Who Has the Authority to Diacontinue Services of a Probationary Special Education Teacher ?
In Lehman v. Board of Education 82 A.D.2d 832, 439 N.Y.S.2d 670 (2nd Dep't 1981), a probationary special education teacher was discontinued by a decision of the superintendent, despite a chancellor's Special Circular which stated that the final recommendation for discontinuance of a probationary teacher must be made by the "Executive Director of DSEPPS".
The Second Department held that the Special Circular had established a "rule or regulation" which created a substantial right for the probationary teacher and the Board was bound by it.
That decision is inapplicable in the instant case because the the Principal Performance Review ("PPR") does not create substantial rights for principals but rather provides a flexible framework or guide for enforcement of the principals' right to an annual evaluation.
The requirement discussed in Lehman that a final decision be made by a particular official allowed for no flexibility in its enforcement.
It was to be followed "without regard to other facts and circumstances relevant to the regulatory scheme of the statute it administers".