Appeal of D.S., on behalf of his child, from action of the Board of Education of the Onteora Central School District regarding the Dignity for All Students Act.

Decision No. 18,073

(January 24, 2022)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Steven L. Banks and Gregory R. Picciano, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals from a determination by the Board of Education of the Onteora Central School District (“respondent”) that certain actions against his child (“the student”) did not constitute bullying or harassment pursuant to the Dignity for All Students Act (“DASA”).  The appeal must be dismissed.

The student attends school in respondent’s district.  During the events described in this appeal, the New York State Department of Health required that all students wear facial coverings while riding school buses.  This requirement was described in respondent’s reopening plan for the 2020-2021 school year.[1]

On October 1, 2020, petitioner refused to allow his child to wear a mask before boarding the school bus.  Thus, the bus driver refused her entry.  Later that morning, the principal of the student’s school building learned that petitioner was upset and planned to park in the school’s front entrance where buses drop off students.  Given the potential safety risk, the principal contacted the school’s school resource officer (“SRO”).  The SRO was unavailable, however, so the principal contacted the police.

The principal indicates in an affidavit that, later that morning, he observed a police officer and petitioner engaged in a “civil conversation.”  After the principal joined the conversation, petitioner expressed “concerns about the health of children who wear face masks all day in school and on the bus.”  The principal explained that this was required by the school’s reopening plan.  Petitioner requested a copy of the plan, which the principal agreed to provide.  When asked if he planned to suspend the student, the principal responded that “his goal was to get her into school and learning.”  The student, who accompanied petitioner, accepted and wore a mask before proceeding to class.

Petitioner sent an email the following morning asserting, among other things, that the student was “not capable of wearing a mask for over 20 minutes straight because it is damaging to her physical and mental health.”  He further asserted that the student would “be at the bus stop this morning, without a mask.”  That morning the student was again refused entry onto the bus.

The principal learned that petitioner planned to come to the school again.  The principal again contacted the SRO, who arrived at the school and spoke with petitioner.  As she had the previous day, the student accepted and wore a mask before proceeding to class.

In the late afternoon, the superintendent responded to petitioner’s email.  She wrote:

Dear [petitioner], please know that your daughter is required to wear a mask on the bus.  If she boards the bus and refuses to don her mask, we may have no option but to suspend her for insubordination.  As you are aware, your daughter wears the mask in school, and on the bus ride at the end of the day.  We hope that you will reconsider this situation and discuss it with your daughter so that she can be transported safely pursuant to the District’s reopening plan.

In subsequent communications, petitioner continued to assert that the student was medically unable to tolerate a mask.  On October 4, 2020, the superintendent asked petitioner to “provide a medical exemption from [the student’s] pediatrician if [he or she] has determined that [the student] is unable to medically tolerate a face mask.”  She reiterated that “refusal to wear a mask may result in suspension.”

On October 13, 2020, petitioner filed a DASA complaint against the superintendent.  Petitioner requested that the superintendent be “disciplined” for her communications to him indicating that failing to wear a mask could result in suspension.

Respondent reviewed petitioner’s DASA complaint in executive session in October and November 2020.  In a written determination dated November 13, 2020, respondent concluded that the student had not been subjected to bullying or harassment in violation of DASA because:

• The superintendent communicated directly with petitioner, not the student;
• The intent of the superintendent’s communication was to convey the gravity of intentionally disregarding the mask requirement;
• The student was not subjected to any adverse consequences for her conduct; and
• Petitioner did not produce any evidence that the student was entitled to a medical exemption.

This appeal ensued.

Petitioner asserts that the superintendent acted with intent “to intimidate [the student] and her family.”  He further suggests that the principal contacted the SRO to bully or harass him.  Petitioner requests that I impose “discipline” upon the superintendent.

Respondent contends that its determination was rational and based on the evidence before it.

First, I must address two preliminary matters.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Additionally, I have no jurisdiction to impose discipline upon the superintendent.  Superintendents are appointed, and subject to removal, by boards of education (see Education Law §§ 1711, 2507).  While the Commissioner may remove superintendents under Education Law § 306, petitioner has not complied with the requirements applicable to such an application (e.g. 8 NYCRR 277.1).  As such, I have no authority to impose discipline upon the superintendent.

Turning to petitioner’s appeal of respondent’s DASA determination, the Dignity for All Students Act prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).

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).

I hereby affirm respondent’s determination.  Petitioner offers no evidence to support his suggestion that the superintendent warned him of potential disciplinary consequences “to intimidate [the student] and her family.”  The superintendent was within her right to stress the importance of following school rules, including the mask requirement. 

Additionally, the record does not support petitioner’s contention that the SRO “was inappropriately dispatched in regards to [his] questions about the mask break policy.”  As explained above, the principal contacted the SRO and law enforcement based upon petitioner’s avowed intent to visit the school and park in a location where buses drop students off.  I further note that, on October 2, 2020, a source informed the principal that petitioner was “hot and angry.”  Regardless of the truth of these assertions, I find that the principal’s decision to request the SRO’s presence was reasonable.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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