January 14, 2021

Submitting a memoranda amicus curiae in an appeal to the Commissioner of Education

§275.17 of the Regulations of the Commissioner of Education permits interested persons to file applications to submit memoranda amicus curiae.

In this appeal to the Commissioner of Education the aggrieved party [Petitioner] submitted a proposed amicus curiae brief prepared by “an attorney whose work has focused on human rights and immigration law.” 

In considering Petitioner's application to submit the proposed amicus curiae brief, then Interim Commissioner of Education Betty A. Rosa noted that historically the standard applied by the Court of Appeals in such situations has been followed by the Commissioner of Education.

Citing Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660, the Commissioner indicated that Court of Appeals' standard requires establishing at least one of the following criteria:

(1) That the parties are not capable of a full and adequate presentation and that the amicus curiae brief could remedy this deficiency;

(2) That the amicus curiae brief could identify law or arguments that might otherwise escape the Commissioner’s consideration; or

(3) That the amicus curiaebrief offered would otherwise be of assistance to the Commissioner.

Commissioner Rosa declined to accept the proposed amicus brief into the record, explaining that she found no basis upon which to conclude that the Petitioner was not capable of a full and adequate presentation of his case requiring remedy by an attorney's "proposed amicussubmission."  

The Commissioner, after reviewing the proposed amicus submission, said that she found "it fails to identify law or arguments that might otherwise escape [her] consideration" nor that it would otherwise be of assistance in this case.

* An impartial adviser to a judicial or quasi-judicial body in a particular case, often serving pro bono.

Click here to access full text of the Commissioner's decision.

 

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