeals to the Commissioner of Education

1. How do I bring an appeal?

Education Law ยง310 and the Regulations of the Commissioner of Education at 8 NYCRR Part 275 et seq. (the "regulations") govern the practice to be followed in commencing an appeal. See also Instructions and Forms for Filing an Appeal. If you have questions that are not answered by this website, you may call (518)474-6400.

2. Are appeals involving homeless children and youth governed by Parts 275 and 276 of the Commissioner’s regulations?

Certain sections of Parts 275 and 276 of the Commissioner’s regulations contain special provisions and forms for appeals involving homeless children and youth.  This website provides a summary of these provisions and forms which can be printed and completed, as well as information on the role of the local educational agency liaison for homeless children and youth in processing appeals (Appeals to the Commissioner Involving Homeless Children and Youth).  Where the regulations do not provide specific provisions for appeals involving homeless children and youth, petitioners should follow the general instructions for appeals brought pursuant to Education Law § 310.

3. Are appeals involving New York City charter school location/co-location and building usage plans governed by Parts 275 and 276 of the Commissioner’s regulations?

Certain sections of Parts 275 and 276 of the Commissioner’s regulations contain special provisions and forms for appeals involving New York City charter school location/co-location and building usage plans.  This website provides a summary of these provisions, additional questions and answers, and the specific Notice of Petition form required in these appeals. (Appeals involving New York City charter school location/co-location and building usage plans).  Where the regulations do not provide specific provisions for appeals involving New York City charter school location/co-location and building usage plans, petitioners should follow the general instructions for appeals brought pursuant to Education Law § 310.

4. Can I bring a lawsuit in court if I have a grievance against a school district, or must I first appeal to the Commissioner?

In most cases, with certain limited exceptions (e.g. school election disputes, §306 removal proceedings), you have the choice of commencing a proceeding in court rather than an appeal to the Commissioner.

5. Do I need to hire a lawyer to bring an appeal?

No. However, there are advantages to representation by a lawyer. The appeal process is a legal proceeding which raises legal questions that may best be understood and addressed with the help of an attorney.

6. Is there a time limit on when I can bring an appeal?

Yes. You must serve your papers (see the regulations referenced above for rules on proper service) no more than thirty (30) days after the action you are challenging has taken place. For example, if you are challenging a decision by the board of education to suspend your child, you must bring your petition within 30 days of the board's final determination to suspend. Appeals brought more than 30 days later will generally be dismissed by the Commissioner.

7. Does the Commissioner ever allow a late appeal?

The rules on timing are very strict. In thousands of decisions issued over the years, the Commissioner has rarely excused lateness. The fact that a petitioner did not know of the availability of the appeal process or did not understand it is not a legal excuse for bringing a late petition. Nor is illness or inability to obtain the documents necessary to begin an appeal. Finally, continued discussions or efforts to resolve the dispute between a petitioner and a school district do not extend the time for bringing an appeal. A petitioner attempting to bring an appeal beyond the 30-day time period must state the reasons for his or her failure in the petition.

8. What do I have to prove to prevail in an appeal and obtain the relief I requested from the Commissioner?

The burden of proving a case is on you as the petitioner. You must show through documentary evidence, pleadings that are verified (sworn to as correct and accurate) and affidavits that you have been directly injured by the district's action. You must show that the respondent (usually the school district) either (1) violated a statute or regulation; or (2) acted arbitrarily and capriciously.

9. How do I show that a district acted arbitrarily and capriciously?

To demonstrate arbitrary or capricious actions, a petitioner must prove that the actions of the district were wholly without a rational or reasonable basis. It is not enough to show that the district could have made a better or different determination, or that you as a petitioner disagreed with the action or determination that you are challenging. You must instead show that the district's action has no rational, reasonable support or explanation.

10. Will the Commissioner reverse a district's decision/action and grant my petition if he believes the district could have acted differently?

No. The Commissioner gives great deference to decisions by local officials. Even if the Commissioner would have decided the matter differently himself, he will not substitute the district's judgment with his own unless, after a review of the entire record, he can find no rational, reasonable basis for the district's actions.

11. If respondent does not submit a verified answer, is my appeal automatically granted?

No. If a respondent fails to answer, the statements in the petition are deemed to be true. The statements and evidence, however, must still establish that the petitioner is legally entitled to the requested relief.

12. What will the Commissioner consider in making a determination?

The Commissioner will consider only documents that are properly submitted as part of the record before him (i.e., verified pleadings, affidavits, or reports or records of the State Education Department). The Commissioner will not consider facts that are outside of the record (i.e., information provided by telephone calls to the Department, copies of newspaper articles, or oral statements not made part of the record by affidavit).

13. Is there any way to anticipate how the Commissioner will decide my petition?

The Commissioner's decisions are based upon law. The law is set forth in statutes and regulations, and interpretations of law are reflected in previous Commissioner's decisions. Petitioners are encouraged to review these decisions, which give guidance on how the Commissioner might rule in a similar case based on similar facts. For example, the decisions show that the Commissioner rarely, if ever, reverses a district's determination on: the placement of a bus stop; the configuration of attendance zones; the calculation of a student grade; or the denial of a transportation request. See also question numbers 8 and 9 above. The decisions of the Commissioner of Education from April 1958 through June 2010 are officially reported and indexed in Education Department Reports, Volumes 1-49, which may be available in your local library. Unedited and unindexed decisions from July 1991 to date are available on this web site at Decisions of the Commissioner of Education.

14. Are there some grievances that the Commissioner will not decide?

Yes, the Commissioner will not decide certain disputes. For example, the Commissioner has no authority to decide alleged violations of the Open Meetings Law or Freedom of Information Law. Thus, the Commissioner will not decide claims that a school district failed to hold an open meeting or wrongfully refused a request for documents. Such claims must instead be brought before a court. Moreover, the Commissioner has no authority to award money damages.

15. Once I file a petition, when can I expect a decision?

A petition is not ready for review by the Commissioner's legal staff until all of the papers in the case (answer, reply and briefs) have been filed. The regulations establish timeframes for filing these documents. Because of those timeframes, a file is actually not complete until approximately eight weeks after the initial petition is filed. This time period may be even longer, if the parties request and receive from the Commissioner's staff extensions of time for service. Once the file is complete, we endeavor to issue a decision within six to eight months (i.e., eight to ten months after the petition is filed). However, hundreds of complex appeals are filed each year, so it is impossible to guarantee a specific date.

16. Can I telephone or write the Department to learn about the status of my appeal or when a decision will be issued?

Much like a court with a case that is pending before a judge, the Department and Commissioner do not provide information about the decision-making process or the status of a decision once a petition is filed. However, we make every effort to decide each appeal as expeditiously as possible. Please be patient and understand that time spent responding to inquiries about appeal status is time taken away from the decision-making process.

17. Can I request temporary relief while my appeal is pending?

Except for appeals involving New York City charter school location/co-location and building usage plans (see Question 3), a petitioner may request a stay order in the petition. Please refer to Part 276 of the Commissioner's regulations. The Commissioner, in his discretion, determines whether or not a stay order should be issued.

18. If I request a stay order, when will I receive a decision on my request?

If a respondent opposes a stay request, the respondent must serve and file affidavits in opposition to the request within three business days after service of the petition. The Commissioner generally renders a decision on the stay request within several days of receiving respondent's opposition papers. Stays are granted only in extraordinary circumstances.

19. If the respondent does not oppose my stay request, is my request automatically granted?

No. The Commissioner will still review the petition to determine whether the petitioner is likely to succeed on the merits and whether petitioner will be irreparably harmed in the absence of a stay.

20. When will the Commissioner remove a member of the board of education from office?

The Commissioner has the power to remove a trustee, member of the board of education and certain other school officers for wilful misconduct or neglect of duty. However, the Commissioner will not remove a district officer unless it is clearly established that the officer acted intentionally and with a wrongful purpose to (1) violate the law, (2) neglect his duty, or (3) disobey a decision, order or regulation of the Commissioner. The Commissioner will not remove a school officer if he or she has merely used poor judgment.

21. Do I use the same forms for filing an application for removal as I do for an appeal?

Generally, the forms are the same. However, the notice for removal of a school officer is different. In addition, the petition must state clearly the wilful violation charged against the officer and the facts that show a wilful violation. Please refer to Part 277 of the Commissioner's regulations.

Last Updated: March 9, 2012