Appeal of M.B. and R.B., on behalf of their child, from action of the Board of Education of the East Syracuse Minoa Central School District regarding student bullying.

Decision No. 18,514

(October 28, 2024)

Tully Rinckey PLLC, attorneys for petitioners, Sivan Zak and Nicholas Marricco, Esqs., of counsel

Ferrara Fiorenza PC, attorneys for respondent, Jennifer E. Mathews, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the decision of the Board of Education of the East Syracuse Minoa Central School District (“respondent”) regarding a Dignity for All Students Act (“Dignity Act”) complaint involving their child (the “student”).  The appeal must be dismissed.

On April 1, 2024, petitioners filed a Dignity Act complaint with respondent alleging that the student was bullied during the 2022-2023 spring sports season and, again, when he was cut from a junior varsity team in March 2024.  Counsel for respondent investigated these claims and concluded, on May 8, 2024, that the student was not bullied or harassed.  This appeal ensued.

Petitioners allege that respondent failed to sufficiently investigate their Dignity Act complaint.  Petitioners further claim that the student was cut from a sports team in retaliation for their reporting of bullying and harassment.  For relief, petitioners request that I “sustain [their] appeal of the DASA investigation results” and award them attorneys’ fees. 

Respondent contends that the petition should be dismissed for improper service.  On the merits, respondent maintains that it conducted a thorough investigation and reached a reasoned conclusion. 

The appeal must be dismissed for improper service.  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).

Here, petitioners delivered the petition to an employee of the school district, a personnel specialist, who was not authorized to accept service on respondent’s behalf.  Petitioners argue that the personnel specialist knew or should have known that the process server was attempting to serve legal papers based on questions she asked concerning military status.  There is no evidence, however, that the process server inquired whether the personnel specialist was authorized to accept service.  Absent such a request, school districts are not responsible for ensuring that service is properly made.  Accordingly, the appeal must be dismissed (Appeal of T.A., 63 Ed Dept Rep, Decision No. 18,367; Appeal of Lang, 62 id., Decision No. 18,164).

Even if the appeal was properly served, it would be dismissed on 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). 

Petitioners have not shown that respondent’s Dignity Act determination was arbitrary or capricious.  Petitioners generally characterize the investigation results as “vague” and assert that respondent has “continuously refused to investigate the matter.”  These statements are belied by the evidence in the record, which reflects that respondent’s investigator interviewed five witnesses from the district—the junior varsity coach, junior varsity assistant coach, varsity coach, athletic director, and director of counseling—as well as the student and seven teammates.[2]  These interviews formed the basis of the investigator’s report.  Thus, contrary to petitioners’ claims, respondent’s investigation was thorough and based upon the evidence before it (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).

Petitioners also allege that the student was cut from a sports team in retaliation for their complaint of bullying and harassment.  The Dignity Act prohibits school districts and their employees from “tak[ing] ... retaliatory action against any such person” who “makes ... a report” alleging bullying or harassment (Education Law § 16).  A claim of retaliation requires a petitioner to show that he or she:  (1) engaged in protected activity; (2) was subjected to adverse action; and (3) causation (see generally Vega v. Hempstead Union Free Sch. Dist., 801 F3d 72, 90 [2d Cir 2015]; Application of the Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147). 

Petitioners have failed to demonstrate causation between their complaint and respondent’s decision not to select the student for the sports team.  At the beginning of the 2023-2024 school year, the team’s coaches indicated that cuts would be necessary.  The coaches further stated that prior performance would not be taken into consideration in deciding who would make the team.  Over the course of multiple days of tryouts, the coaches evaluated students using a rubric that included categories such as strength, agility, and skills.  The student achieved lower scores than those selected for the team and was not the only player who was cut.  Additionally, the student informed the investigator that no bullying occurred in connection with tryouts or, indeed, during the 2023-2024 school year.  This evidence supports a finding that the student did not earn a spot on the team due to the competitive nature of the tryouts.  As such, petitioners have not met their burden of proving a causal link between their complaints and respondent’s decision to cut the student from the team.

Finally, petitioners’ request for costs and attorney’s fees must be denied.  The Commissioner of Education lacks authority to award attorneys’ fees and costs (Appeal of Stewart, 34 Ed Dept Rep 193, Decision No. 13,279; Appeal of Ferguson, 32 id. 495, Decision No. 12,897).

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

THE APPEAL IS DISMISSED.

END OF FILE