Madera v. Board of Education of City of New York Brief in Opposition to Petition for Certiorari

    (39044)

I n  t h e

(£mvt of %  Inttsb Stairs
OCTOBER TERM, 1967

No. 1203

V ictor Madera, R amiro Madera, Manuela Madera, and all 
other persons similarly situated,

Petitioners,
v.

B oard of E ducation of the City of New Y ork, B ernard 
E. Donovan as Superintendent of Schools of the City of 
New York, T heresa R akow as District Superintendent 
of Public Schools for District One in the City of New 
York,

Respondents.

BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI

J. L ee R ankin, 
Corporation Coimsel of the 

City of New York, 
Attorney for Respondents, 

Municipal Building, 
Borough of Manhattan, 

New York, New York 10007.
Stanley B uchsbaum,
J ohn J. Loflin,
L uis M. Neco,

of Counsel.

249 Press o f Fremont Payne, Inc., 80 Washington St., N. Y .— BOwling Green 9-8153



TABLE OF CONTENTS

PAGE

Statement .........................    1

Question Presented .........................      2

Facts ................................................................................. 3

The Decisions B elow ..................................   6

Point I—The nature of the guidance conference is 
informal and not adversary. Legal counsel under 
these circumstances is not required..........................  8

P oint II—The exclusion of attorneys f  rom participa­
tion in a guidance conferences does not violate 
the requirements of due process of la w ..............  10
A. Guidance conference procedure...................... 10
B. The requirements of due p rocess ..................  U
C. There is no due process requirement for

counsel at an informal proceeding such as a 
suspension guidance conference ....................  13

D. Review proceeding available to set aside the
results of a guidance conference .................. 14

Conclusion ......................................................................... 17

T able  oe A u t h o r it ie s

Cases:
Application of Olson, 40 Mise 2d 246, 242 N.Y.S. 2d

1002 (1963 )....................................................................  15
Cafeteria and Restaurant Workers Union v. McElroy,

367 IT. S. 886, 81 S. Ct. 1743, 6 L. ed. 2d 1230



11 TABLE OF CONTENTS

PAGE

(1961) ...............    12
Cosme v. Board of Education, 50 Mise 2d 344, 270

N.Y.S. 2d 231 (1966) ................................................  16
Escobedo v. Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12

L. ed. 2d 977 (1964) .................................................. 14
Escoe v. Zerbst, 259 U. S. 490, 55 S. Ct. 818, 79 L. ed.

1560 (1935) ...............................................................  12
Garrity v. New Jersey, 385 II. S. 493, 87 S. Ct. 616,

16 L. ed. 2d 205 (1967) ..........................................  14
Hannah v. Larche, 363 U. S. 420, SO S. Ct. 1502, 4 L.

ed. 2d 1307 (1960) ...................................................  12
In re Gault, 387 TJ. S. 1, 87 S. Ct. 1428, 18 L. ed. 2d 

527 (1967) .................................................................  11
In re Groban, 352 11. S. 330, 77 S. Ct. 510, 1 L. ed. 2d

376 (1957) .......................................................... . ...1 3 ,1 6
Kent v. United States, 383 IT. S. 541, 80 S. Ct. 1045,

16 L. ed. 2d 84 (1966) .............................................  11
Matter of Sheffel, 73 N. Y. St. Dept. Rep. 1 0 4 .......... 15
Matter of Yonkes, 78 N. Y. St. Dept. Rep. 6 6 ........... . 15
Miranda v. Arizona, 384 U. S. 436, 86 S. Ct. 1602, 16

L. ed. 2d 694 (1966) .....................................    14
O’Brien v. Commissioner of Education, 4 N Y  2d 140,

173 N.Y.S. 2d 265,149 N. E. 2d 705 (1958 )..........  15
Palko v. Connecticut, 302 U. S. 319, 58 S. Ct. 149, S2

L. ed. 288 (1937) .....................................................  13
Powell v. Alabama, 287 U. S. 45, 53 S. Ct. 55, 77 L. ed.

158 (1932) .................................................................  13
Prentiss v. Atlantic Coast Line, 211 U. S. 210, 29 S.

Ct. 67, 53 L. ed. 150 (1908) .....................................  12



PAGE

Reaves v. Ainsworth, 219 IT. S. 296, 31 S. Ct. 230, 55
L. ed. 225 (1911) .....................................................  12

Spevack v. Klein, 385 U. S. 511, 87 S. Ct. 625, 17 L.
ed. 2d 574 (1967) .....................................................  14

Statutes:
New York Education Law sec. 3 1 0 ...............................14,15
New York Education Law sec. 311 .............................. 14,15
New York Education Law sec. 3214.............................. 14
New York Family Court Act sec. 7 4 1 .......................... 14
New York Family Court Act sec. 744 .......................... 14
New York Family Court Act sec. 758 ..........................  14
New York Civil Practice Law and Buies, Article 78

(§§ 7801-7806) ...........................................................  16

Rules and Procedure:
New York City Board of Education, General Circular

No. 16 ......................................................................... 4

TABUS OF CONTENTS 111



Ik the

B>upnw (tart at %  lutteb Blalra
OCTOBER TERM, 1967

No. 1203

V ictor Madera, R amiro Madera, Manuela M adera, and all 
other persons similarly situated,

Petitioners,
v.

B oard of E ducation of the City of New Y ork, B ernard
E. Donovan as Superintendent of Schools of the City of 
New York, T heresa R akow as District Superintendent 
of Public Schools for District One in the City of New 
York,

Respondents.

------------------- ♦----------------------

BRIEF IN OPPOSITION TO PETITION 
FOR CERTIORARI

Statement

Petitioners seek a writ of certiorari to review a judg­
ment of the United States Court of Appeals for the Second 
Circuit entered on December 6,1967. That judgment unan­
imously reversed a judgment of the United States District 
Court for the Southern District of New York (M otley, J.), 
vacated an injunction granted in that court and dismissed 
the complaint.



2

Question Presented

Every school system must face the problem presented 
by children who fail to make an adequate emotional ad­
justment to the requirements of group education. Dis­
ruptive behaviour by one child can halt the education of 
an entire class. Victor Madera became a behaviour prob­
lem to the point where his principal suspended him and 
referred the question of Victor’s educational difficulty to 
the District Superintendent. Victor and his parents were 
requested to attend a guidance conference where, with the 
aid of an advisor of their choice, they could discuss Vic­
tor ’s problems with school officials and plan the next phase 
of his education. The Board of Education does not con­
sider the conference to be adversary in nature and, hence, 
does not include attorneys among those invited to attend. 
Social workers, psychologists or religious counsellors would 
be welcomed to assist the student and his parents in the 
conference. The object of the conference is to find an 
answer to the student’s behavioral problem and provide 
an educational environment where he can progress, more 
effectively.

As a result of the conference the following decisions 
may be reached: (1) the student may be reinstated in the 
same school, (2) he may be transferred to another school 
of the same type, (3) with his parents’ consent, he may 
be transferred to a special school for socially maladjusted 
children, (4) the student may be referred to the Bureau of 
Child Guidance for psychiatric or psychological assistance 
or to some other social agency for study and recommenda­
tion, or (5) where truancy is in question, the matter may 
be referred to the Bureau of Attendance for court action.

The parents of Victor Madera asked to be represented 
by an attorney when they were requested to attend a con­
ference with school officials concerning their son. In ac­
cord with the policy of the Board of Education that the



3

conference should not be adversary in form or substance, 
the request was denied.

Thus the question is posed: Do students and parents 
have a constitutional right to be represented by counsel 
at a guidance conference?

Facts

When this proceeding was commenced in the United 
States District Court for the Southern District of New 
York, petitioner Victor Madera was a 14-year-old student 
in the seventh grade in Junior High School No. 22, Dis­
trict No. 1 of the New York City public school system. 
Victor had experienced serious behavioral difficulties in 
school over a period of more than a year (R94-98).*

Ultimately, Victor’s principal decided that suspension 
was warranted. The principal of a school is authorized 
to suspend a pupil for a period of not more than five days 
during which time he reports the child’s status to the Dis­
trict Superintendent, his superior. If the child is not re­
stored to regular classes within the five-day period, it is 
the obligation of the District Superintendent to schedule 
a Guidance Conference for the purpose of considering the 
status of the child and making a determination as to the 
appropriate educational assignment deemed best in the 
light of the personal needs and abilities of the student 
(R70-81).

In this case, pursuant to the regular practice, the par­
ents were notified to attend a conference in the District 
Superintendent’s office. They sought legal counsel, and 
petitioners’ present counsel, the legal division of Mobiliza­
tion For Youth, asked to appear on behalf of Mr. and Mrs. 
Madera and their son. This request was denied in accord-

* Unless otherwise stated all numbers in parentheses refer to 
pages in the Record filed with the United States Court of Appeals 
for the Second Circuit.



4

anee with the provisions of Circular No. 16, dated April 
18, 1966, which sets forth the procedure to be followed by 
District School Superintendents in conducting guidance 
conferences for suspended students (R70-80). Plaintiffs 
then sought and obtained an injunction from the District 
Court staying the guidance conference until the question 
of their right to counsel could be determined.*

Counsel are precluded from attending guidance confer­
ences for policy reasons set forth in Circular No. 16 as 
follows:

“ Inasmuch as this is a guidance conference for the 
purpose of providing an opportunity for parents, 
teachers, counselors, supervisors, et al. to plan edu­
cationally for the benefit of the child, attorneys seek­
ing to represent the parent or the child may not par­
ticipate.”  (App. c of Petition, 74a)

The participation of the parents, however, is most de­
sirable. The Circular states, “ Every effort should be 
made to secure the parent’s attendance”  {Id. at 75a). In 
addition, the parents may be accompanied and assisted by 
persons of their choosing including social workers, friends, 
translators, etc., so long as those persons are not attorneys.

As a result of the conference the district superintendent 
may reinstate the student in his same school, transfer him 
to another school, refer him for placement in a school for 
socially maladjusted children, refer him to the Bureau of 
Child Guidance or other suitable agency for study and 
recommendations, including medical suspension, home in­
struction, exemption or, where truancy is a problem, re­
fer him to the Bureau of Attendance for court action 
(R79).

* Because of the injunction and the subsequent appeal, in order 
to make sure that Victor Madera’s education was continued, he was 
first put on home instruction and later transferred to another school 
o f the same type as the one in which he was originally enrolled.



5

The Bureau of Child Guidance is the clinical arm of the 
school board and is brought into use when professional 
psychological or psychiatric assistance in diagnosis ap­
pears helpful (R230-251).

The Bureau of Attendance acts in cases of truancy to 
see that children and parents comply with the compulsory 
attendance provisions of the Education Law (R251-257, 
281-285).

It should be noted that district superintendents do not 
have power to exempt a child from attending school; this 
is reserved to the Superintendent of Schools and is rarely 
used (R79, 81, 224).

The purpose of the guidance conference was set forth in 
the affidavit of Bernard E. Donovan, Superintendent of 
Schools, as follows:

“ The sole purpose of the conference is to study the 
facts and circumstances surrounding the temporary 
suspension of this student by his school principal, and 
to place the child in a more productive educational 
situation. At these conferences the assistant super­
intendent interviews the child, his parents and school 
personnel to learn the cause of the child’s behavior. 
The conference is conducted in an atmosphere of un­
derstanding and cooperation, in a joint effort involv­
ing the parent, the school, guidance personnel and 
community and religious agencies. There is never any 
element of the punitive, but rather an emphasis on 
finding a solution to the problem.

After a full and careful study and discussion a plan 
is formulated to deal more adequately with the prob­
lems presented by the child. Every effort is bent 
towards the maintenance of a guidance approach. The 
emphasis is on returning the child as rapidly as pos­
sible to an educational setting calculated to be most 
useful to him.”  (R89-90)



6

No one within the entire structure of the Board of 
Education has the power to deprive a child of his freedom 
by confinement or commitment to an institution (R90, 242, 
245, 247, 249, 250, 300, 322). Such matters are left to the 
courts where the right of counsel is not questioned.

The Decisions Below

The essence of the District Court’s decision was ex­
pressed as follows (41a-42a):

“ As a result of a review of the testimony, exhibits 
and records produced by the District Superintendent, 
this court finds that a ‘ Guidance Conference’ can 
ultimately result in loss of personal liberty to a child 
or in a suspension which is the functional equivalent 
of his expulsion from the public schools or in a with­
drawal of his right to attend the public schools.

This court also finds that as a result of a ‘ Guidance 
Conference’, adult plaintiffs may be in jeopardy of 
being proceeded against in a child neglect proceeding- 
in the Family Court.

For the foregoing reasons, this court concludes that 
the due process clause of the Fourteenth Amendment 
to the Federal Constitution is applicable to a District 
Superintendent’s Guidance Conference. More specifi­
cally, this court concludes that enforcement by defend­
ants of the ‘ no attorneys provision’ of Circular No. 
16 deprives plaintiffs of their right to a hearing in 
a state initiated proceeding which puts in jeopardy the 
minor plaintiff’s liberty and right to attend the public 
schools.”

In reversing the District Court the Circuit Court stated 
(23a-24a):

“ The conference is not a judicial or even a quasi­
judicial hearing. Neither the child nor his parents



7

are being accused. In saying that the provision 
against the presence of an attorney for the pupil in a 
District Superintendent’s Guidance Conference ‘ re­
sults in depriving plaintiffs of their constitutionally 
protected right to a hearing’ (267 F. Supp. at 373), the 
trial court misconceives the function of the conference 
and the role which the participants therein play with 
respect to the education and the welfare of the child. 
Law and order in the classroom should be the respon­
sibility of our respective educational systems. The 
courts should not usurp this function and t e n  dis­
ciplinary problems, involving suspensions, into crim­
inal adversary proceedings—which they definitely are 
not. The rules, regulations, procedures and practices 
disclosed on this record evince a high regard for the 
best interest and welfare of the child. The courts 
would do well to recognize this.”

[N ote : In their appeal to the Circuit Court the respond­
ents raised issues relating to the conduct of the trial and 
rulings of the District Court as follows:

1. The District Court refused to permit counsel for de­
fendant to inspect Court ’s Exhibit 21, a student’s suspense 
file, for purposes of cross-examining a witness who had 
described the exhibit at length in response to questions by 
the Court (E274-275).

2. After the trial was over, the District Court, on its 
own motion, added 23 new exhibits (also suspense files) 
to the record without affording defendants an opportunity 
to object to their introduction or to examine witnesses 
concerning them (K47).

3. On the last day of trial, at the close of plaintiffs’ 
case, the District Court granted plaintiffs’ motion to 
convert the suit into a class action. The class was never



8

adequately defined nor was there any notice given to any 
member of the class however defined (E317, 319).

In light of the decision by the Circuit Court it was un­
necessary for these matters to be ruled upon. However, 
should this Court grant certiorari in this case, respondents 
wish to preserve their rights to present all issues raised 
on their appeal to the Circuit Court.]

POINT I

The nature of the guidance conference is informal 
and not adversary. Legal counsel under these circum­
stances is not required.

Petitioners stress the problems facing the urban poor 
community and the effective assistance provided by or­
ganizations such as Mobilization for Youth. They conclude 
however that the unique skills of an attorney become nec­
essary in a non-adversary meeting—a guidance confer­
ence-even though the same organization could and in fact 
does have social workers who are welcome to attend. Their 
argument assumes that the interests of the school system 
and the children in it are adverse. They disregard one of 
the basic postulates of public school education— that teach­
ers, counsellors, students and parents are mutually inter­
dependent and should work cooperatively toward the goals 
of education for all children. There is nothing in the 
training of attorneys that makes them uniquely qualified 
to assist in this process.

There are about 28,000 children in Victor Madera’s 
school district. Of these, about 150 were suspended pending 
appropriate action pursuant to the district superinten­
dent’s guidance conference in the past two years. Some 
of these students moved away, were unable for medical 
reasons to resume their education or passed the age for 
compulsory education and did not wish to resume. For



9

the great majority, however, the suspension was a tempo­
rary interruption but not a termination of their education.

The loss of education, of course, for even one student 
is regrettable. Unfortunately, however, there are a few 
students that do not adjust to sehool environment, even 
with extensive professional help. The percentage of 
students for whom a guidance conference becomes neces­
sary is small. The percentage of those who do not return 
to a class as a result of action taken at a guidance con­
ference is extremely small compared to the student body 
as a whole.

Respondents do not suggest, however, that the answers 
to the questions raised here can be found in the statistics 
of pupil suspensions. Rather it is the nature of the educa­
tional process and the proper relation between the schools 
and the pupils that must be considered in the search for 
a solution. These factors are in areas of policy where 
precedent is not conclusive. If incarceration were truly 
the question, as suggested by the district court below (41a), 
the answer would be simpler. The district superintendent, 
however, has no power to confine the child—this power is 
reserved to the courts. Nor does the district superinten­
dent have power to adjudicate any charges against the 
parents. This too is reserved for the courts.

The professional competence needed to deal wisely and 
fairly with suspended students is found in various dis­
ciplines including education, guidance counselling, social 
work, psychology and psychiatry. The implications of 
this suit are that the members of the Board of Education’s 
staff, professionally trained in these areas, are in reality 
opposed in interest to the students they are attempting 
to instruct or assist. On this assumption petitioners claim 
a lawyer is essential at the guidance conference to defend 
the suspended child. This approach will not help either 
the child or the school.



10

The exclusion of lawyers is based on both practical and 
policy considerations growing out of the need for deci­
sions to be made by people properly trained and authorized 
to make them and the belief that educational values will 
suffer in an adversary proceeding.

While this case tends to focus solely on the individual 
child on suspension, the needs of the student body as a 
whole should not be ignored. A  disturbed, disruptive child 
needs help, but those in classes with him, including his 
teachers, also have rights, and these include the right to 
go about their work without excessive disturbances ox- 
threats to their safety. This does not mean that respond­
ents claim the right to ignore the needs of difficult chil­
dren. The record here shows the varied and extensive 
facilities and professional services set up solely to assist 
them.

Under the present system if the educators fail and reach 
an arbitrary or unwarranted decision, the student is not 
without relief. There can be appeals to the Commissioner 
of Education or a review by an Article 78 proceeding in 
the Supreme Court of New York—both with the right of 
counsel. In this way errors can be corrected, when a right 
to relief is shown, without taking over the internal opera­
tions of the schools.

Due pi-oeess requires no more than the right of counsel 
where appropriate. There is no showing that counsel at 
a guidance conference is required.

POINT II

The exclusion of attorneys from participation in a 
guidance conference does not violate the requirements 
of due process of law.

A. Guidance conference procedure.

The day a student is suspended by the principal a letter 
is sent to his parents notifying them of the suspension and



11

advising them that a guidance conference will be held soon 
thereafter (R168). A copy of the principal’s letter is also 
sent to the Assistant Superintendent, who then sends a 
letter to the parents notifying them of the date of the con­
ference and asking them to be present. (See Appendix C, 
68a-77a.) At the conference, as District Superintendent 
Rakow testified:

“ No decision is made until the parent and child have
participated.”  (R228)

Not only are great efforts made to have the parents ap­
pear, but they may bring with them social workers famil­
iar with the situation and a translator if necessary. The 
Board also will supply a translator if advised that the 
parents do not speak English. The conference, in short, is 
an attempt by qualified educators and guidance counsellors, 
working together with a child, his parents and interested 
outside social workers, to find the best educational answer 
for a student with a behavioral problem.

The Court of Appeals correctly distinguished between 
judicial due process required at formal proceedings and 
the non-judicial due process required in an informal pro­
ceeding such as a guidance conference.

B. The requirements of due process.

The essentials of due process required in a criminal or 
civil judicial proceeding are well established and include 
at least the following: (1) proper notice, (2) an impartial 
hearing, (3) the right to confront and cross-examine ad­
verse witnesses, (4) the right to summon witnesses and 
offer evidence, (5) the privilege against self incrimination, 
and (6) the right to be represented by counsel. This is 
especially so where the proceedings may terminate in in­
carceration. In Re Gault, 387 U. S. 1 (1967); Kent v. 
United States, 383 U. S. 541 (1966). The question is



1 2

whether such requirements must he included in an in­
formal guidance conference where the purpose of the con­
ference is to determine how best to meet the educational 
needs of the pupil.

It is axiomatic that “ the requirements of due process 
frequently vary with the proceeding involved . . . ”
Hannah v. Larche, 363 U. S. 420, 440 (1960), and “ what 
is due process of law must be determined by circum­
stances.”  (Reaves v. Ainsworth, 219 U. S. 296, 304 
[1911].)

There is a clear distinction between a judicial hearing 
and an informal proceeding. “ A judicial inquiry investi­
gates, declares and enforces liabilities as they stand on 
present or past facts and under laws supposed already to 
exist. That is its purpose and end.”  (Prentiss v. Atlantic 
Coast Line, 211 U. S. 210, 226 [1908].) Where, however, 
the occasion calls for a proceeding less formal than a judi­
cial inquiry, it should “ be so fitted in its range to the 
needs of the occasion.”  (Escoe v. Zerbst, 295 U. S. 490, 
493 [1935].)

As this Court declared in Cafeteria and Restaurant 
Workers Union v. McElroy, 367 U. S. 886, 894-895 (1961):

“ The Fifth Amendment does not require a trial-type 
hearing in every conceivable ease of government im­
pairment of private interest. * * * The very nature of 
due process negates any concept of inflexible proce­
dures applicable to every imaginable situation, [cita­
tions omitted] ‘ “  [D]ue process” , unlike some legal 
rules is not a technical conception with fixed content 
unrelated to time, place and circumstances.’ It is 
‘ compounded of history, reason, the past course of 
decisions * # Joint Anti-Fascist Refugee Com­
mittee v. McGrath, 341 U. S. 123, 162-163 (concurring 
opinion). ”



13

C. There is no due process requirement for counsel at an 
informal proceeding such as a suspension guidance con­
ference.

Informal proceedings on matters of importance under 
many conditions comply with the requirements of “ due 
process”  without representation by counsel.

The need for counsel varies with the nature of the pro­
ceeding. In re Groban, 352 U. S. 330 (1957).

Where due process does require counsel it is because 
“ the benefit of counsel . . . [is] essential to the substance 
of the hearing.”  Palho v. Connecticut, 302 U. S. 319, 327 
(1937). The nature of the proceeding must determine 
whether “ under the circumstances the necessity of coun­
sel . .  . [is] vital and imperative . . . ”  Powell v. Ala­
bama, 287 U. S. 45, 71 (1932). The Court here must look 
to the substance of the proceeding to determine if the 
student “ requires the guiding hand of counsel at every 
step in the proceeding . . . ”  Powell v. Alabama, supra, 
287 U. S. at p. 69.

Is there a need for the attorney’s skills at the guidance 
conference! There is no adversary. No attorney is pres­
ent for the Board of Education. There is no prosecutor, 
no judge, no jury and there are no complex rules of 
procedure. Cf. Powell v. Alabama, supra. There are 
no witnesses to be examined under oath. Formal rules 
of evidence are not applied. None of these, however, 
are essential to a concept of fundamental fairness under 
the circumstances. To hold that the right of represen­
tation by counsel is essential must eventually involve the 
federal courts in a continuing and expanding supervision 
of the guidance conference to determine, at each juncture, 
whether, and which specifics of the Fifth and Sixth 
Amendments are also essential.

If the professional conclusion is that the student should 
be transferred to a parental school or to an institution



14

either for reason of physical or mental health or other rea­
sons, the transfer may only be accomplished with the con­
sent of the parents or by court order.*

No school official has this authority (Education Law 
§ 3214). At this stage the parent may refuse such consent 
in which event the child may not be transferred without 
a judicial proceeding in the Family Court (Family Court 
Act § 758). The right to representation by counsel is guar­
anteed at that proceeding {id., §741), and the Court may 
consider no evidence that is not “ competent, material and 
relevant . . . ”  (id., §744). In addition, as pointed out in 
the Circuit Court decision (8a), it is clear that statements 
made by the student or his parents at the guidance con­
ference could not be introduced into evidence in any sub­
sequent court proceedings. Cf. Garrity v. New Jersey, 385 
IT. S. 493 (1967); Spevack v. Klein, 385 U. S. 511 (1967); 
Miranda v. Arizona, 384 IT. S. 436 (1966); Escobedo v. 
Illinois, 378 U. S. 478 (1964).

Thus, it appears that neither actual need nor due process 
requires representation by counsel at the guidance con­
ference. Lawyers are usually not trained as social workers, 
educators, guidance counselors or psychologists. I f  the 
guidance conference should be turned into an adversary 
proceeding, a lawyer should attend, perhaps for both 
‘ ‘ sides, ’ ’ and hearing officers should be appointed to preside 
and make the necessary rulings. Respondents believe this 
approach is both unnecessary and unwise when viewed 
from the point of view of the student, his parents or the. 
school system.

D. Review proceedings are available to set aside the results 
of a guidance conference.

Sections 310 and 311 of the New York Education Law 
provide for a review on appeal to the Commissioner of

* O f course, prior to determining whether to consent or not 
the parent may seek the advice of counsel.



15

Education in the case of any child or parent aggrieved by 
the actions of any school authority including cases where a 
child is suspended.

Pursuant to Section 310 the Commissioner of Education 
has heard a number of cases involving the suspension of 
students from school. Matter of SJieffel, 73 N. Y. St. Dept. 
Rep. 104; Matter of Yonkes, 78 N. Y. St, Dept. Rep. 66; 
Application of Olson, 40 Misc 2d 246, 242 N.Y.S. 2d 1002, 
1003 (Sup. Ct., Nassau Co., 1963). At hearings dealing with 
suspension of a student from class which may involve dis­
puted issues of fact, the Commissioner of Education would 
be required to conduct a judicial hearing “ according to 
procedure which satisfied the rudiments of due process 
of law . . . ”  O’Brien v. Commissioner of Education, 4 
N Y 2d 140, 146, 149 N. E. 2d 705 (1958) (concurring 
opinion of Judge Van Voorhis). Thus, at that hearing 
the student and his parents have the right to be repre­
sented by counsel. Prior to or during the hearing the 
Commissioner could stay the suspension or other action of 
the school authorities (Education Law §311 [2]).*
Following the hearing he may “ make all orders . . . which 
may, in his judgment be proper or necessary to give effect 
to his decision”  (Education Law §311 [4]).

The fact that a formal hearing with counsel is afforded 
by the Commissioner and not at the guidance conference 
does not violate due process.

Where, as here, the guidance conference gives the 
student notice and a full opportunity to be heard in an 
informal non-judicial setting and where there is a statutory 
system for a petition or appeal to the Commissioner of 
Education with all the safeguards of a judicial proceeding,

* While rightfully concerned that some students remained sus­
pended for lengthy periods o f time, the petitioners and the District 
Court fail to recognize that by petition or appeal to the Com­
missioner o f Education the student may obtain a stay of the sus­
pension pending the Commissioner’s determination.



16

representation by counsel should not be required at the 
conference. The presence of an attorney could in fact “ so 
far encumber the . . . proceeding as to make it unworkable 
or unwieldy”  (In re Grobcm, supra, at p. 334), and ob­
struct the very aim of the guidance conference which is 
to provide for the continuing education of the student.

As an alternative to an appeal to the Commissioner 
of Education, a person aggrieved by acts of the Board of 
Education may have a prompt review in the New York 
State Supreme Court in an Article 78 proceeding (New 
York Civil Practice Law and Rules, Section 7801-7806).

An Article 78 proceeding may be, and frequently is, com­
menced by service of an order to show cause and a petition. 
The court, of course, may include a stay of administrative 
action pending determination of the matter by the court.

This procedure was followed in a suspense ease very 
similar to this. Cosme v. Board of Education, 50 Misc 2d 
344, 270 N.Y.S. 2d 231 (1966), affirmed without opinion, 27 
A  D 2d 905 (1st Dept. 1967). The lower court in Cosme 
held that legal counsel was not required at a guidance 
conference and stated (270 N.Y.S. 2d at p. 232):

“ These hearings are simple interviews or confer­
ences which include school officials and the child’s 
parents. Further, they are purely administrative in 
nature, and are never punitive. The parents are 
fully apprised of all of the facts and are furnished 
with copies of all information in respondent’s pos­
session.”

By constitutional standards of due process there is no 
right to an attorney at the conference. By simpler stand­
ards of policy there is no need for an attorney at the 
conference. The school system of New York City has 
many problems— some of them severe—but it does not fol­
low that the solutions will come by extending the right



17

of counsel into areas of educational planning regarding the 
best method of dealing with and providing an education for 
a child with a behavioral problem. School officials can be 
held to account for any unlawful decisions they may make 
or unlawful practices they may adopt, but the day to day 
operations of the schools should not be conducted as quasi­
judicial proceedings. The work of the schools must con­
tinue. Individual rights must be protected. The present 
system affords a constitutional and practical balance of 
the interests of both. Thus there is no need for a further 
review of this ease. The Court of Appeals for the Second 
Circuit carefully considered each of petitioners’ conten­
tions and held that the present practice does not deprive 
students or their parents of due process of law. Peti­
tioners have failed to show any error in the analysis of 
the Circuit Court which would warrant granting a writ 
of certiorari.

CONCLUSION

The petition for a writ of certiorari should be denied.

April 5, 1968.

Respectfully submitted,

J. Lee Rankin,
•Corporation Counsel of 
the City of New York, 

Attorney for Respondents.

Stanley B uchsbatjm, 
J ohn J. L oflin,
L uis M. Neco,

of Counsel.



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