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Tuesday, October 13, 2015

Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310

Only persons who are directly affected by the act or omission being challenged have standing to appeal to the Commissioner of Education pursuant to Education Law §310
Appeal of Diane Payson, Decisions of the Commissioner of Education, Decision 16,830

This appeal challenged the elimination of certain school counselor positions and implementation of its guidance program. 

Diane Payson, a certified school counselor, was previously employed by the Mount Pleasant Cottage Union Free School District, a special act school district.  The district made staff reductions in its counseling program. Initially Payson’s full-time position was changed to a part-time position, effective June 30, 2014 and subsequently her position was abolished effective September 23, 2014.

Payson contended, on behalf of students in grades nine through twelve, that the School District’s guidance counselor program does not meet the requirements set forth in §100.2 of the Commissioner’s regulations, alleging that as a result of the elimination of her position there are no certified school counselors in the district and that School District is improperly using untrained certified social workers and school psychologists to take on the duties of a school counselor.  Payson asked the Commission to direct the School District to reinstate her to her full-time school counselor position in the guidance program, “with compensation for lost salary.”

Addressing a procedural issue, standing, the Commissioner said that an individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

To the extent that Payson’s appeal alleges that by eliminating her school counselor position and those of others, the School District is not in compliance with Commissioner’s regulations in providing guidance programs to students in grades nine through twelve the Commissioner noted that [1] she did not allege that she is the parent of any student in School District and [2] she may not assert the rights of children not her own. Accordingly, the Commissioner ruled that to the extent that Payson asserted claims on behalf of students, she lacks standing to maintain the appeal and such claims must be dismissed. 

To the extent that Payson complains of the loss of her employment as a result of the School District’s alleged noncompliance with Commissioner’s regulations, for which she seeks reinstatement and back pay as relief, she has alleged the requisite personal injury.  Consequently, said the Commissioner, Payson had standing to maintain that claim.

The Commissioner then dismissed Payson’s appeal on the merits, explaining that in  an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Citing Steele v. Bd. Of Educ. of the City of New York, 40 NY2d 456, the Commissioner noted that the Court of Appeals has held that “[i]t is not enough to merely show ... that all guidance counseling positions have been eliminated....  The requisite programs could likely be maintained by utilizing the services of certified personnel whose primary duties are in other positions.  Since there has been no showing that any guidance and counseling programs have been wholly eliminated, we conclude that this portion of the petition was properly dismissed....”

Other than speculation, the Commissioner said that Payson did not introduce any evidence that School District is not providing a guidance program in compliance with §100.2(j) of the Commissioner’s regulations. Accordingly, the Commissioner said that “On this record” she could not conclude that Payson has carried her burden and established a clear right to relief.

Notwithstanding the Commissioner’s being “constrained to dismiss the appeal,” she said  “I am mindful that the student population in respondent’s school district consists of students with disabilities and that any failure to provide services prescribed in a student’s individualized education program, including the provision of transition services, may constitute a violation of the federal Individuals with Disabilities Education Act, Article 89 of the Education Law, and/or Part 200 of the Commissioner’s regulations.”

The Commissioner then opined that although Payson did not carry her “burden of proof sufficient to warrant relief in this appeal, the record does present issues worthy of review by my Office of Special Education.” The Commissioner then said she would refer this matter to that office for review to ensure that the School District’s guidance program “is sufficient to ensure compliance with requirements of federal and State law pertaining to students with disabilities.”

The decision is posted on the Internet at:


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