Decision No. 18,510
Appeal of R.P. and M.P., on behalf of their child, from action of the Dutchess County Board of Cooperative Educational Services regarding student discipline.
Decision No. 18,510
(October 15, 2024)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Pamela D. Bass, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal the dismissal of their adult child (“A.P.”) from the practical nursing program of the Dutchess County Board of Cooperative Educational Services (“respondent”). The appeal must be dismissed.
A.P. attended respondent’s practical nursing program during the 2023-2024 school year. By letter dated January 29, 2024, A.P. was dismissed from the program for violating the program’s rules regarding drug use. District-level appeals were denied, and this appeal ensued.
Petitioners raise a host of arguments challenging A.P.’s dismissal from the practical nursing program. Petitioners allege that respondent failed to comply with its own policies, that respondent’s determination was not supported by competent and substantial evidence, and that A.P. was not afforded due process prior to her dismissal. For relief, they seek A.P.’s readmission to the program.
Respondent argues that petitioners lack standing and that its dismissal of A.P. was appropriate in all respects.
The appeal must be dismissed for lack of standing. 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 (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).
In the petition, petitioners indicate that they reside with A.P. and contributed toward the tuition she owed for the practical nursing program.[1] These allegations, however, are insufficient to establish that petitioners, as opposed to A.P., were directly affected by respondent’s actions (Appeal of Siegriest, 64 Ed Dept Rep, Decision No. 18,483). While the Commissioner has permitted parents to maintain appeals on behalf of children over 18 years of age, those appeals involved controversies that stemmed from events prior to the students’ graduation from high school (see e.g. Appeal of R.T. and E.T., 57 Ed Dept Rep, Decision No. 17,340 [parents could maintain appeal on behalf of their adult child to challenge a grade he received in AP Biology while attending high school]).[2] This appeal, by contrast, involves a student’s dismissal from an adult instructional program, attendance upon which is neither a statutory requirement nor a legal right (Education Law §§ 3202 [1], 3205 [1] [a]).[3] In this respect, the website for respondent’s practical nursing program indicates that “[a]pplicants must be a high school graduate, or hold a GED” to be admitted to the program.[4]
Additionally, petitioners’ voluntary financial support for A.P., including contribution toward tuition costs, does not confer standing in this matter. Petitioners do not allege, for example, that they contracted directly with respondent or are otherwise obligated to pay A.P.’s tuition (cf. B.D. v E.D., 75 Misc 3d 828, 833 [Sup Ct, NY County, 2022] [parent could maintain action, on behalf of her 26-year-old daughter, against her former spouse for alleged breach of a separation agreement concerning health insurance coverage for the daughter]).
In sum, petitioners were not directly affected by respondent’s actions. While A.P. is under 21, petitioners’ standing claim admits of no limitations and would allow parents to assert rights on behalf of adult children at any age. That would violate the cardinal principal of standing: demonstration of an “in-fact injury” that reveals “an actual legal stake in the matter in dispute” (New York State Assn. of Nurse Anesthetists v Novello, 2 NY3d 207, 211–12 [2004]). Thus, the appeal must be dismissed (Appeal of Siegriest, 64 Ed Dept Rep, Decision No. 18,483).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
[1] Petitioners also seek to submit, with their reply, an affidavit from A.P. indicating that she supports the instant petition. Fundamental issues such as standing, however, cannot be cured in a reply or through the submission of additional evidence (see Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527 [noting, in context of failing to include a required form with a petition, that “[o]nce petitioner realized that her papers were jurisdictionally defective, her recourse was to personally serve papers” correcting the error. “At that juncture, the Commissioner could accept the late pleading for good cause shown”]).
[2] See also Appeal of White, 52 Ed Dept Rep, Decision No. 16,442 (exclusion of high school senior on basis of non-residency); Appeal of Debbie L., 39 id. 505, Decision No. 14,294 (discipline imposed while student attended high school); Appeal of R.N., 38 id. 138, Decision No. 14,002 (same); Appeal of John W. and Elaine W., 37 id. 713, Decision No. 13,965 (challenge to grade of zero assigned while student attended high school); Appeal of Strada, 34 id. 629, Decision No. 13,434 (challenge to denial of credit for physics course student attended in high school).
[3] In this respect, Education Law § 3214 does not govern the instant dispute because, as part of the compulsory school act, it only pertains to suspension “from required attendance upon instruction” (Education Law § 3214 [3] [a]).
[4] See also Education Law § 6906 (“[t]o qualify for a license as a licensed practical nurse, an applicant shall,” among other requirements, “have received an education including completion of high school or its equivalent”).