Appeal of L.P., on behalf of her child, from action of the Board of Education of the Plainview-Old Bethpage Central School District regarding student bullying.

Decision No. 18,552

(February 25, 2025)

Guercio & Guercio, LLP, attorneys for respondent, Christopher F. Mestecky, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals a decision of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent”) regarding a Dignity for All Students Act (“Dignity Act”) complaint concerning her child (the “student”).  The appeal must be dismissed. 

The student attended third grade in respondent’s district at the time of the events described herein.  Sometime in October 2023, a parent reported that petitioner’s child had been “unkind” to a classmate.  In response, the principal and vice principal directed the students to “take a break” from each other.  Petitioner asserts that, as a result thereof, the student was unnecessarily isolated from the classmate.  For example:

• On December 2, 2023, school staff moved the student to a different table in the cafeteria after she attempted to sit across from the classmate;
• On December 14, 2023, the classmate told the student that she could not be included in her friend group; and
• On January 26, 2024, during a lunch break, the classmate told the student that they could not be in the same room together.  

On January 29, 2024, petitioner filed a Dignity Act complaint alleging that the principal and vice principal engaged in bullying and harassment.  Petitioner claimed that the administrators harbored a “discriminatory … attitude towards” the student and that the “school’s approach to resolution of [this] inter-child relationship issue lack[ed] equality.”  Petitioner further stated that the “misguided approach taken by [the principal and vice principal] … created an adverse and unfair environment” for the student. 

By letter dated February 8, 2024, the principal informed petitioner that the district had investigated and found her allegations of bullying and harassment to be without merit.  This appeal ensued. 

Petitioner claims that the principal and vice principal improperly directed the student to avoid interacting with the classmate.  For relief, petitioner requests that the Commissioner order a third party to investigate and “confirm if this situation with [the student] was dealt with in a professional and sensitive [manner].”  Petitioner also requests an investigation to determine why respondent took “such a drastic approach” to managing interactions between the students.

Respondent maintains that petitioner failed to exhaust administrative remedies prior to commencing this appeal.  On the merits, respondent contends that it thoroughly investigated the matter and reached a conclusion supported by the evidence. 

First, I must address two procedural matters.  A reply must be served within 10 days after service of the answer to which it responds (8 NYCRR 275.14 [a]).  If the answer was served by mail, the date of mailing and the four days subsequent thereto shall be excluded in calculating the 10-day period (8 NYCRR 275.14 [a]; Appeal of Matlis, 57 Ed Dept Rep, Decision No. 17,303; Appeal of a Student with a Disability, 48 id. 98, Decision No. 15,803). Petitioner submitted a reply over two weeks late without explanation.  As such, I have not considered it in reaching my determination. 

Next, respondent argues that, under board policy 0115-R, petitioner was required to appeal to the superintendent before she could commence this appeal.  A board of education may adopt rules governing appeals of district decisions and may impose timelines in connection therewith (Appeal of Halpern, 58 Ed Dept Rep, Decision No. 17,480).  Any such policy must be reasonable and clearly communicated to parents (Appeal of S.R. and T.J.R., 63 Ed Dept Rep, Decision No. 18,357).  Even assuming that policy 0115-R imposes a mandatory appeal requirement, it was not clearly communicated to petitioner.[1]  The principal’s February 8, 2024 letter states that petitioner “ha[d] the right to appeal this outcome determination … [i]f [she] wish[ed] … to the District Level Dignity Act Coordinator.”[2]  I do not find that this general language provided sufficient notice of a mandatory appeal requirement.  As such, I decline to dismiss the appeal for failure to exhaust administrative remedies (Appeal of S.L., 58 Ed Dept Rep, Decision No. 17,567; see generally Appeal of J.B.W., 62 id., Decision No. 18,205).

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).

I find that respondent appropriately responded to petitioner’s allegations of bullying and harassment.  The record reflects that the investigator interviewed several witnesses, including ten students, a classroom teacher, a school psychologist, and two school employees.  These interviews, together with email correspondence with petitioner, formed the basis of the investigator’s report.  The interviews reveal that the student and classmate experienced conflict while attempting to navigate social interactions.  One factor that contributed to these conflicts is that, according to the school psychologist, one of the students is “very sensitive” and tends to “hang [] onto minor social conflicts that are pretty typical for the age and ... rehash them.” 

Based on this evidence, I find that respondent conducted a thorough investigation and reached a reasonable conclusion (see Appeal of A.V.A., 64 Ed Dept Rep, Decision No. 18,451; Appeal of D.B. and S.B., 63 id., Decision No. 18,348).  There is no evidence in the record that the principal or assistant principal “singl[ed] out” the student or created a hostile environment.  As respondent indicates, “[t]he witness interviews revealed that both [s]tudent[s] ... have made [each] other upset at times.”  As a result, petitioner has not proven that respondent’s Dignity Act determination was arbitrary or capricious.

To the extent petitioner seeks a third-party investigation concerning this matter, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.E.M., 58 Ed Dept Rep, Decision No. 17,580; Appeal of D.C., 57 id., Decision No. 17,223).

I have considered the parties’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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