Appeal of C.B., on behalf of her child, from action of the Board of Education of the City School District of the City of Oneida regarding student bullying.

Decision No. 18,238

(February 8, 2023)

Tully Rinckey PLLC, attorneys for petitioner, Amanda L. Smith and Sara E. Furlow, Esqs., of counsel

Ferrara Fiorenza, P.C., attorneys for respondent, Lindsay A.G. Plantholt, Esq., of counsel

ROSA., Commissioner.--Petitioner, on behalf of her child (the “student”), appeals from a determination of the Board of Education of the City School District of the City of Oneida (“respondent”) regarding the Dignity for All Students Act (“DASA”).[1]  The appeal must be dismissed.

The student attended respondent’s middle school during the 2021-2022 school year.  In January 2022, the student requested a meeting to resolve a conflict between herself and other district students (“student A” and “student B”).  During this meeting, student B struck the student and student A attempted to kick or trip the student.  Five days later, on January 12, 2022, district representatives met with all three students and had each student complete a “No Bullying/Stay Away Contract.”  Respondent also altered the student’s schedule to minimize her contact with students A and B. 

On January 20, 2022, the student reported that student B made a comment in the hallway that the student was a “boyfriend stealer.”  The school’s dean of students investigated the incident by interviewing student B and other witnesses, who denied that any such comment was made.

In February 2022, pursuant to petitioner’s request, the student was temporarily placed in a virtual learning program through a Board of Cooperative Educational Services (“BOCES”).  When the student returned to in-person learning approximately 10 days later, she began regularly meeting with the school’s social worker for extra support.

On March 18, 2022, another district student (“student C”) attacked[2] the student.  Student C was arrested.  On March 21, 2022, the middle school principal met with the student and her parents to discuss ways that the school could help the student feel safer in her learning environment.  Respondent offered to change the student’s schedule, have an adult escort her to class, and permit her to leave and arrive early to classes to feel safer.  The parents declined these options.  The parties agreed, however, that the student would receive one-on-one tutoring with a teacher after the normal school day.  The student also began attending classes in a hybrid (virtual and in-person) model. 

By letter dated March 31, 2022, petitioner requested that respondent conduct an investigation into alleged bullying and harassment of the student.  In addition to the events described above, the letter indicated that the student had been harassed outside of school hours online and by phone.  

In April 2022, petitioner applied for the student’s admission to a nonpublic school.  The student was accepted to the school for the 2022-2023 school year.[3]

By letter dated May 25, 2022, respondent indicated that it had investigated petitioner’s claims of bullying and harassment.  Respondent recounted the remedial measures detailed above as well as the steps it had taken to prevent future incidents.  Respondent further indicated that certain other acts of harassment “occurred outside of the school environment” and, in any event, were uncorroborated.  This appeal ensued. 

Petitioner argues that respondent’s failure to prevent harassment and bullying, multiple class schedule changes, and the need for virtual instruction resulted in the denial of the student’s right to a free and appropriate public education.  Petitioner seeks an order directing respondent to (1) conduct a DASA investigation, (2) schedule a meeting of its committee on special education (“CSE”) to discuss the student’s educational placement, (3) provide compensatory services, and (4) reimburse petitioner for the application fee and tuition to the nonpublic school. 

Respondent argues that the petition must be dismissed as untimely and moot.  Respondent also contends that the Commissioner lacks jurisdiction to award compensatory services or financial reimbursement.  On the merits, respondent contends that petitioner has failed to meet her burden of proof.

Initially, respondent argues that the appeal is untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or 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).  Respondent contends that the appeal is untimely because the alleged incidents occurred more than 30 days before the commencement of the instant appeal on June 24, 2022.  However, respondent did not respond to petitioner’s request for a DASA investigation until its May 25, 2022 letter, and this appeal was timely taken therefrom.  This appeal is distinguishable from the decision cited by respondent, Appeal of D.D. and L.D. (58 Ed Dept Rep, Decision No. 17,516), which involved a request for reconsideration of a previous DASA decision.  Here, as respondent acknowledges, petitioner did not request a DASA investigation until March 31, 2022.  Thus, respondent’s May 25, 2022 determination constituted a final decision that petitioner was entitled to appeal within 30 days (8 NYCRR 275.16).

Petitioner’s request for compensatory services and a CSE meeting must be dismissed for lack of jurisdiction.  The record reflects that, at the time of the events described herein, the student received services pursuant to the Individuals with Disabilities Education Act (IDEA).  Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC § 1415), Education Law § 4404, and section 200.5 (j) of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500).[4]

Petitioner’s requests for monetary damages in the form of fees and tuition paid to the nonpublic school must be dismissed.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law § 310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

Turning to the merits, DASA 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]).  Such a hostile environment may be created where bullying or harassment:

(a) has or would have the effect of unreasonably and substantially interfering with a student's educational performance, opportunities or benefits, or mental, emotional or physical well-being; or

(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or

(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student; or

(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.

A district’s DASA determination will be reversed only upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

On this record, I find that respondent reasonably responded to petitioner’s allegations of bullying and harassment.  With respect to the conduct at the January 2022 meeting and the attack in March 2022, the record shows that respondent promptly took remedial action to protect the student in school and prevent future bullying or harassment by ensuring that each student entered into a no bullying contract, adjusting the student’s schedule, and offering additional supports to the student.  Additionally, there is no evidence that respondent knew or should have known that any animosity existed between the student and student C prior to the attack.

As to the allegations of verbal harassment that “occurred outside the school environment,” respondent found these allegations without merit or outside the scope of the school environment.  Respondent further indicated that the student admitted “that she did not notify the District of th[is] harassment,” which prevented the district from “tak[ing] steps to intervene.”  Petitioner presents no evidence to the contrary on appeal.  Thus, I find no basis in the record to direct respondent to conduct an additional investigation, as requested.

However, I remind respondent that it is obligated to address all bullying and harassment that “occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment ...”  (Education Law § 11 [7] [d]).  Respondent’s May 25, 2022 letter suggests otherwise, stating, for example, that “much of the harassment has occurred outside of the school environment”; that the district “cannot control what happens outside of school or on social media”; and that the school resource officer could not address “action taking place at or near [the student’s] house” because it was “outside his jurisdiction.”  Bullying and harassment does not respect jurisdictional lines.  That means that respondent, by itself or through its school resource officer, must assist parents in navigating any practical or jurisdictional hurdles that may exist.

THE APPEAL IS DISMISSED.

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