Appeal of M.C. and T.H., on behalf of their child, from action of the Board of Education of the New Paltz Central School District regarding student bullying.

Decision No. 18,550

(February 14, 2025)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Lakshmi Singh Mergeche, Esq., of counsel

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

The student attended respondent’s middle school at the time of the events described herein.  Petitioners allege that a classmate of the student (the “classmate”) bullied and harassed him throughout 2023 and 2024.  On one occasion in January 2024, the classmate pulled down the student’s pants and attempted to take a picture of him using the bathroom.  The middle school assistant principal investigated this incident, neglecting, according to petitioners, other instances of bullying that occurred during the preceding months.   On January 29, 2024, the assistant principal completed a Dignity Act complaint form regarding this incident.   Following an investigation, the assistant principal concluded that there was “insufficient evidence to support a DASA violation.”  Nevertheless, respondent recommended the development of a safety plan for the student and classmate.[1]  Appeals to the superintendent and respondent were denied; this appeal ensued. 

Petitioners claim that respondent failed to investigate all claims of bullying and harassment between the student and classmate.  Among other relief, petitioners request the development a safety plan, a determination that the student was bullied, and an apology.  Petitioners also seek removal of the assistant principal. 

Respondent maintains that it conducted a thorough investigation and reasonably concluded that the bathroom incident did not rise to the level of bullying or harassment.[2]

Initially, petitioners’ request to remove the assistant principal must be denied.  Assistant principals are school district employees, not “school officer[s]” subject to removal under Education Law § 306 (see e.g. Appeal of Rosten, 49 Ed Dept Rep 237, Decision No. 16,014).  Moreover, petitioner did not comply with the procedural requirements applicable to removal applications, including the specialized notice provision and personal service of the petition on the assistant principal (8 NYCRR 277.1 [b]; Application of DiLorenzo, 62 Ed Dept Rep, Decision No. 18,183).

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 ....[3]

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). 

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).

Initially, I find that respondent erred by only considering whether the student was subjected to bullying or harassment based solely on the bathroom incident.  In connection with their Dignity Act complaint, petitioners informed respondent of a pattern of increasingly negative interactions between the student and the classmate.  These included allegations of physical assault and verbal harassment.  Most concerningly, in a February 21, 2024 email, the student stated that he did not feel safe in school, “hate[d] [his] life,” and “just want[ed] to give up on life.”  Even assuming that petitioners agreed to limit the scope of their Dignity Act complaint to the bathroom incident, which they contest, respondent has an ongoing obligation to address all incidents of bullying and harassment.  Thus, its investigation should have considered the entire history of negative interactions between the student and the classmate.

I further find that petitioner has proven that the student was bullied and harassed.  As indicated above, bullying or harassment entails “the creation of a hostile environment by conduct” that “unreasonably and substantially interfere[s] with a student’s ... mental, emotional and/or physical well-being” (8 NYCRR 100.2 [kk] [1] [viii] [a]).  This includes “conduct, threats, intimidation or abuse that reasonably cause [] or would reasonably be expected to cause emotional harm” (id.).  Bullying and harassment can be a single incident or a “series of related ... incidents” (8 NYCRR 100.2 [kk] [1] [ix]). 

The Dignity Act form completed by the assistant principal indicates that, according to the parents, “while in the bathroom on 1/29, [the classmate] tried to take a picture of [the student’s] private parts.”  The form further indicates that a “Spanish teacher opened the bathroom door and told [the] students to go to class.”  Petitioners also alleged that a photograph of this incident “was shared” with others.  This information is generally corroborated by a written statement submitted by a student witness.  Petitioner also submitted text messages from the classmate to the student that threatened him with physical violence.  In this respect, the witness to the bathroom incident described an assault where the classmate and others “surrounded [the student] and beat [] [him] to the ground.”

I find that this conduct unreasonably and substantially interfered with the student’s mental, emotional and/or physical well-being.  The evidence in the record demonstrates that the classmate threatened, and used, physical force against the student.  This harassment culminated with the classmate seeking to exploit the student by taking a picture of him in a state of undress.  The assistant principal’s written decision does not address these incidents, merely stating that there was “[i]nsufficient evidence to support a DASA violation.”[4]  The decisions of the superintendent and respondent are similarly bereft of specific findings or analysis.  As such, respondent’s conclusion that no bullying or harassment occurred is unsupported by the record.

However, no relief is warranted at this juncture as respondent has implemented, or attempted to implement, appropriate remedies to address the situation between the student and classmate (Appeal of B.C. and R.C., 64 Ed Dept Rep, Decision No. 18,505).  In response to the February 21, 2024 email, school staff promptly contacted petitioners and convened a meeting of respondent’s Committee on Special Education, which recommended counseling services for the student.  Moreover, as indicated above, respondent proposed the creation of a safety plan for the student and the classmate.

Petitioners directed the student not to agree to the safety plan based on their belief that their child, as a victim, should have to take affirmative action to remedy the situation.  While this perspective is valid, the record reflects that school officials were willing to revise the plan to address these concerns.  In February 2024, the middle school principal acknowledged that the document “appear[ed] to be more of a contract than a safety plan” and agreed that such plans should be “supportive and not punitive in nature.”  And, in April 2024, the acting dignity act coordinator stated that the safety plan would be revised “to take into consideration the family’s concerns.”

Thus, although respondent erred in its conclusion, it nevertheless responded to the bullying and harassment reported by petitioners and proposed appropriate supports in connection therewith.  In this respect, respondent reports that there have been no further conflicts between the student and classmate during the 2024-2025 school year.

Petitioners’ remaining requests for relief—including an apology and declaratory relief—are outside the scope of an appeal pursuant to Education Law § 310 (e.g., Appeal of M.E., 62 Ed Dept Rep, Decision No. 18,245; Appeal of He, 57 id., Decision No. 17,299).

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

THE APPEAL IS DISMISSED.

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