Appeal of R.E., on behalf of his daughter E.E., from action of the Board of Education of the Victor Central School District, Superintendent Dawn Santiago-Marullo, Principal Yvonne O’Shea, Teacher Deborah McManis and Guidance Counselor Geoffrey Mandile, regarding student grading and the Dignity for All Students Act.

Decision No. 17,003

(November 22, 2016)

Harris Beach PLLC, attorneys for respondents, James A. Spitz Jr., Esq., of counsel

ELIA, Commissioner.--Petitioner appeals actions of the Board of Education of the Victor Central School District (“respondent” or “respondent board”) and certain school district employees (collectively “respondents”) regarding his daughter’s grade in English Literature and Composition 12 and alleges that the conduct of certain respondents in connection with that grade violated the Dignity for All Students Act (“DASA”).[1]  The appeal must be dismissed.

During the 2014-2015 school year, petitioner’s daughter, E.E. (the “student”), was a senior in respondent’s district and was enrolled in AP/IB English Literature and Composition 12, a class taught by teacher Deborah McManis (“respondent McManis”).  Certain class assignments were required to be uploaded by a specific date and time to a website.

At issue in this appeal is an assignment, written analysis of a poem, that was due to be uploaded by 11:30 p.m. on October 27, 2014 (“assignment”).  When the student attempted to log on to the website to upload the assignment, she was prompted twice to change her password.  Eventually, she was able to successfully log in but, when she attempted to upload the assignment, she received a message stating that the due date had passed.  The student immediately emailed respondent McManis, explained the technical difficulties, and attached a screen shot of the website with the message that the assignment was late.  The screen shot notes the time as 11:30 p.m.  The student asked respondent McManis to accept the assignment.  In the event the paper was not accepted, the student asked for extra credit opportunities.  By email dated October 28, 2014, respondent McManis notified the student that the assignment was submitted late and therefore would not be accepted.

During early November 2014, the student met with the principal (“respondent O’Shea”) and guidance counselor (“respondent Mandile”) to discuss the late submission of the assignment.  By email dated November 12, 2014, respondent McManis informed the student that she would reconsider accepting, and grading, the late assignment and that the assignment would not be counted toward first quarter grades, instead would it be counted in second quarter grades.  It appears from the record that respondent McManus gave the student 50 percent of the points available for the essay portion of the assignment, and the subsequent investigation report conducted on behalf of respondent board indicates that the student was awarded full credit for the presentation portion of the assignment plus extra credit.  By email dated February 7, 2015, respondent McManis notified the student that her second quarter grade was a 95.

By letter dated September 2, 2015, petitioner wrote to the superintendent (“respondent Santiago-Marullo”) alleging that between “October 28, 2014 and March of 2015” the student was “harassed on multiple occasions” by school district staff.  He requested a meeting with respondent Santiago-Marullo and one was held on September 15, 2015.  During the meeting, petitioner was advised that his allegations would be investigated in accordance with DASA.  He was also invited to specify his concerns by completing the district’s conflict reporting form.  On October 8, 2015, petitioner submitted the conflict reporting form electronically and a letter with the same information by mail.  His correspondence alleged that respondents acted in a manner that was arbitrary and capricious and/or were remiss in their duties by declining to accept the student’s assignment.  He further alleged that the student was bullied, harassed, retaliated against, and otherwise mistreated in relation to the submission of the assignment.

Respondent board engaged an attorney to conduct an independent investigation of the allegations.  The investigation included a review of relevant documents, including letters, emails, and board policies, and interviews with five individuals, including petitioner.  On November 2, 2015, the attorney issued a written report to the superintendent and associate superintendent finding that no district employee was arbitrary and capricious and/or remiss in his/her duties by declining to accept the student’s assignment.  She further found that no violation of DASA or school policy had occurred.

By letter dated November 5, 2015, the associate superintendent notified petitioner of the findings and advised him of his right to appeal the decision, in accordance with district policy, to the district’s DASA review panel.  This appeal ensued.

Petitioner claims that respondents violated DASA based on their conduct in relation to the situation described above.  Specifically, he alleges that respondent McManis repeatedly berated the student for uploading her assignment late, that her interpretation of the assignment’s due date was “highly unreasonable and contemptuous” and that she demeaned the student by making her grovel “immediately and even months later.” He argues that the student felt “insulted” and “acutely distressed” by respondent McManis’s conduct.

With respect to respondent O’Shea, petitioner alleges that she was “severely remiss in her duties” and “failed to intervene to the extent necessary to remedy the situation....”  He claims that she was “contemptuous” toward the student, made her “feel like a criminal” and had her “begging for forgiveness.”  With respect to respondent Mandile, petitioner alleges that he “was remiss in his duties”, “disrespectful”, “failed to intervene” and supported respondent McManis’s “unreasonable assertions, thus reinforcing the trauma experienced by [the student].” Petitioner also asserts that certain statements contained in the findings from the DASA complaint investigation are incorrect.

As relief, petitioner requests a letter of apology from the three named respondents and that a teacher, unrelated to this matter, grade the content of the student’s assignment.  He further requests that such grade be substituted for the grade assessed by respondent McManis and that the student’s transcript be updated accordingly.

Respondents argue that the petition should be dismissed as untimely, that the appeal is moot, that petitioner lacks standing and has failed to exhaust administrative remedies.  Respondents further contend that DASA is not available as a means to challenge a student’s grade; the claims are barred under the doctrines of waiver, estoppel and laches; and petitioner has also failed to show that respondents’ determination or actions were arbitrary and capricious and that the relief requested is unavailable in an appeal to the Commissioner of Education.

Initially, I must address several procedural matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondents argue that the petition must be dismissed as untimely because petitioner was notified of the decision that the assignment was considered late in November 2014 and did not bring any concerns to the district until September and October 2015.  Respondents cite Appeal of Marino and Baselice (39 Ed Dept Rep 387, Decision No. 14,268) in support of their contention that petitioner “did not and cannot resurrect his untimely claims by requesting reconsideration.”

The record indicates that by letter dated September 2, 2015, petitioner notified respondent Santiago-Marullo that between October 28, 2014 and March of 2015 his daughter was “harassed on multiple occasions” by respondents McManis and O’Shea.  Petitioner states that he “attempt[ed] to resolve this matter, but to no avail” and requested a meeting “pursuant to the Dignity for All Students Act.” 

To the extent that petitioner is challenging the validity of the student’s grade, his appeal is untimely.  By email dated February 7, 2015, respondent McManis notified the student that her second quarter grade was a 95 and this appeal was not commenced until ten months later in December 2015.  In any event, I note that, it is well-settled that decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law §1709[3], Appeal of Jo, 44 Ed Dept Rep 198, Decision No. 15,147) and that, barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232).   

With respect to respondent’s claim regarding reconsideration, I find that respondents’ reliance on Appeal of Marino and Baselice, (39 Ed Dept Rep 387, Decision No. 14,268) is misplaced. Petitioner is not requesting reconsideration.  Instead, it appears that the petition is premised on an alleged violation of DASA and an appeal of respondent board’s investigative findings.  Petitioner commenced this appeal within thirty days of the November 5, 2015 notice of the findings of respondent board’s investigation.  Therefore, I decline to dismiss the appeal as untimely insofar as petitioner is claiming violations of DASA.

Respondents argue that DASA is not available as a means to challenge a student’s grade.  I note that while generally a complaint made pursuant to DASA is not a vehicle for challenging the validity of a grade, in certain circumstances a grade may be set aside if it was the product of discrimination, intimidation, taunting, harassment, and bullying.   

The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Respondents argue that the appeal is moot because the student has graduated from respondent’s high school and is no longer a student in respondent’s schools.  However, petitioner has specifically requested that respondent revise the student’s transcript.  Therefore, I decline to dismiss this matter as moot (Appeal of Schmitt, 39 Ed Dept Rep 617, Decision No. 14,329; Appeal of Marino and Baselice, 39 Ed Dept Rep 387, Decision No. 14,268).

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Respondents argue that petitioner, the student’s father, lacks standing because the student has graduated and no longer attends respondent’s schools.  Generally, the named petitioner in an appeal must be a person in parental relationship to the student unless the student is over age 18, in which case he or she can bring his or her own appeal. Petitioner alleges, and respondents do not refute, that the student was not yet 18 years of age at the commencement of this appeal and was, therefore unable to bring her own appeal.  Accordingly, I decline to dismiss the appeal for lack of standing.

Respondents argue that the appeal should be dismissed for failure to exhaust an administrative remedy.  As a prerequisite to appeal pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of Peppaceno, 55 Ed Dept Rep, Decision No. 16,807).  Here, the district’s November 5, 2015 determination letter advised petitioner that he “may” appeal the findings of the investigation and the district’s determination in accordance with its DASA “Appeal Protocol.”

There is no explicit provision in DASA which requires an appeal at the local level or exhaustion; however, there is also nothing in DASA which prevents a school district from promulgating a policy that requires exhaustion. Education Law §310 allows an appeal to the Commissioner from "any ... official act or decision of any officer, school authorities, or meetings concerning any other matter under [the Education Law]." Implicit in this language is the requirement that the "act or decision" to be challenged be the final determination by the school district. Indeed, finality is essential to avoid multi-level reviews and duplicative efforts at the State level. Thus, districts may impose, by properly codified rules, exhaustion requirements that are reasonable and consistent with the right of complainants under Education Law §310 to have disputes ultimately reviewed by the Commissioner (Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).

In this case, respondents have a policy which governs its DASA appeal process.  However, respondents’ policy is permissive, not mandatory, since it provides that parents and/or guardians “may” appeal to the DASA review panel.  Similarly, the appeal language in the district’s determination is also permissive and advises petitioner that he “may” appeal the determination (Appeal of Amara S., 39 Ed Dept Rep 90, Decision No. 14,182).  Therefore, I find that there was no board of education rule in effect which required exhaustion and I will not dismiss the appeal on that basis.       

Nevertheless, the appeal must be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). While petitioner may disagree with respondent’s November 5, 2015 determination that his DASA complaint was unfounded, he has not established that such determination was arbitrary or capricious, nor has he established that the student’s grade was the product of harassment, discrimination or bullying.  

Rather, the record indicates that, in conducting its investigation and making its determination, respondent engaged a third party investigator who reviewed numerous emails, created a timeline of events, conducted five interviews, including an interview with petitioner, and issued detailed findings addressing each alleged violation.  In support of the petition, petitioner submits several emails between the student and respondents.  The emails do not support petitioner’s contention that respondents bullied, harassed, discriminated and/or retaliated against the student.  To the contrary, the emails show that respondents thoughtfully implemented the assignment deadline, offered and awarded the student extra credit, and complimented the student.  The emails refer generally to the student’s “maturity,” “work ethic,” and “honest sincerity” and specifically to her handling of this situation as “show[ing] maturity in the face of great adversity,” “tak[ing] ownership of [her] mistakes,” and her “initiative.”   On this record, I find that petitioner has failed to meet his burden of proving that respondent’s determination that there was no violation of school policy or DASA was arbitrary and capricious. 

To the extent petitioner seeks an order publicly sanctioning, censuring or reprimanding respondents, there is no provision of the Education Law that would authorize the censure or reprimand of a board of education, its members or district staff (see Appeal of Formato, 55 Ed Dept Rep, Decision No. 16,855; Appeal of Coleman et al., 42 id. 256, Decision No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

THE APPEAL IS DIMISSED.

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