Appeal of M.D., on behalf of N.D., J.D., J.B., T.L., K.L., E.B., P.F., J.B., et al, from action of the Board of Education of the Three Village Central School District regarding the Dignity for All Students Act.

Decision No. 17,591

(February 22, 2019)

Baker Greenspan & Bernstein, attorneys for petitioner, Robert J. Bernstein, Jr., Esq., of counsel

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ELIA., Commissioner.--Petitioner challenges the actions of the Board of Education of the Three Village Central School District (“respondent”) related to its investigation and findings regarding allegations of bullying, harassment and discrimination against John Stecker, respondent’s Ward Melville High School Boys Varsity Soccer Coach (“the coach”).  The appeal must be dismissed.

Petitioner M.D. (“petitioner”) is the parent of N.D. and J.D. who, at the time of the facts giving rise to this appeal, were students attending respondent’s district and members of the Ward Melville High School Boys Varsity Soccer Team (“the team”).  According to petitioner, J.B., T.L., K.L., E.B., P.F., and J.B. are current or former students and members of the team.  The record indicates that the above-named students were among those who submitted a complaint to respondent pursuant to the Dignity for All Students Act (“DASA”) alleging acts of bullying, harassment and/or discrimination committed by the coach.  Respondent acknowledges receipt of the complaint on May 26, 2017.

The DASA complaint was submitted by several members of the team and their parents and contained several allegations of bullying, harassment and/or discrimination.  Generally, the complaint alleged that the coach was verbally abusive to players on and off of the field and that the coach often used profanity.  The complaint further alleged that the coach mocked students with asthma for their fitness level during tryouts and disregarded players’ safety by keeping players on the field during games after they had sustained injuries.

By letter dated July 20, 2017, respondent’s DASA Coordinator (“coordinator”) notified petitioner of respondent’s findings pursuant to the DASA investigation.  In the letter, the coordinator explained that the investigation included interviews of petitioner’s sons, staff members, students, potential witnesses and the coach.  The coordinator addressed each of the eight alleged DASA violations contained within the DASA complaint and concluded that there was insufficient evidence to substantiate seven of the eight alleged DASA violations.  The coordinator found that the allegations relating to the coach’s use of profanity during practices and games were substantiated by the investigation.  However, the coordinator found that although inappropriate, there was insufficient evidence to find that the use of the language constituted bullying and/or harassment under DASA or respondent’s DASA policy.  Nevertheless, the coordinator found that the use of profanity was inappropriate and a violation of respondent’s policies and Code of Conduct, and referred the matter to the administration for “appropriate remedial action.”  This appeal ensued.

Petitioner asserts that the investigation and the subsequent finding of no DASA violations were arbitrary and capricious.  Specifically, petitioner disputes the coordinator’s conclusions that there was insufficient evidence to find DASA violations and contends that such determinations were arbitrary and capricious.  For relief, petitioner seeks a determination that respondent’s investigation and conclusions regarding the alleged DASA violations were arbitrary and capricious.  Petitioner also seeks the removal of the coach as the varsity boys’ soccer coach and requests that he be barred from any such coaching position in the district, or that he be suspended for one season.  Alternatively, petitioner requests that the DASA complaint be remanded to respondent for further review, or that the coach be required to undergo training or that an individual be assigned to monitor the coach at tryouts, practices and games for three seasons.

Respondent asserts several affirmative defenses.  Respondent asserts that the petition should be dismissed for failure to state a claim upon which relief may be granted, failure to join a necessary party, failure to establish a clear legal right to the relief requested, failure to meet the burden to establish that respondent’s investigation was inadequate and/or that respondent’s determination lacked a rational basis and was arbitrary or capricious, failure to provide an Affidavit of Personal service as required by Commissioner’s regulation §§275.8 and 275.9, failure to meet the requirements of Commissioner’s regulation §275.2 for bringing an appeal on behalf of a class of individuals, improper verification in violation of Commissioner’s regulation §275.5, lack of standing to bring the appeal, as moot with respect to certain coaching practices which were discontinued in August 2015, as premature with respect to additional allegations of DASA violations, failure to exhaust administrative remedies, failure to state a claim with respect to discipline and/or reprimand of the coach, and that respondent complied with all rules and regulations governing DASA.

I must first address several procedural matters.  Petitioner purports to bring this appeal on behalf of his sons N.D. and J.D. as well as six other students named in the caption.  Petitioner further purports to bring the appeal on behalf of all of the students who signed the DASA complaint but who are not named in the caption.  Petitioner requests that the appeal be accepted as a class appeal pursuant to Commissioner’s regulation §275.2.

An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  On this record, petitioner has failed to establish the criteria for bringing an appeal on behalf of a class.  Petitioner merely states that several current and former soccer players signed the DASA complaint raising allegations of DASA violations by the coach.  Petitioner does not set forth the total number of students to be included in the class, nor does he show that all questions of law and fact are common to all such students.  In fact, the underlying DASA complaint contains allegations specific to individual students which are not common to every student who signed the complaint.  Petitioner only offers conclusory assertions that all such students were current and former soccer players, and as such equally affected by the alleged DASA violations.  As a result, I cannot consider this matter as a class appeal pursuant to Commissioner’s regulation §275.2 and class status is therefore denied.

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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioner asserts that he is the parent of N.D. and J.D.  However, to the extent that petitioner claims to bring this appeal on behalf of J.B., T.L., K.L., E.B., P.F., and J.B., the appeal must be dismissed.  While petitioner has standing to bring this appeal on behalf of his own children, he lacks standing to assert the rights of other students or parents (Appeal of Radford III and Jones, 57 Ed Dept Rep, Decision No. 17,283; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899).

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Respondent asserts that the appeal should be dismissed because the petition lacked an affidavit of personal service as required by §275.8(a).  However, the record in this appeal contains an affidavit of service filed by petitioner indicating proper service upon the district clerk.  Accordingly, I decline to dismiss the appeal for lack of proper service.

Next, respondent contends that the appeal must be dismissed because petitioner failed to join the coach, who is a necessary party to this appeal.  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

According to the record, petitioner only served a copy of the petition on respondent’s district clerk.  Moreover, petitioner did not name the coach in the caption of the appeal.  I agree with respondent that the coach is a necessary party to this appeal because as relief, petitioner seeks the removal of the coach as the varsity boys’ soccer coach and that he be barred from any such coaching position in the district, or that he be suspended as a coach for one season, or that he be required to undergo appropriate training or education, or that a monitor be assigned to the coach.  The coach’s rights would be adversely affected if this relief were granted (see Appeal of J.A., 58 Ed Dept Rep, Decision No. 17,522; Appeal of Trojahn, 57 id., Decision No. 17,360; Appeal of McCart, 49 id. 229, Decision No. 16,010).

To the extent that petitioner argues that the coach is not a necessary party because he is merely challenging the process and conclusions of respondent in conducting the DASA investigation, I find such contention without merit.  In addition to the above conditions requiring joinder of the coach, any such review of the DASA complaint, investigations or conclusions of the DASA coordinator would necessarily affect the rights of the coach.  Therefore, the appeal must be dismissed for failure to join the coach as a necessary party.

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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