Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Tuesday, November 22, 2016

Education Secretary Calls on States to Abolish Corporal Punishment in Schools

Corporal punishment, believe it or not, is still legal in 22 states. Corporal punishment involves hitting students for the purpose of punishment. This practice was upheld by the Supreme Court in the early 1980s.  Now, Eduation Secretary King is calling on those states where corporal punishment is still practiced, to abolish it. See here 

Law review commentary on this topic would be most welcome. 

Mitchell H. Rubinstein


November 22, 2016 in Education Law | Permalink | Comments (0)

Tuesday, October 11, 2016

Supremes Grant Cert In Major Special Education Case Which Will Define The Applicable Standard

The U.S. Supreme Court granted cert in a case about the level of education benefit a child must receive for a school district to have provided an appropriate level of service under the IDEA.

The case, Endrew F. v. Douglas County School District RE-1 (No. 15-827), raises an important question that has divided federal appeals courts: What level of educational benefit must a child receive under his or her individualized education program, or IEP, to satisfy the demands of the Individuals with Disabilities Education Act? A copy of the United States amicus brief is available here.

Parents of course want their child to have the most appropriate level of benefits. But, for years the standard has been that the services must provide some educational benefit. The Supremes will now define what that means.


Mitchell H. Rubinstein


October 11, 2016 in Education Law, Special Education Law | Permalink | Comments (0)

Supremes About To Decide Major IDEA Case Involving Use of Service Dogs In School

The issue in  (Fry v. Napoleon Community Schools) is whether a disabled child’s family must first try to work out with school officials a dispute over the assistance their child needs, before the parents may sue for money damages under federal anti-discrimination law.  The dispute in the case involves a claim by a disabled girl’s family that the school would not allow her to bring a service dog to help her during her classes. 

Law review commentary on the interplay between the IDEA and the ADA as well as exhaustion of administrative remedies would be most welcome.

Mitchell H. Rubinstein

October 11, 2016 in Education Law, Law Review Ideas, Special Education Law | Permalink | Comments (0)

Tuesday, October 6, 2015

Obama Administration Sues School Over Service Dog

A school in upstate New York has been sued by the Department of Justice for refusing to allow a disabled student to bring his service dog to school without a handler provided by the child's family.  An article about this suit can be found here.  A copy of the complaint is here

Law review commentary on the use of service dogs in school would be welcome.

Mitchell H. Rubinstein

October 6, 2015 in Discrimination Law, Education Law, Law Review Ideas | Permalink | Comments (0)

Wednesday, February 4, 2015

Dismissed Medical Student Unsuccessfully Sues His Medical School

Sarwar v New York Coll. of Osteopathic Med. of N.Y. Inst. of Tech. 2015 NY Slip Op 30128(U) (Nassau Co. 2015), is an interesting decision.  Download Sarwar v. NY College of Osteopathic Medicine, 2015 NY Slip Op 30128 (Nassau Co. 2015) 

Though the decision is written in a somewhat conclusionary fashion, it does hold that the plaintiff is time barred because he did not commence within the time frame permitted by Article 78. The court also discussed the deference due to the school, stating:

"Strong policy considerations militate against the intervention of courts in controversies
relating to an educational institution's judgment of a student's academic performance" (Matter oj Susan M v. New York Law School, 76 N.Y.2d 241, 245 [1990]). "Courts retain a restricted role" in dealing with and reviewing controversies involving institutions of higher learning. (Maas v. Cornell Univ., 94 N.Y.2d 87, 92 [1999]). "CPLR aiiicle 78 proceedings are the appropriate vehicle because they insure that the over-all integrity of the educational institution is maintained". Id. Although couched in the complaint herein in terms of breach of contract and unjust enrichment, plaintiffs complaint is in fact a challenge to defendant's academic and administrative decisions, and consequently the redress for his dismissal was an Article 78 proceeding, instead of this plenaiy action (Keles v. Trustees of Columbia Univ. in the City of NY, 74 A.D.3d 435 [1st Dept. 2010], Iv. app. dsmd 16 N.Y.3d 890 [2011], cert. den. 132 S. Ct. 255 [2011]); Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634 [1st Dept. 2010], Iv. app. den. 15 N.Y.3d 708 [2010]; Gary v. New York Univ., 48 A.D.3d 235 [1st Dept. 2008]; Frankel v. Yeshiva Univ., 37 A.D.3d 760 [2d Dept. 2007], lv. app. den. 9 N.Y.3d 802 [2007]; Bottalico v. Adelphi Univ., 299 A.D.2d 443 [2d Dept. 2002]; Diehl v. St. John Fisher
Coll., 278 A.D.2d 816 [4th Dept. 2000], Iv. app. den. 96 N.Y.2d 707 [2001]; 1\1elvin v. Union Coll., 195 A.D.2d 447 [2d Dept. 1993]).
Furthermore, as the limitations period for commencement of an Article 78 proceeding is
within four months after the determination to be reviewed becomes final and binding (CPLR 217; see Padiyar, supra, and Bottalico, supra), any claim plaintiff might have had is time-barred (Padiyar, supra; Frankel, supra; Bottalico, supra). This finding of untimeliness applies to plaintiffs breach of contract claim as well as the claim for unjust enrichment. (Kickertz v New York Univ., 110 A.D.3d 268, 276-277 [1st Dept. 2013]). Under these circumstances, conversion by this Cowt of this action to a special proceeding is not available (Keles, supra), and the complaint must be dismissed.
For the record, this is not a case where plaintiff alleges that defendant failed to comply
with its own obligations as specifically set forth in the school's bulletins, circulars, student
handbook and regulations (cf. Clogher v. New York Med. Coll., 112 A.D.3d 574, 576 [2d Dept. 2013]). Nor is it a case where arbitrary action taken against a student was predicated upon grounds unrelated to academic performance (cf. Matter of Rizvi v. New York Coll. of Osteopathic Medicine of N. Y. Inst. of Tech., 98 A.D .3d 1049 [2d Dept. 2012]). Nor yet is this a case where dismissal is premature (Eidlisz v. New York Univ., 15 N.Y.3d 730 [2010]). 
Plaintiff does not allege that any specific policy, rule, guideline or regulation was
violated by defendant (Ga1y, supra). Instead, he suggests that religious discrimination played a role in his dismissal, although any claim for religious discrimination under the state Human Rights Law would be untimely under the three-year limitations period for discriminatory practices (CPLR §214(2); Murphy v. American Home Prods. Co1p. , 58 N.Y.2d 293, 239 [1983]).

Mitchell H. Rubinstein

February 4, 2015 in Education Law | Permalink | Comments (0)

Friday, September 26, 2014

What Do Education Lawyers Do?

The National School Board's Association has a web page dedicated to careers in Education Law which readers may find of interest, here.  They describe what school board lawyers do in part, as follows:

Advisers Guiding School Boards on Legal Matters

School lawyers are employed by school boards to represent their school districts in legal matters. These lawyers need to wear many hats. Their job duties include offering advice on legal and policy matters, researching legal issues, and representing the school district in litigation matters.

Why do school districts need lawyers?

School boards and district staff must deal with legal issues daily. A school board attorney helps district officials to follow the web of state and federal regulations affecting schools, and to avoid costly litigation. When litigation is necessary, a school attorney advocates for the school board before courts and administrative bodies. - See more at:

Mitchell H. Rubinstein

September 26, 2014 in Education Law, Lawyer Employment | Permalink | Comments (0)

Monday, July 28, 2014

Importance of Special Education

Balancing Special-Education Needs With Rising Costs, NY Times (July 27,2014)is an interesting NY Times article about the importance of special education to a child's life and how taxing the litigation process can be for parents and their child. As the article states:

It was a daily struggle to keep Dylan alive, much less educate him. And when his public school could not deliver all the daily therapy the then 5-year-old was supposed to receive, his parents asked that New York City pay for what they believed was the kind of education Dylan needed: a private school for disabled children.

Rather than pay, however, the city decided to fight. For several months, the Randalls and their lawyers battled with city lawyers, until Nov. 18, when a hearing officer ruled in the family’s favor. Not only did the boy deserve placement in a private school, the hearing officer, Diane R. Cohen, said, but he was also owed hundreds of therapy sessions that the city had failed to deliver during his kindergarten year.

“For a student who is unable to ambulate on his own and is dependent on the provision of therapies for every aspect of life’s functions, the failure to consistently provide related services is a serious impediment to the student’s well-being,” Ms. Cohen wrote.

Mitchell H. Rubinstein





July 28, 2014 in Education Law, Special Education Law | Permalink | Comments (0)

Sunday, April 27, 2014

Weber, In Defense of IDEA Due Process

I am delighted to announce that Professor Mark Weber (DePaul Law School) just published another excellent paper on the IDEA. This one concerning the right to due process. The name of the paper is In Defense of IDEA Due Process. It is available for a free download here.  The abstract provides:

Due Process hearing rights under the Individuals with Disabilities Education Act are under attack. A major professional group and several academic commentators charge that the hearings system advantages middle class parents, that it is expensive, that it is futile, and that it is unmanageable. Some critics would abandon individual rights to a hearing and review in favor of bureaucratic enforcement or administrative mechanisms that do not include the right to an individual hearing before a neutral decision maker. 

This Article defends the right to a due process hearing. It contends that some criticisms of hearing rights are simply erroneous, and that others are overstated. The system is generally fair to the various classes of parents, even if some parents are better able than others to use it effectively. Costs are remarkably low given the number of children receiving special education, and hearings and hearing requests have been in decline for years. Far from being futile, the due process hearing system is one in which parents win a significant percentage of cases. And far from being out of control, hearings are generally being managed effectively. The system could be rendered still more efficient with a few modest reforms of the special education statute and its interpretation.

Mitchell H. Rubinstein

April 27, 2014 in Education Law | Permalink | Comments (0)

Monday, February 24, 2014

Maine Supreme Judicial Court rules in favor of transgender student on bathroom issue

The Maine Supreme Judicial Court, in a 6-1 split, has ruled that a school district violated a transgender student’s rights under the Maine Human Rights Act  when it prohibited her from using the girls’ communal restroom at school.

- See more at:

Doe v. Regional Sch. Unit 26, No. 12-582 (Me. Jan. 30, 2014)

February 24, 2014 in Constitutional Law, Education Law | Permalink | Comments (0)

Sunday, October 6, 2013

Drunken Run Could Leave Cornell Liable for Fatal Fall

Cornell University is potentially liable for the death of an intoxicated student who ran off the edge of a cliff in the middle of the night, even though the institution would have been immune if the youth had been using the campus hiking path for its intended purpose. The case is  King v. Cornell University, 2013 NY Slip Op 23278.

Read more:

Mitchell H. Rubinstein

October 6, 2013 in Education Law, New York Law | Permalink | Comments (0)

Wednesday, September 4, 2013

resigning one's employment to join a relocated spouse may, in certain circumstances, constitute good cause for leaving one's employment

Matter of Fuentes v Commissioner of Labor, ____A.D. 3d___(3d Dep't. July 25, 2013), is an interesting case because it discusses the fact that one can resign to join a relocated spouse, and still get unemployment. As the court explained:

Substantial evidence supports the decision of the Unemployment Insurance Appeal Board finding that claimant was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment as a machine operator without good cause based on personal reasons when continuing work was available (see Matter of Cole [Horan—Commissioner of Labor], 45 AD3d 1229, 1230 [2007]; Matter of Cisneros [Commissioner of Labor], 18 AD3d 1000, 1001 [2005]). While claimant asserts that his resignation was due to economic necessity caused by a periodic nonpermanent reduction in his work hours that had been agreed to by the employer and the union, the Board did not find this explanation credible (see Matter of Felix [Pepsi Cola Newburgh Bottling Co.—Commissioner of Labor], 14 AD3d 926, 927 [2005]). Instead, the Board noted that claimant's resignation letter acknowledged that his monthly expenses were being met and claimant also testified at the hearing that he was voluntarily sending money each week to his wife and children, who had moved to Florida. Although resigning one's employment to join a relocated spouse may, in certain circumstances, constitute good cause for leaving one's employment (see e.g. Matter of Stuber [Shanken Communications—Commissioner of Labor], 253 AD2d 972, 972 [1998]), here, claimant testified that his family had moved away over a year prior to his resignation and he would have remained working for the employer had his hours not been reduced. Accordingly, we find no basis to disturb the Board's decision that claimant did not demonstrate good cause to leave his [*2]employment (see Matter of Dawson [New York City Health & Hosps. Corp.—Commissioner of Labor], 30 AD3d 943, 944 [2006]).

September 4, 2013 in Education Law | Permalink | Comments (0)

Saturday, March 9, 2013

South Dakota Authorizes Teachers To Have Guns

What is this world coming to. South Dakota recently became the first state in the union to specifically authorize teachers to carry guns. Details are in this New York Times article, here. As the article states:

While some other states have provisions in their gun laws that make it possible for teachers to be armed, South Dakota is believed to be the first state to pass a law that specifically allows teachers to carry firearms.

About two dozen states have proposed similar bills since the shootings in December at Sandy Hook Elementary School in Newtown, Conn., but all of them have stalled.


Mitchell H. Rubinstein

March 9, 2013 in Education Law | Permalink | Comments (0)

Tuesday, February 26, 2013

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.
Decisions of the Commissioner of Education, Decision No. 16,450
In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and theEducational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.
The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”
As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.
The decision is posted on the Internet at:
Reprinted with permission New York Public Personnel Law
Mitchell H. Rubinstein

February 26, 2013 in Education Law | Permalink | Comments (0)

Saturday, February 9, 2013

New Jersey appellate court upholds district’s removal of teacher who posted derogatory remarks about her students on Facebook

Source: NSBA Legal Clips; Free subscriptions available Reproduced with permission. Copyright © 2013, National School Boards Association. All rights reserved.
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
Abstract: A two-judge panel of the Appellate Division of the New Jersey Superior Court has ruled that school district officials were justified in terminating an elementary school teacher for posting derogatory remarks on Facebook about her students, including referring to them as “future criminals.” Agreeing with the administrative law judge (ALJ) and the Acting Commissioner of Education, the panel concluded the teacher’s remarks were not protected by the U.S. Constitution’s First Amendment Free Speech Clause because the remarks were not made on a matter of public concern.
The panel also found evidence supporting the ALJ’s and Commissioner’s determination that the teacher had engaged in conduct unbecoming a tenured teacher. Finally, the panel agreed with the ALJ and Commissioner that her termination was the appropriate penalty.
Facts/Issues: At the time of her termination, Jennifer O’Brien was employed by the School District of the City of Paterson (PCSD) as a first grade teacher. In March 2011, she posted two statements on Facebook that had cast her students in a derogatory light, including referring to them as “future criminals.” The remarks gained widespread public attention, with a number of parents complaining about O’Brien’s comments.
After PCSD’s Deputy Superintendent filed charges against O’Brien for conduct unbecoming a teacher, PCSD’s Superintendent found probable cause to support the charges and O’Brien’s termination. The charges were then filed with the Acting Commissioner of Education, who referred the matter to the Office of Administrative Law for a hearing before an ALJ.
The ALJ rejected O’Brien’s argument that her remarks were entitled to First Amendment protection on grounds that she had addressed a matter of public concern, i.e., student misconduct. Instead, the ALJ found the remarks were “a personal expression” of dissatisfaction with her job. The ALJ also concluded that even if O’Brien’s speech was on a matter of public concern, her right to express her views was outweighed by PCSD’s need to operate its schools efficiently. The ALJ stated that “in a public school setting thoughtless words can destroy the partnership between home and school that is essential to the mission of the schools.”
The ALJ also found the evidence supported the charges of conduct unbecoming a teacher because it showed O’Brien failed to maintain a safe, caring, nurturing, educational environment. Additionally, the ALJ determined that O’Brien breached her duty as a professional teacher. Lastly, the ALJ found O’Brien’s conduct justified her removal because O’Brien’s relationship with the Paterson school community had been irreparably damaged. The Acting Commissioner adopted the ALJ’s ruling.
O’Brien appealed that decision, raising three arguments: (1) the ALJ and the Commissioner erred by rejecting her constitutional claim; (2) the tenure charges were not supported by the evidence and should have been dismissed; (3) her removal was not the appropriate penalty.
Ruling/Rationale:  The Appellate Division panel rejected all of O’Brien’s arguments, finding them without merit, and affirmed the ALJ’s and Commissioner’s decisions. The panel concluded that O’Brien’s remarks did not constitute protected speech because they were personal statements motivated by her dissatisfaction with her job and the behavior of some her students. The panel also agreed that even if the remarks were on a matter of public concern, PCSD’s interest in the efficient operation of its schools outweighed her right to free speech.
The panel also found that the evidence supported the ALJ’s determination that O’Brien had engaged in conduct unbecoming a tenured teacher. It pointed out that both the ALJ and the Commissioner found that by posting the comments, O’Brien had demonstrated a lack of control “inimical to her role as a professional educator.”
Finally, the panel rejected the argument that O’Brien’s termination was not an appropriate penalty. It stated: “We are satisfied that, in determining the appropriate penalty, the ALJ and Acting Commissioner considered all relevant factors and reasonably concluded that the seriousness of O’Brien’s conduct warranted her removal from her tenured position in the district.”
In re Tenure Hearing of Jennifer O’Brien,  No. A-2452-11T4 (N.J. Super. Ct., App. Div. Jan. 11, 2013)
[NSBA’s Editor's Note: In November 2011, Legal Clips summarized an article in The Record, which reported on ALJ Ellen Bass' ruling. "O'Brien has demonstrated a complete lack of sensitivity to the world in which her students live,” Bass said. “The sentiment that a 6-year-old will not rise above the criminal element that surrounds him cuts right to the bone.” Bass also noted that O’Brien had failed to express genuine remorse during her August 2011 hearing. “I came away with the impression that O’Brien remained somewhat befuddled by the commotion she had created,” the judge wrote.]

Reprinted by permission New York Public Personnel Law
Mitchell H. Rubinstein

February 9, 2013 in Education Law | Permalink | Comments (0)

Sunday, January 27, 2013

Student Can Be Required To Wear ID Badge

A.H. v. Northside Indep. Sch. Dist., No. 12-1113 (W.D. Tex. Jan. 8, 2013), is an interesting decision. There, a federal district court denied a student’s motion for a preliminary injunction barring a school district from transferring her from the specialty program she attends back to her base school because she refuses to wear the required ID badge while on campus. The court rejected her claims that being required to wear the badge violated her First Amendment rights to the free exercise of religion and free speech, and her Fourteenth Amendment rights to due process and equal protection. In addition, the court found that the ID badge requirement did not violate her rights under the Texas Religious Freedom Act.

Mitchell H. Rubinstein

January 27, 2013 in Education Law | Permalink | Comments (0)

Sunday, January 13, 2013

Michigan student arrested for making online threats to teache

The Associated Press (AP) reports in the Huffington Post that a 16-year-old student in Southern Michigan has been arrested after authorities said he threatened a teacher in an online posting, the latest clampdown on unruly students in the wake of the recent Connecticut school massacre.

Huffington Post, 12/21/12, By The AP

January 13, 2013 in Education Law | Permalink | Comments (0)

Monday, January 7, 2013

Texas district allows teachers to carry concealed weapons at school

Source:  Times-Picayune, 12/20/12, By Juan A. Lozano and Nomaan Merchant (AP)

What is this world coming to???

Mitchell H. Rubinstein

January 7, 2013 in Education Law | Permalink | Comments (1)

Thursday, January 3, 2013

Court Upholds Suspension of Student From Columbia University For Cheating

It is virtually impossible to sucessfully challenge an academic dismissal for cheating. Choi v. Columbia University, ____Misc. 3d____(N.Y. Co. Dec. 5, 2012), is a typical decision upholding the dismissal. 

Mitchell H. Rubinstein

January 3, 2013 in Education Law | Permalink | Comments (0)

Wednesday, December 26, 2012

Some School Districts To Begin Offering Online Classes

Online education is here to stay. Now, there are some K-12 districts that are considering online classes. A NY Times article about this is available here

I am not a big fan on online education on the college, law school or secondary level. An important part of education is learning to interact with peers, professors and others. It is also just too easy to take short cuts with an online class as the student may be watching TV instead of the screen. 

Online education also raises a host of labor law and other issues. Does anyone have an opinion about this.

Mitchell H. Rubinstein

December 26, 2012 in Education Law | Permalink | Comments (2)

Thursday, December 13, 2012

No legal obligation to initiate disciplinary charges against an individual

Decisions of the Commissioner of Education, Decision #16,427
A tenured high school teacher alleged that the high school superintendent neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against the principal of the high school at which he was serving.
The teacher alleged that he reported the school’s principal for alleged violations including failure to identify at-risk students as required by Title I of the federal Elementary and Secondary Education Act (20 USC §6301, et seq.) and scoring irregularities on New York State Regents mathematics examinations.
Following his reporting these alleged violations, the teacher claimed that the principal retaliated against him by [1] placing several disciplinary letters in his personnel file, [2] his being ordered to undergo medical examination and [3] his removal from the school to a “temporary assignment center.”*
The teacher asked the Commissioner to remove the high school superintendent and the Chancellor of the New York City Department of Education from their respective positions because they failed to take disciplinary action against the principal.
After considering a number of procedural issued, the Commissioner said that the teacher’s application “must be dismissed on the merits.”
The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer 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 Commissioner of Education.
The teacher alleged that the high school superintendent “neglected her duty to ensure the integrity of the school system by failing to initiate disciplinary charges against [the principal].” However, said the Commissioner, the teacher s failed to meet his burden of proof as he did not establish how the superintendent’s failure to file an Education Law §3020-a charge against the principal, at his request, constituted a willful violation or neglect of duty under the Education Law, requiring her removal under Education Law §306 nor did the teacher show that the superintendent “was under a legal obligation to initiate Education Law §3020-a charges against [the principal].”
The Commissioner ruled that “On the record before me, I find that [the teacher] has failed to demonstrate that [the high school superintendent] has willfully neglected her duties [and] failed to establish any basis for [the superintendent’s] removal” and denied the teacher’s application.
* The teacher was later restored to service at the school..
The decision is posted on the Internet at:

Reprinted by permission

New York Public Personnel Law

Mitchell H. Rubinstein

December 13, 2012 in Education Law | Permalink | Comments (0)