Appeal of M.E.K., on behalf of her daughter S.A., from action of the Board of Education of the East Hampton Union Free School District and Director of Pupil Personnel Cindy Allentuck regarding complaints.

Decision No. 16,988

(October 31, 2016)

Frazer & Feldman, LLP, attorneys for the respondent, Jonathan Heidelberger, Esq., of counsel

Elia, Commissioner.--Petitioner appeals the determination of the Board of Education of the East Hampton Union Free School District (“respondent board”) regarding her complaints that her daughter has been “assaulted, harassed and/or menaced” by another student.  The appeal must be dismissed.

During the 2015-2016 school year, petitioner’s daughter attended elementary school in respondent board’s district.  Petitioner made several complaints to district staff alleging that her daughter had been “assaulted, harassed and/or menaced” by another student.  In her complaints, petitioner also “demanded” that respondent board either remove the student from her daughter’s classroom or provide the student with a “full-time teacher/aide” to ensure that the student was never left unattended.

By letter dated March 16, 2016, the director of pupil personnel services (“respondent Allentuck”) notified petitioner that, in accordance with district policy, she had investigated petitioner’s complaints of bullying[1].  The investigation included a meeting with petitioner and her daughter as well as interviews of classroom teachers[2], the school nurse, cafeteria and recess monitors, other adults present when the alleged incidents occurred and a student identified by petitioner as having witnessed one of the alleged incidents.  Based on the results of the investigation, respondent Allentuck determined that all of petitioner’s allegations were unfounded.  Further, petitioner was advised that the parents of the student, who was the subject of petitioner’s complaints, have made their own complaint to the district alleging that petitioner’s daughter has harassed and bullied their son.  The letter states that their complaint would also be investigated.  This appeal ensued.

Petitioner argues that respondents have “retaliated” against her daughter by “blaming her and further accusing her of laughing at, ridiculing, and provoking the violent student.”  She also argues that respondent’s investigation of a complaint against her daughter was only initiated after petitioner informed respondent board of her intention to commence legal action if the other student was not removed from her daughter’s class, contacted the police department, and notified the parents of the other student of her allegations and planned actions. 

As relief, petitioner requests that I overturn respondent’s March 16, 2016 determination and find “in favor of [her daughter] as to the truth of the allegations.”  She also requests that I “restore [her daughter’s record] to one in which she is not accused of misconduct.”  She seeks an order immediately removing the other student from her daughter’s class or an order requiring assignment of “full-time teacher/aide” to the student for the remainder of the 2015-2016 school and for the entire 2016-2017 school year.  Finally, petitioner requests that I “sanction, censure, or otherwise reprimand” respondents for their “dereliction of duty and wilful [sic] misconduct in failing properly to investigate this matter and for willfully retaliating” against her daughter.

Respondents assert that the appeal must be dismissed for failure to join a necessary party and that petitioner lacks standing to seek to compel disciplinary action against another student, demand a change in placement for another student or to require another student to have a one-to-one aide.  Further, respondents maintain that I lack jurisdiction to: complete an investigation to decide whether petitioner’s daughter was telling the truth; order a change in a student’s placement, impose discipline; sanction or reprimand either respondent; or to grant any of the relief sought by petitioner.  Additionally, respondents argue that petitioner fails to demonstrate a clear legal right to the relief requested or to establish facts sufficient to form a basis for the relief sought and that the determination appealed from is not arbitrary or capricious.

First, 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.

To the extent that petitioner seeks relief for the 2015-2016 school year, the appeal must be dismissed as moot.  The petition did not include a stay request and the 2015-2016 school year ended shortly after the record on appeal was complete.  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).

Respondent argues that petitioner lacks standing to seek to compel disciplinary action against another student, demand a change in placement for another student or to require another student to have a one-to-one aide.  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).  I decline to dismiss the appeal for lack of standing.  Petitioner has alleged sufficient facts that her daughter has been aggrieved.

However, to the extent that petitioner seeks a determination “as to the truth of [her daughter’s] allegations of the violent, harassing, and menacing acts perpetrated by the violent student upon her and others,” an order immediately removing the other student from her daughter’s class or an order requiring assignment of “full-time teacher/aide” to the student, the appeal must be dismissed for failure to join a necessary party.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  A decision in favor of petitioner would clearly affect the other student.  As such, petitioner was required to name the other student (and his/her parent[s] or person[s] in parental relation) as a respondent and personally serve the other student with a copy of the petition and notice of petition (see Appeal of J.T. and M.T., 40 Ed Dept Rep 683, Decision No. 14,583).

Moreover, to the extent petitioner requests removal of the student from her daughter’s class or assignment of a one-to-one aide, the appeal must be dismissed for lack of subject matter jurisdiction.  Petitioner is essentially challenging the appropriateness of the other student’s special education program and placement.  However, pursuant to the Individuals with Disabilities Education Act (“IDEA”) and Education Law, Article 89, the identification, evaluation, review and recommendation of and appropriate educational placement and services for students with disabilities is the responsibility of the school district Committee of Special Education (20 USC §1414; Education Law §4402[3]).  Accordingly, such claims may not be addressed in an appeal brought pursuant to Education Law §310 and may only be addressed through the IDEA and its due process provisions (see e.g., Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,911.

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).

In light of the above disposition, I need not address the parties' remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE

[1] Respondent states that since petitioner did not assert that any of the actions of the other student were motivated by her daughter’s race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex, that her complaint did not allege a violation of the Dignity for All Students Act (“DASA”). I note in this regard that DASA (Education Law §11[7] defines bullying and harassment as conduct that shall include, but not be limited to), those acts based on a person's  actual  or  perceived  race,  color,  weight, national origin, ethnic  group,  religion,   religious   practice,   disability,   sexual orientation, gender or sex.  Regardless, in this appeal respondent asserts that it investigated petitioner’s complaint under the board’s bullying policy and petitioner does not allege any specific violation of DASA.