Appeal of E.G., on behalf of his child, from action of the Board of Education of the Whitehall Central School District regarding student bullying and application for the removal of a teacher.

Decision No. 18,551

(February 14, 2025)

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy and Victoria A. Mosley, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Whitehall Central School District (“respondent”) regarding bullying and harassment.  He also seeks the removal of a teacher in connection therewith.  The appeal must be dismissed and the application denied.

Petitioner’s child (the “student”) attended respondent’s high school at all times relevant to this appeal.  On May 8, 2024, petitioner filed a Dignity for All Students Act (“Dignity Act”) complaint alleging that the student’s English teacher engaged in bullying and harassment during the 2023-2024 school year.  The district’s Dignity Act coordinator proceeded to investigate.  By letter dated May 31, 2024, the coordinator determined that there was insufficient evidence of a Dignity Act violation.  An appeal to respondent was denied by letter dated June 20, 2024; this appeal ensued.

Petitioner alleges that the teacher acted unprofessionally toward the student when she accused her (and others) of cheating, tossed a packet of materials on to the student’s desk, and “intentionally ignored” the student thereafter.  For relief, petitioner requests a determination that the teacher violated the Dignity Act as well as her “removal” from employment with the district.

Respondent contends that the appeal should be dismissed on myriad procedural grounds.  Alternatively, respondent contends that petitioner failed to meet her burden of proof.  Respondent additionally argues that the application for removal is moot insofar as the teacher resigned her position within respondent’s district at the end of the 2023-2024 school year.

Initially, petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).[1]

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 ....[2]

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).

The record demonstrates that respondent appropriately responded to petitioner’s Dignity Act complaint.  Upon receipt thereof, respondent’s Dignity Act coordinator promptly investigated by interviewing the student and reviewing the complaint and supporting materials.  After doing so, the coordinator determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act], but rather [p]etitioner’s conflict with [the teacher’s] general teaching/advising style.”  Petitioner’s evidence, by contrast, consists of hearsay statements and his subjective interpretation of correspondence from the teacher.  Weighing the probative value of the parties’ submissions, I find that petitioner has failed to prove that respondent’s Dignity Act determination was arbitrary or capricious (see Appeal of G.M., 62 Ed Dept Rep, Decision No. 18,257; Appeal of M.E., 62 id., Decision No. 18,248; Appeal of John and Jane Doe, 61 id., Decision No. 18,088).  Moreover, petitioners have not identified any relief that can be awarded at this juncture as the teacher has resigned.

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

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

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