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Decision No. 18,451

Appeal of A.V.A., on behalf her child, from action of the Board of Education of the Remsenburg-Speonk Union Free School District regarding student bullying.

Decision No. 18,451

(July 29, 2024)

The Margiotta Law Firm, P.C., attorneys for petitioner, Paul J. Margiotta, Esq., of counsel

Volz and Vigliotta, PLLC, attorneys for respondent, Michael G. Vigliotta, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from a decision of the Board of Education of the Remsenburg-Speonk Union Free School District (“respondent”) concluding that their child (the “student”) was not subjected to bullying or harassment in violation of the Dignity for All Students Act (“Dignity Act,” Education Law, Article 2).  The appeal must be dismissed. 

On February 15, 2023, petitioner filed several Dignity Act complaints alleging, among other things, that the student was bullied or harassed by peers and district staff due to his medical condition.  Petitioner’s claims included events as far back as the 2018-19 school year.

Respondent retained an outside investigator to investigate the complaints.  By letter dated March 23, 2023, respondent’s investigator  concluded that there was insufficient evidence that the student had been bullied or harassed.

On March 31, 2023 petitioner submitted a written appeal of the investigator’s findings to the superintendent.  In a letter dated April 19, 2023, respondent informed petitioner that there was “no mechanism for an appeal” of the investigator’s findings.  This appeal ensued. 

Petitioner claims that respondent failed to sufficiently investigate her Dignity Act complaints.  Petitioner also contends that the investigator was insufficiently impartial. For relief, petitioner seeks a declaration that respondent’s determination was arbitrary or capricious.  Petitioner also seeks the removal of several school officers and employees.

Respondent contends that the petition should be dismissed as untimely.  On the merits, respondent maintains that it conducted a thorough investigation and reached a reasonable conclusion. 

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.

Next, respondent contends that the appeal must be dismissed as 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’s policy on student bullying and intervention is unclear as to whether internal appeals are permitted, or required, following the conclusion of a Dignity Act investigation.  As such, I find that petitioner reasonably attempted to appeal the investigator’s report to the superintendent and decline to dismiss the appeal as untimely (see Appeal of E.K., 63 Ed Dept Rep, Decision No. 18,377; Appeal of Kenton, 54 id., Decision No. 16,649).

Turning to the merits, the Dignity 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]).  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 ....[1]

A district’s Dignity Act determination will only be reversed 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). 

Petitioner has not shown that respondent’s Dignity Act determination was arbitrary or capricious.  The record reflects that respondent’s investigator interviewed eight witnesses from the district, including the superintendent, the director of student services, the student’s previous teachers and teacher aides, and the school building psychologist and Committee on Special Education chair.  The investigator also interviewed petitioner and the student’s father, discussing each issue raised in the Dignity Act complaint.   These interviews formed the basis of the investigator’s report.  Thus, contrary to petitioner’s claims, respondent’s investigation was thorough and based upon the evidence gathered during the investigation (see Appeal of D.B. and S.B., 63 Ed Dept Rep, Decision No. 18,348; Appeal of G.M., 62 id., Decision No. 18,257).[2]  Petitioner provides no evidence to support her claims that the investigator lacked independence or that his determination was unreasonable.[3]

Petitioner’s remaining claims must also be dismissed.  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]

Finally, respondent requests certification of good faith on behalf of any eligible individuals identified in the petition.  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in Education Law § 3811 (1).  The Commissioner will so certify unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Given my determination herein, respondent is entitled to the requested certification.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit. 

THE APPEAL IS DISMISSED.

END OF FILE

 

[1] The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11 [7] [d]).

 

[2] To the extent petitioner complains that the investigator erred by declining to interview certain students, the investigator explained that “interviewing students, especially those of such a tender age[,] could be quite traumatizing for them, especially if they were being accused of wrongdoing,” and that there was no guarantee that other students’ parents would cooperate with such an investigation.  The investigator also noted that the passage of time—in some instances, more than a year—would make it unlikely for students to remember the specific details of the incidents raised in petitioner’s Dignity Act complaints. 

 

[3] Given this conclusion, there are no grounds to remove any school officers identified by petitioner (see Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,208).  Moreover, petitioner did not join any of these officers/employees by naming them in the caption of the petition and serving them with a copy of the petition (Appeal of Hadden, 57 Ed Dept Rep, Decision No. 17,253; Appeal of Affronti, 54 id., Decision No. 16,756).

 

[4] To the extent petitioner alleges a violation of Section 504 of the Rehabilitation Act of 1973, I similarly lack jurisdiction over such claims (Appeal of J.B., 62 id., Decision No. 18,245).