Appeal of LEAH WISEMAN FINK, et al., from action of the New York City Department of Education regarding board practices and application for the removal of the members of Community Education Council District 14.

Decision No. 18,548

(February 11, 2025)

Constantine Cannon LLP, attorneys for petitioners, Matthew L. Cantor, Esq., of counsel

Muriel Goode-Trufant, Acting Corporation Counsel, attorneys for respondent, Jordan Doll, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge certain actions of New York City’s Community Education Council for District 14 (“CEC-14”) and seek the removal of its members in connection therewith (“respondents”).  The appeal must be dismissed and the application must be denied. 

Given the disposition of this appeal, a detailed recitation of the facts is unnecessary.  Petitioners, who are Jewish and/or of Israeli descent, reside within CEC-14.  Petitioners oppose various actions of CEC-14, particularly those of former President Tajh Sutton.  Petitioners contend that, among other things, that they were not permitted to attend or speak at monthly CEC-14 meetings based upon their religious beliefs or ancestry.[1]  They further assert that board members used CEC-14’s social media accounts to promote their personal views on the Israeli-Palestinian conflict.  Petitioners also argue that CEC-14 members violated various provisions of the Chancellor’s Regulations.  For relief, they seek: (1) declarations that respondents violated Chancellor’s regulation D-130; (2) removal of all CEC-14 members; (3) an order precluding CEC-14 from offering “statements or opinions regarding the Israeli-Palestinian conflict”; and (4) orders enjoining CEC-14 to allow “Jewish and/or Israeli background” to fully participate in district meetings and affairs.

Respondent admits that CEC-14 failed to hold public meetings that complied with Education Law § 2590-e (14) and the Open Meetings Law (Public Officers Law §§ 100, et seq.).  Respondent further concedes that CEC-14 improperly held meetings by videoconference in which it muted or removed the comments of certain participants and published posts on its official social media account concerning the Israel-Palestine conflict.  However, respondent argues that the Commissioner lacks jurisdiction to adjudicate violations of the Chancellor’s regulations or award certain relief sought by petitioners.

Before addressing the merits, I must address several preliminary matters.  First, the parties have submitted information concerning two events that transpired after this appeal was commenced:  (1) On June 14, 2024, then-Chancellor Banks[2] removed CEC-14 president Tajh Sutton; and (2) plaintiffs in a lawsuit captioned Alexander v. Sutton obtained a preliminary injunction enjoining CEC-14 and two of its members (collectively, “defendants”) from discriminating against speakers at CEC-14’s public meetings based upon their viewpoints and/or political associations and restricting access to CEC-14’s official X account to users approved by defendants or based upon users’ viewpoints and/or political associations.[3]  Pursuant to section 276.5 (a) of the Commissioner’s Regulations, the Commissioner may permit or require the service and filing of affidavits, exhibits and other supporting papers…upon good cause shown and such terms and conditions as the commissioner may specify.  A party seeking to file affidavits, exhibits and other supporting papers pursuant to this subdivision shall submit an application to the Office of Counsel, which shall state the reason(s) why such affidavits, exhibits or other supporting papers are necessary and include a copy of each such affidavit, exhibit or other supporting papers, together with proof of service of the application and the proposed exhibits, affidavits or other supporting papers upon all parties in accordance with subdivision (b) of section 275.8 of this Part. I have accepted all evidence concerning these events into the record, including the parties’ arguments in connection therewith.

Second, petitioners’ allegations concerning CEC-14’s compliance with the Open Meetings Law must be dismissed.  Public Officers Law § 107 vests exclusive jurisdiction over alleged violations of the Open Meetings Law in the Supreme Court of the State of New York (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928).  Therefore, such allegations may not be adjudicated in an appeal pursuant to Education Law § 310, and I have no jurisdiction to address the Open Meetings Law allegations raised in this appeal.

Third, petitioners’ request to remove Tajh Sutton must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; see Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714 [1980]).  Where the Commissioner can no longer award a petitioner meaningful relief on his or her claims, no live controversy remains and the appeal must be dismissed (Appeal of R.B., 57 Ed Dept Rep, Decision No. 17,394; Appeal of N.C., 40 id. 445, Decision No. 14,522).  As indicated above, then-Chancellor Banks removed Ms. Sutton from CEC-14 for the remainder of her current term, through June 30, 2025.[4]  Accordingly, this portion of the appeal must be dismissed as moot (Application of the Board of Education of the Beekmantown Central School District, 59 Ed Dept Rep, Decision No. 17,718; Appeal of Parrino, 53 id., Decision No. 16,547).

Turning to the merits, the Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729).  To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose (see Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Nett and Raby, 45 id. 259, Decision No. 15,315).[5]

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have failed to prove that the actions of the remaining members of CEC-14 warrant removal.  The majority of petitioners’ allegations concern Ms. Sutton, who has since been removed.  Former Chancellor Banks’ decision to remove Ms. Sutton reflects the New York City Department of Education’s unwillingness to tolerate the conduct described in the petition.  Additionally, respondent’s September 25, 2024 submission includes evidence that CEC-14 is complying with the terms of the preliminary injunction.  Therefore, I decline to award the relief requested by petitioners, including removal of the remaining members of CEC-14.

This outcome should not be interpreted as an endorsement of CEC-14’s conduct.  CEC-14 serves families holding a variety of political, social, and religious beliefs.  It did them a disservice by engaging in viewpoint discrimination and seeking to silencing those who disagreed.  This contravened CEC-14’s internal guidelines, which acknowledge that “[p]eople can disagree” and that “[d]ifferences in perspectives foster our learning.”[6]  I agree with Chancellor Banks’ assessment of Ms. Sutton’s conduct:

It [was] incumbent on [New York City Public Schools] leaders, including parent leaders, to show empathy rather than stoke division, and not add to the hostility or trauma many in our school communities are experiencing.  Your conduct has not been consistent with the values of inclusion and empathy for all that we prioritize. As an example, referring to those who disagree with you as “local Zionists” and accusing them of “vile” conduct offends and excludes the many community members who support the existence of the state of Israel as a refuge for Jews, as well as their allies.

Further conduct like this will be considered a neglect of duty within the meaning of Education Law § 306 (1).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED. 

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