Only an appeal filed pursuant to §310 of the Education Law by an entity having "standing" will be considered by the Commissioner of Education
Appeal of United Federation of Teachers, Local 2, and the New York City Department of Education, Decisions of the Commissioner of Education, Decision No. 16,668
United Federation of Teachers, Local 2, American Federation of Teachers, AFL-CIO [Local 2], the exclusive Taylor Law collective bargaining representative for library media specialists (“LMSs”) and assistant library media specialists (“ALMSs”), filed an appeal with Commissioner of Education pursuant to 310 of the Education Law in which it alleged that the New York City Department of Education (“NYCDOE”) failed to comply with the staffing requirements set forth in §91.2 of the Commissioner’s regulations, [8 NYCRR 91.2].
The Commissioner dismissed Local 2’s appeal for a number of procedural reasons, including:
1. Lack of standing to represent an individual or class of individuals: The Commissioner said that Local 2’s appeal must be dismissed to the extent Local 2 attempted to assert claims on behalf of students. The Commissioner explained that “Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310” and while Local 2 may have, under certain circumstances, standing to assert claims on behalf of its members, it lacks standing to assert the rights of others, in this instance “students” in certain schools.
2. Lack of organizational standing. Here, said the Commissioner, Local 2 failed to demonstrate that it met the first requirement of the three-part test for "organizational standing" required to assert claims on behalf of its members. In order to establish organizational standing, Local 2 was required to demonstrate  that one or more of its members has standing to sue,  that the interests advanced in the matter “are sufficiently germane to the individual members’ purposes” such that the organization is an appropriate representative of those interests, and  that the participation of the individual members is not required to assert the claim.
With respect to the first test, the Commissioner found that Local 2 failed to allege that any of its individual members had, in fact, suffered harm but, rather, alleged only that such members cannot “seek placement” in certain schools.
3. Mootness. The Commissioner noted that Local 2 challenged NYCDOE’s compliance with the Commissioner’s regulation for the 2011-2012 school year. Thus, said the Commissioner, the appeal must also be dismissed as moot as that school year had since ended. In the words of the Commissioner, “[t]he Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”*
However, the Commissioner said that although he was “constrained to dismiss the appeal” for procedural reasons, he was troubled by the fact that NYCDOE had admitted only “substantial” compliance with the regulation and asserted that "it is in the midst of developing a waiver process” through which its schools “could request the Commissioner to approve an ‘alternate arrangement,’ pursuant to §91.2.”** Further, said the Commissioner, the record indicates that NYCDOE has failed to staff certain secondary schools with the required number of LMSs or ALMSs or to provide an alternative arrangement approved by the Commissioner.
The Commissioner then took administrative notice*** that, subsequent to the commencement of the instant appeal, NYCDOE had submitted a request to the State Education Department for a waiver but subsequently withdrew its request with assurances that it would be submitting a comprehensive strategic plan for libraries that would address the need to properly staff schools with LMSs and ALMSs. To date, said the Commissioner, no such comprehensive plan has been submitted.
In view of this, the Commissioner directed NYCDOE to comply with the requirements of 8 NYCRR §91.2 in the 2014-2015 school year and thereafter.
In addition, the Commissioner directed the State Department of Education’s Office of Curriculum and Instruction to provide guidance and technical assistance to NYCDOE to this end.
*The Commissioner noted that the appeal did not fall within an exception to the “mootness doctrine” as the determination of issues involving the NYCDOE’s compliance with the regulation’s staffing requirements “are necessarily fact-specific and can be addressed in a subsequent appeal that presents a live controversy.”
** 8 NYCRR 91.2
*** See * NYCRR 276.6.
The decision is posted on the Internet at:http://www.counsel.nysed.gov/Decisions/volume54/d16668