Appeal of A.C., on behalf of her daughter A.C., from action of the Board of Education of the West Islip Union Free School District regarding a bullying complaint.

Decision No. 15,215

(April 26, 2005)

Guercio & Guercio, attorneys for respondent, Thomas Voltz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of the Board of Education of the West Islip Union Free School District ("respondent") in response to her bullying complaint. The appeal must be dismissed.

Petitioner alleges that on June 2, 2004 at the West Islip High School, a student chased her daughter through the halls into the guidance office screaming threats and obscenities. The high school principal conducted an investigation and determined that there was insufficient evidence to take disciplinary action against the student.

Petitioner and her daughter then went to the district administrative offices and requested a meeting with the superintendent. Because the superintendent was not available, they were advised that petitioner's daughter could present her concerns in writing. On or about June 16, 2004, the superintendent's office received a letter from petitioner's daughter describing the June 2, 2004 incident and surrounding events, and setting forth her complaints regarding the district's response to the incident. Petitioner alleges that neither the superintendent nor respondent answered her letter.

At its August 12, 2004 meeting, respondent permitted petitioner's daughter to speak before the board and she expressed her dissatisfaction with respondent's handling of the incident and its alleged failure to respond to her June 16 letter.

On September 8, 2004, petitioner commenced this appeal on behalf of her daughter. Petitioner requests that the superintendent and board members formally respond to their complaint "with full resolution of the situation of 6/2 and 8/12/04"; that respondent and the superintendent explain why "they chose to ignore" her daughter and to publicly apologize for doing so; and for her daughter to be invited to speak with others on solutions to bullying.

Respondent denies petitioner's allegations and contends that it properly acted within its scope of authority in determining that no discipline would be imposed for the June 2, 2004 incident. Respondent also maintains that the appeal is untimely, that petitioner has failed to meet her burden of proof, that the petition fails to state a claim upon which relief may be granted, that petitioner has failed to join necessary parties, and that petitioner lacks standing.

Before proceeding to the merits, I will address several procedural issues. Respondent contends that petitioner's reply and reply affidavits fail to comply with ��275.3 and 275.14 of the Commissioner's regulations. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ��275.3 and 275.14). A reply may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of Kirschenbaum, 43 Ed Dept Rep 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188; Appeal of Muench, 38 id. 649, Decision No. 14,110). The rationale for this rule is to ensure an orderly framing of the issues (Matter of a Handicapped Child, 24 Ed Dept Rep 41, Decision No. 11,308). Therefore, while I have reviewed petitioner's submissions, I have not considered those portions containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Pursuant to �275.16 of the Commissioner's regulations, an appeal to the Commissioner of Education must be initiated within 30 days of the action or decision complained of, unless any delay is excused for good cause shown. Respondent contends that the 30 days must be measured from the June 16, 2004 delivery to the superintendent of the complaint letter from petitioner's daughter. However, petitioner has framed her complaint in terms of respondent's alleged failure to respond to the letter. It appears from the record that petitioner was permitted to present her grievances regarding respondent's alleged lack of response at respondent's August 12, 2004 board meeting. Therefore, on the record before me, I find that the 30 days should be measured from the August 12, 2004 meeting. Since petitioner properly served a petition on the board's clerk on September 8, 2004, I find that the appeal is timely.

A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Roff, 41 Ed Dept Rep 346, Decision No. 14,708; Appeal of Gargan, 40 id. 465, Decision No. 14,528; Appeal of World Network International Services, Inc., 39 id. 30, Decision No. 14,164). Petitioner has named and served only respondent board of education in this appeal. However, petitioner requests certain relief against the superintendent, including a public apology for allegedly ignoring and failing to respond to petitioner's complaint. Since the superintendent's rights would be adversely affected by any determination that he acted improperly, the superintendent is a necessary party to this proceeding (Appeal of Basil, 37 Ed Dept Rep 568, Decision No. 13,929). Petitioner was therefore required to personally serve him with the notice of petition and petition (8 NYCRR �275.8; Appeal of Wheeler, 40 Ed Dept Rep 678, Decision No. 14,581; Appeal of Heller, 38 id. 335, Decision No. 14,048), and her failure to do so warrants the dismissal of this appeal with respect to petitioner's claims against the superintendent.

Moreover, with respect to petitioner's request for an apology, I lack the authority to order such relief (Application of McDougall and Dacey, 42 Ed Dept Rep 195, Decision No. 14,819; Appeal of Basil, supra).

Respondent also contends that petitioner failed to join the student who allegedly chased and threatened petitioner's daughter. However, in a letter submitted pursuant to �276.5 of the Commissioner's regulations, petitioner clarifies that she does not seek discipline of the student. Accordingly, since petitioner seeks no relief against the student, I do not find her to be a necessary party to this appeal. Furthermore, since petitioner does not seek to have respondent discipline the student, I need not consider respondent's contention that she lacks standing to do so.

It appears that the essence of petitioner's grievance is that respondent failed to directly communicate with her daughter concerning its investigation of the June 2, 2004 incident or respond in writing to her June 16, 2004 complaint letter.

In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR �275.10; Appeal of L.M., 43 Ed Dept Rep 279, Decision No. 14,994; Appeal of Brannon, 42 id. 220, Decision No. 14,830). Petitioner's allegations consist of general, subjective expressions of her dissatisfaction with the district's response to the June 2, 2004 incident and her complaint. Her allegations are refuted by the affidavits of respondent's principal and superintendent, which establish that the assistant superintendent conducted two reviews of the principal's determination, one of which was conducted specifically in response to the June 16, 2004 complaint letter from petitioner's daughter. The district also took other measures such as assigning an escort to petitioner's daughter, allowing her to leave class early, and rearranging her fall schedule to ensure certain students would not be in her classes or lunch periods.

Although petitioner believes that respondent should have directly communicated with her and her daughter concerning its investigation and responded in writing to her June 16, 2004 complaint letter, there is no requirement in law that respondent do so. Furthermore, confidentiality requirements regarding student discipline and student records may constrain respondent's disclosure of certain information.

While a better effort on the part of both parties to communicate more effectively may have removed the necessity for an appeal, on the record before me, I do not find respondent's actions to be arbitrary, capricious or contrary to law.

THE APPEAL IS DISMISSED.

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