How do I take my child's school district to court (NY)?

Question

I received an emailed letter from the superintendent of my child's school district, notifying me that I am prohibited from entering my child's school without a prior appointment. Failure to comply with the prohibition will be considered trespassing. I suspect the decision is retaliation for my special education advocacy. The decision was based on my supposedly having gone to a teacher's classroom before school, without signing in, to talk with the teacher. In fact, I signed in, and went to the teacher's room to ask him to contact me at his earliest convenience. But there had already been a warning letter a few weeks ago (because I signed in and went to the nurse's office to ask the nurse to notify me in future when my child makes a non-routine visit to the school Health Office, e.g. after a sprain in P.E.). In neither case was I threatening or disruptive. (However, that doesn't prevent these people from claiming that they felt intimidated, and once they start talking about feeling intimidated, then they start talking about feeling threatened, as though those were exact synonyms.)

I can file a "310" appeal to the state Commissioner of Education; however, this is slow. There is a backlog. Note there is a 30 day statute of limitations and the burden of proof would be on me to show that the superintendent acted arbitrarily and capriciously. Here's the FAQ. There is a page about stays.

I am aware that I can file a complaint with the Dept of Ed Office for Civil Rights (OCR), but they have an even worse backlog and this option would be even slower.

The FAQ say one can go to court instead. I would like to consider the option of going to court instead, but I don't know where to start. What would be the jurisdiction? What would my court action be called (some sort of "suit" perhaps)? Where do I find instructions? Would court be quicker than 310? How does the degree of difficulty of proving one's case compare? What about affidavits and witnesses -- how does that compare? What would a court case cost? (310 is free, I believe.)

If you only have a partial answer, that's okay, any info you can share would be appreciated.

In both cases I would proceed without a lawyer.

Answer 1

This would be virtually impossible to do from scratch. If you had the guidance of someone who successfully pursued a similar legal action it might be possible.

In theory you should be able to pursue grievances in court by becoming well versed in the applicable laws and rules, having impeccable attention to detail, exceptional deductive and writing skills, and getting lucky enough to run your filings through patient clerks who will tell you every time you're missing something or doing something wrong.

New York Courts even offer this encouraging CourtHelp website for pro se guidance on common actions.

But if you really want to attempt a pro se civil action, especially against a government entity, or other entity with essentially unlimited legal funds, you not only need all of the above but also some sort of assistance from somebody who knows the system. I would spend as much time looking for sympathetic advocacy groups and lawyers offering pro bono service as I would reading relevant law and procedure.

(One more thing: The word "quick" is never used in conjunction with formal legal actions, except in jest ;)

Answer 2

New York Courts even offer this encouraging CourtHelp website for pro se guidance on common actions. (posted by @feetwet)

This got me unstuck. I found that page rather overwhelming, but I went to their contact page. I followed the simple instructions there, and emailed my question to [email protected]. I emailed them in the evening, and by 9:15 the next morning, I had their answer, succinct, helpful and polite!

Thank you for your email to the NYS Unified Court System’s web site. Please contact your local Supreme Court and inquire about an Article 78. Again, thank you.

I called my county Supreme Court clerk. Since I was able to tell her which law was underpinning my contemplated action, she was able to guide me in finding the correct forms to use, while still following her mandate not to give legal advice. She told me which fields to leave blank, and helped me figure out which parts of my story would go in which fields in the form.

Now, here's the answer to my original question:

You can bring a "Special Proceeding" in your local Supreme Court (see How to Commence a Special Proceeding). There are PDF-fillable forms available at https://www.nycourts.gov/courts/6jd/forms/SRForms/index.shtml (look under "Special Proceedings"). The basic form is the Verified Petition.

This seems to be quicker than a 310 appeal. The clerk said I would likely get a court date within a month and a half. Also, she said it would not be an all-day affair or even a half-day affair -- she said I'd probably be in and out in less than an hour.

If you want the prohibition (ban) lifted right away, while waiting for the court date, you can request that, using a form for "show cause": https://www.nycourts.gov/courts/6jd/forms/SRForms/sp_oshow.pdf

The fee was a little over $300 but you can ask the judge to order the school district to reimburse you for the fee. (Important note: no guarantee of success.)

There a few little additional details, such as finding someone over 18 to serve papers to the district, but the court clerk made everything manageable and understandable. She also reassured me that the judges are accustomed to working with citizens who appear pro se.