Frequently Asked Questions Concerning Appeals to the Commissioner of Education
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1. How do I bring an appeal?
Education Law §310 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 providing assistance in connection with such 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.
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 complex and 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; the Commissioner rarely excuses 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.
The burden of proving facts that entitle you to legal relief is on you as the petitioner. You must show through documentary evidence, verified (sworn to as correct and accurate) pleadings and/or affidavits (sworn statements of others based on personal knowledge) 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 legal obligation (e.g., constitutional provision, statute, regulation, board policy); 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 without a rational basis. It is not enough to show that the district could have made a better or different determination, or that you as a petitioner disagree with the action or determination.
10. 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.
11. What will the Commissioner consider in making a determination?
The Commissioner will consider only documents that are properly submitted as part of the record (i.e., verified pleadings, affidavits, documentary evidence or reports/records of the State Education Department). The Commissioner will not consider facts that are outside of the record (i.e., information provided by telephone to the Department or copies of newspaper articles).
12. Is there any way to anticipate how the Commissioner will decide my petition?
Petitioners are encouraged to review prior decisions, which suggest how the Commissioner might rule in a similar case based on similar facts. 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 (vol. 31) to date are available on this web site at Decisions of the Commissioner of Education.
13. 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, which must instead be brought before a court (Public Officers Law §§ 89, 107). Moreover, the Commissioner has no authority to award money damages.
14. 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. Due to these timeframes, a file is actually not complete until approximately eight weeks after the petition is filed. This time period may be even longer, if the parties request and receive extensions of time. 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.
15. 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. While you may contact the Office of Counsel to inquire as to the status, please understand that each appeal receives careful attention and review.
16. Can I request temporary relief while my appeal is pending?
Yes, except for appeals involving New York City charter school location/co-location and building usage plans (see Question 3). Please refer to Part 276 of the Commissioner's regulations. The Commissioner has the discretion to determine whether or not a stay order should be issued.
17. 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 a few days of receiving respondent's opposition papers.
18. 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 interim relief is warranted.
19. 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 pursuant to Education Law § 306. 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 or (2) disobey a decision, order or regulation of the Commissioner. The Commissioner also has authority to remove board members for neglect of duty. No board member may be removed until he or she receives the opportunity to defend him or herself at a hearing.
20. 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 petition must include a notice to the officer as stated in 8 NYCRR 277.1 (b). 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.