Appeal of V.S., on behalf of her daughter P.S., from action of the Board of Education of the Lakeland Central School District regarding complaints of bullying and discrimination.

Decision No. 17,508

(September 24, 2018)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the actions of the Board of Education of the Lakeland Central School District (“respondent”) regarding its response to allegations that her daughter (“the student”) was subjected to bullying, harassment and discrimination during the 2013-2014 school year in violation of the Dignity for All Students Act (“DASA”; Education Law, Article 2).  The appeal must be dismissed.

The record indicates that the student began attending respondent’s schools in October 2013.  Shortly thereafter, a school district employee, who was a mandated reporter of suspected child abuse to Child Protective Services (“CPS”), saw the student walking to the nurse’s office with a mark on her arm.  The student allegedly told the employee that the mark occurred when petitioner hit the student in the arm with a spoon.  The employee reported the incident to CPS on November 1, 2013.  CPS investigated and found the complaint of abuse to be unfounded on December 13, 2013.

In March 2014, petitioner requested a copy of respondent’s policy for “handling suspected child abuse,” and subsequently received a copy of respondent’s policy on child abuse in a domestic setting.  The record also indicates that beginning in or about March 2014, petitioner corresponded with the superintendent and the student’s teacher regarding various concerns, including that the student was not informed of upcoming tests; that the principal told the student’s teacher not to communicate with petitioner; and that petitioner was not invited to Parent Teacher Association events. 

On April 3, 2014, petitioner met with the superintendent and alleged that school employees were discriminating against and bullying her and the student.  According to petitioner, she informed the superintendent that behaviors at the elementary school were discriminatory, including the 2013 CPS report.  She also expressed her observations that the school bus monitors and student helpers were “all white and usually not looking at us kindly” and that St. Patrick’s Day was the “only cultural holiday recognized, celebrated and held in reverence by the school.”  Petitioner claims that, after this meeting, she noticed a “change in the children allowed to be bus monitors,” but that “[n]othing more was addressed.”

According to petitioner, in April 2014 she also contacted the employee responsible for compliance with Title VI of the Civil Rights Act of 1964[1] (“Title VI officer”) at the school regarding her allegations, “because it was the only official contact [she] could find in the handbook.”[2]  Respondent asserts that such contact occurred via phone call between petitioner and the Title VI coordinator, during which petitioner claimed that she was not provided information about the school upon enrollment in October 2013; that the principal and assistant principal made “no effort to establish congeniality”; that the November 2013 CPS report was unfounded and was made in violation of respondent’s policies; and that the student was being discriminated against by not being allowed to study for a test and being dismissed before other students in a way that prevented her from leaving the building with other students. 

The record indicates that respondent’s Title VI officer thereafter conducted an investigation of petitioner’s complaints.[3]  In a report dated May 5, 2014, the Title VI officer deemed petitioner’s complaints unsubstantiated.  The Title VI officer conveyed her findings to petitioner in a letter dated May 9, 2014, which explained that her investigation of the matter included interviews with the principal and one of the student’s teachers, as well as a review of correspondence from petitioner and board policies on child abuse, maltreatment or neglect in a domestic setting.  The Title VI officer’s findings that no discrimination occurred included the following:  that petitioner had been provided with the same packet of enrollment information that is provided to all other parents and, in an email to the assistant principal, petitioner had expressed appreciation for the “warm welcome” she received at the school; that all of the district’s second grade teachers use the same practice and protocol for testing and study time; that respondent’s policy regarding CPS reporting was followed; and that the dismissal procedure used at the school is that students are called to the “pick-up room” and are escorted out by their parents while the remaining students are dismissed grade-by-grade. 

In June 2014, petitioner alleged that there were cameras in the school bathrooms and communicated her concern to the school.  While school employees denied this allegation and invited petitioner to see the bathrooms herself, petitioner kept the student out of school for three days based upon her concerns.  Respondent made a second referral to CPS on June 10, 2014 based on petitioner’s refusal to send her daughter to school for those three days.  On June 11, 2014, petitioner and a caseworker from CPS came to the school to view the bathrooms.  The bathrooms did not contain cameras. 

The record also indicates that in or about June 2014, petitioner sent a series of emails alleging that respondent’s school bus drivers were “stalking her” and illegally parking in a church parking lot by her house in order to observe her.  Respondent’s supervisor of transportation (“supervisor”) investigated these claims and found them to be without merit.  The supervisor informed petitioner that respondent had an agreement with the church for the buses to park in the church lot.  The supervisor also received reports from bus drivers that petitioner was sitting in a car taking pictures of them.  The local police department was called to intervene on numerous occasions.  This appeal ensued.

Although the petition is not entirely clear, petitioner appears to allege that, after the district reported the mark on the student’s arm to CPS, school district employees bullied and harassed her and the student.  Petitioner also claims that district employees have failed to respond to her complaints and refused to provide assistance to the student in the classroom.  Petitioner appears to allege that the Title VI coordinator failed to investigate or refer her claims regarding bullying and harassment under DASA to the district’s DASA coordinator.  Petitioner also alleges that, once the DASA coordinator became involved in the matter, he conducted and concluded his investigation “without investigating the reported bullying/harassment or interviewing my daughter” and that after she met with him on May 30, 2014 to discuss the “incident for investigation,” he “refused to accept what [was] being reported.”

Petitioner seeks the following relief: (1) implementation of instructional requirements that support development of a school environment free of harassment, bullying and/or discrimination as required by 8 NYCRR §100.2(c)(2); (2) “that the school will ensure a safe and supportive environment for all students”; (3) academic relief concerning her daughter (namely, “[r]eassessment” of the student's academic skills; an “[a]ssurance that her child will be allowed to study before unit tests”; information on “available programs” at the school “that the student may have missed”; and “placement” of the student “in the third grade with a [different] teacher”); (3) “[t]o appeal records in my daughters [sic] file”; and (4) “[o]ne or two contacts at the school for [her] daughter to turn to.”

Respondent contends that the appeal must be dismissed as petitioner’s claims are untimely and the relief requested is outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  Respondent also argues that the appeal must be dismissed because the petition does not contain an original signature by petitioner and the notary public and, instead, was signed electronically.  Respondent further contends that, even if petitioner’s claims could be considered, petitioner has not met her burden of proving a clear legal right to her requested relief. 

First, I must address several procedural matters.  Petitioner submitted a reply.  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 answers.[4]

Next, respondent claims that the petition must be dismissed because petitioner signed it electronically.  New York State Technology Law §304(2) governs the use of electronic signatures and provides that, unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand, and the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand.  Section 275.4 of the Commissioner’s regulations requires that the names of parties or attorneys be “endorsed” on all papers; however, the regulation does not define the word “endorsed” nor does it explicitly prohibit the use of electronic signatures.  I additionally note that General Construction Law §46 indicates that a broad range of marks may serve as acceptable forms of a signature, including:

[A]ny memorandum, mark or sign, written, printed, stamped, photographed, engraved or otherwise placed upon any instrument or writing with intent to execute or authenticate such instrument or writing. 

Therefore, considering the permissive scope of the State Technology Law and the General Construction Law concerning signatures, I decline to dismiss the petition for lack of original signatures (Appeal of R.E. and J.E., 58 Ed Dept Rep, Decision No. 17,438).

With respect to respondent’s objection to the notary’s use of an electronic signature, I note that the Appellate Division has held that the New York State Legislature “appear[s] to have chosen to incorporate the substantive terms of E–SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law” (Martin v. Portexit Corp., 98 AD3d 63; quoting Naldi v. Grunberg, 80 AD3d 1, lv. denied 16 NY3d 711).  Section 7001(g) of E-SIGN provides that:

If a statute, regulation, or other rule of law requires a signature or record relating to a transaction in or affecting interstate or foreign commerce to be notarized, acknowledged, verified, or made under oath, that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included by other applicable statute, regulation, or rule of law, is attached to or logically associated with the signature or record.

Here, the notary’s “Certificate of Acknowledgement” on petitioner’s verification states that petitioner “personally appeared” before her and “proved to [her] on the basis of satisfactory evidence to be the person whose name is subscribed to the within instrument ....”  Respondent submits no evidence to contradict this evidence.  Therefore, there is no basis in the record upon which to deem the notary’s electronic signature invalid under the circumstances.

Respondent also argues that the appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  As noted above, the petition is not entirely clear as to petitioner’s factual allegations and claims.  However, to the extent petitioner attempts to challenge actions by respondent that occurred more than 30 days prior to the commencement of this appeal on June 30, 2014, including any claims related to petitioner’s April and May 2014 complaints to respondent and the Title VI officer’s May 9, 2014 letter, such claims are untimely and must be dismissed. 

In addition, several of petitioner’s claims must be dismissed for lack of jurisdiction.  To the extent petitioner challenges the Title VI officer’s conclusion or alleges a violation of Title VI, an appeal pursuant to Education Law §310 is not the proper forum to adjudicate claims under Title VI of the Civil Rights Act of 1964 (Appeal of A.M., 56 Ed Dept Rep, Decision No. 16,974; Appeal of Cartagena, 43 id. 267, Decision No. 14,991).  Therefore, to the extent that petitioner seeks relief based on violations of Title VI, such claims are dismissed.

Petitioner also seeks to “appeal records in [her] daughter[’]s file.”  To the extent that petitioner is asserting a claim under the Family Educational Rights and Privacy Act (“FERPA”), the Commissioner lacks jurisdiction to consider FERPA claims.  The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]; 34 CFR Part 99; Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611; Appeal of G.H.L., 46 id. 571, Decision No. 15,598; Appeal of R.J.M., 46 id. 286, Decision No. 15,509).  Likewise, to the extent petitioner intends to assert claims under New York’s Freedom of Information Law (“FOIL”), Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of H.A., 57 Ed Dept Rep, Decision No. 17,215; Appeal of Olka, 48 id. 10, Decision No. 15,776; Application of Gentile, 47 id. 438, Decision No. 15,747).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

Petitioner’s remaining claims 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

To the extent petitioner claims that she was precluded from filing a DASA complaint because respondent’s “student handbook” makes no mention of a DASA coordinator in violation of DASA, such claim lacks merit.  Section 100.2(jj)(4)(vii) of the Commissioner’s regulations mandates that the name, designated school and contact information of the DASA coordinator must be included in, among other places, a district’s code of conduct.  In its verified answer, respondent asserts that its policies on DASA, sexual harassment and bias harassment are included in its code of conduct, which is part of the handbook.  Petitioner has not submitted a copy of respondent’s code of conduct or any other evidence to refute respondent’s assertions and, therefore, she has not carried her burden of proof with respect to this claim (see Appeal of S.U., 57 Ed Dept Rep, Decision No. 17,159).[5]  I further note that the record indicates that petitioner was aware of the DASA coordinator’s identity when, as she admits in her petition, she discussed “the incident for investigation” with him on May 30, 2014.  On this record, therefore, I find petitioner’s allegation that she was precluded from filing a DASA complaint to be without merit.

Petitioner has also failed to meet her burden of establishing a clear legal right to an order directing respondent to implement the instructional requirements prescribed by 8 NYCRR §100.2(c)(2).  Section 100.2(c)(2) requires that public schools provide instruction that supports development of a school environment free of harassment, bullying and/or discrimination as required by DASA and that such instruction be provided as part of a component of civility, citizenship and character education required by Education Law §801-a.  Petitioner has neither alleged nor proven in her petition that respondent is not providing such required instruction or that there are deficiencies any such instruction being provided — she merely makes a conclusory request for relief that implies that respondent is not implementing such instructional requirements.  Respondent, on the other hand, has attached to its answer documentation that its Positive Behavioral Intervention and Supports (“PBIS”) Program/Character Education Themes include a DASA theme, with among other things, character education book selections and related instruction regarding bullying and civility, a conflict resolution program, and a PTA-sponsored annual family event highlighting student cultures.  In her reply, petitioner makes a conclusory allegation that respondent’s PBIS program does not incorporate the instruction required by 8 NYCRR §100.2(c)(2), but has provided no specific explanation of why she believes the PBIS instruction to be inadequate and has provided no proof that respondent has violated 8 NYCRR §100.2(c)(2).  Therefore, petitioner has failed to carry her burden of proof with respect to this claim. 

With respect to petitioner’s contentions that respondent failed to address her claims of bullying and harassment under DASA and has failed to ensure a safe and supportive environment for all students, I find that she has similarly failed to carry her burden of proof on this record.  As noted above, petitioner’s claims regarding the Title VI officer’s investigation and findings must be dismissed as untimely and for lack of jurisdiction.  However, petitioner admits in her petition that she also discussed the “incident for investigation” with the DASA coordinator on May 30, 2014 and states that “an investigation was concluded without investigating the reported bullying/harassment or interviewing my daughter.”  In its verified answer, respondent asserts that the DASA coordinator did attempt to conduct an investigation, despite petitioner’s lack of cooperation. 

In this regard, I also note that petitioner further states that the “basis of [the DASA coordinator’s] investigation is still unknown to me,” although, as noted, she also states that she discussed “the incident for investigation with [the DASA coordinator] on May 30, 2014” and that he “refused to accept what [was] being reported.”  While respondent appears to have provided petitioner with a DASA incident reporting form and, at a minimum, attempted to conduct an investigation of petitioner’s claims, the record contains no evidence that such investigation was actually completed or that any findings were communicated to petitioner.  I remind respondent of its obligations in this regard (see Education Law §13[1]). 

Petitioner has further failed to establish that any district officer or employee bullied or harassed the student.  Other than her conclusory assertions, the only evidence offered by petitioner in support of her claims are emails and documents in which she reiterates the same claims made in her petition.  Respondent denies these claims, and has submitted affidavits from the superintendent, the student’s second-grade teacher and respondent’s supervisor of transportation who deny petitioner’s claims.  Therefore, petitioner has failed to meet her burden of proof and her claims that respondent’s officers or employees bullied or harassed the student or otherwise violated DASA must be dismissed.

Petitioner’s claims concerning the student’s academic or classroom performance must also be dismissed as petitioner has failed to meet her burden of proving a clear legal right to the requested relief.  Specifically, petitioner has not proven any facts suggesting that the student must be “[r]eassess[ed]” or that the student was not allowed to study before tests.  Petitioner has also failed to explain how or why she is entitled to receive “information on available programs at the school and restitution of programs, benefits and services that may have been missed,” or that respondent denied her or the student access to any such programs or to information related thereto.  Similarly, there is no basis in the record upon which to grant petitioner’s request that the student be assigned a third-grade teacher “who will be happier with the students and congenial to student engagement”; in any event, this claim is moot, as the school year in which the student attended third grade has ended.  Finally, petitioner has not explained how or why the student requires, or why respondent would be required to provide, one or two contacts at school for her daughter “to turn to.”  In this respect, the record reflects that district employees, including the student’s teacher, attempted to and/or did provide assistance to the student during the 2013-2014 school year, and there is no basis on this record to find that respondent’s employees were unwilling or unable to assist the student.

I have considered petitioner’s remaining contentions and find them to be without merit.  Although the appeal must be dismissed, I note that nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment and bullying in public schools.

THE APPEAL IS DISMISSED.

END OF FILE