Appeal of C.B., on behalf of her daughter I.B.-K., from action of the Board of Education of the City School District of the City of Buffalo regarding bullying.

Decision No. 16,666

(September 5, 2014)

Christopher M. Putrino, Esq., attorney for respondent

KING, JR., Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Buffalo (“respondent” or “the board”) regarding its handling of allegations of bullying of her daughter.  The appeal must be dismissed.

According to petitioner, I.B.-K. had been the subject of bullying, principally by one student, over the course of the two school years during which she attended respondent’s City Honors School at Fosdick-Masten Park (“City Honors”).  During the 2010-2011 school year, I.B.-K. attended sixth grade at City Honors.  In September 2010, petitioner corresponded with I.B.-K.’s teacher via email regarding petitioner’s concerns about another sixth-grade student at City Honors (“the student”), who was allegedly making inappropriate statements about I.B.-K.’s clothes and ability to make friends.  I.B.-K.’s teacher provided petitioner with the school guidance counselor’s contact information.

In November 2010, petitioner advised City Honors that I.B.-K. was being “cyberbullied” by the student.  According to petitioner, the student made negative comments about I.B.-K. on a blog.  Subsequently, petitioner advised City Honors that the cyberbullying had been resolved, and the school did not intervene.

I.B.-K. returned to City Honors for seventh grade in the 2011-2012 school year.  According to petitioner, the student began bullying I.B.-K. again during the fall of 2011.  Petitioner alleges that the bullying occurred mainly in the school cafeteria.  Petitioner also alleges that the student, and at times another student, would make demeaning comments to I.B.-K., would force I.B.-K. to empty the cafeteria trays of other students and would “socially isolate” I.B.-K.

 

According to petitioner, she met with the principal and school counselor in December 2011 and advised them that I.B.-K. had become “extremely anxious and depressed and had begun acting out at home because of the bullying ...” (emphasis in original).

In January 2012, petitioner met with the principal and school counselor to discuss I.B.-K.  Resolutions to address petitioner’s concerns were proposed, including scheduling regular meetings between I.B.-K. and the school counselor and creating a “lunch bunch,” a group of students who meet in the school counseling center during lunch with the purpose of social/emotional development.  Thereafter, the school counselor and I.B.-K. met multiple times.  During that time, petitioner also obtained private counseling for her daughter.

By email dated May 31, 2012, petitioner advised the principal and school counselor that she and her husband would be withdrawing I.B.-K. from City Honors at the end of the school year, and that the sole reason her daughter would not be graduating from City Honors was “because of the horrible bullying inflicted on [her] for the past two years ....”  By email dated June 1, 2012, the principal responded to petitioner and indicated that “we are going to have to respectfully disagree on some of the claims being made about the school and specific incidents ....”

In June 2012, petitioner contacted the assistant principal, and, among other things, inquired about City Honors’ plans to comply with the Dignity for All Students Act (“DASA”).  In response, the assistant principal advised petitioner that a school team had recently attended DASA training.  The assistant principal also described the district’s existing programs that addressed student social and emotional well-being.  Petitioner sent another email to the assistant principal, expressing her anger and frustration regarding the school’s inability to stop the bullying of her daughter and the principal’s alleged “refusal” to meet with her regarding his June 1, 2012 email.  Petitioner also questioned whether City Honors would “reconsider” her suggestion to implement an anti-bullying policy in the cafeteria.

By email dated June 18, 2012, the principal responded to petitioner suggesting she call his secretary to schedule a meeting with him and the community superintendent who was his direct supervisor.  He also commented on the “need for civility in dealing with school staff.”  Petitioner contacted the community superintendent, who, according to petitioner, offered to arrange a meeting with the principal and assistant principal.  According to petitioner, “[the community superintendent’s] hostile tone implied that nothing else would be forthcoming” (emphasis in original).  Subsequently, petitioner scheduled, then cancelled the meeting with the principal and community superintendent.

Petitioner addressed the Board at its August 2012 meeting, expressing her frustration regarding the school’s response to the alleged bullying of her daughter.  Thereafter, respondent’s associate superintendent met with petitioner regarding her concerns of inappropriate conduct on the part of another student toward her daughter and the principal’s June 18, 2012 email.

I.B.-K. did not attend City Honors for the 2012-2013 school year, but rather returned to the nonpublic school she attended prior to attending City Honors.

The associate superintendent referred petitioner’s complaint to the assistant superintendent for student services (“assistant superintendent”), who also led the district’s Bias Response Team.  In her affidavit, the assistant superintendent states that the Bias Response Team is responsible for investigating student concerns relative to their academic careers in respondent’s schools.  She further states that as part of the investigation, she assembled documents and participated in a telephone conference with the school social worker and petitioner.  She also states that she advised petitioner of the importance of interviewing I.B.-K. as part of the investigation, but that I.B.-K. was not made available for the investigation.  In addition, she states that she had another conversation with petitioner, who inquired as to whether she received certain information from petitioner and one of I.B.-K.’s health care providers.

According to petitioner, on October 3, 2012, she contacted the assistant superintendent who advised her that “[t]he findings are nearly 100% in your favor with 2 findings being quite damning” and that “[y]our name has been completely cleared” (emphasis in original).  In her affidavit, the assistant superintendent indicates that she recalled having follow-up telephone conversations with petitioner relative to the investigation, but that petitioner’s allegations as to comments she made are inaccurate.

The Bias Response Team issued a final report of its findings (“Report”) on October 31, 2012, which was provided to petitioner on November 29, 2012.  The Report indicates that once an incident of harassment and/or bullying is reported to building staff and/or administration, an investigation must commence and culminate with a resolution.  The Report further indicates that the Bias Response Team conducted interviews with petitioner, the principal, assistant principal and community superintendent between September 11 and October 19, 2012.

The Bias Response Team found that the principal attempted to resolve complaints of alleged harassment and bullying of I.B.-K. and that the principal reported that he and the assistant principal investigated the reported incidents, but that they were contradicted and not substantiated by I.B.-K.  The Bias Response Team further found that, to the extent that resolution was possible given the reported lack of substantiation from I.B.-K., the principal sufficiently attempted to resolve reported incidents of harassment and bullying.

Following receipt of the Report, petitioner contacted the assistant superintendent to discuss the Report’s findings.  In her affidavit, the assistant superintendent states that she offered to re-open the investigation so that I.B.-K. could be interviewed and otherwise participate in the investigation.

By email dated November 29, 2012 to the associate superintendent, petitioner indicated that she intended to pursue her request for an investigation of the principal’s conduct toward her.  Petitioner also sent emails to respondent’s superintendent requesting an investigation of the principal.

Petitioner addressed the Board at its December 2012 meeting.  The record indicates that after petitioner spoke, Board Member Sharon Belton-Cottman addressed petitioner in the hallway.  In her affidavit, Board Member Belton-Cottman states that she noticed petitioner had become emotional following her speech, and out of empathy, wanted to speak to her.  Board Member Belton-Cottman further states that she did not address petitioner on behalf of the Board of Education and she was not expressing the opinion of the Board of Education.  She also indicates that she was advised of the Bias Response Team’s Report and findings and that the Board took no formal action with respect to petitioner’s complaints.

Petitioner also addressed the Board at its January 2013 meeting.  By email dated February 1, 2013 to respondent’s public relations office, petitioner requested minutes from the Board meeting which included the vote on her complaint.  By email dated February 12, 2013, petitioner was advised that there was no vote, roll-call or other Board action taken with respect to her complaint.  Thereafter, petitioner filed two more Freedom of Information Law requests regarding alleged Board action with respect to her complaints.  This appeal ensued.

While the petition is not entirely clear, petitioner asserts that she was forced to withdraw I.B.-K. from City Honors because she had been bullied there for two years, which negatively affected her self-esteem and emotional well-being.  For relief, petitioner requests that I investigate and/or review and report or determine how respondent “mishandled” the DASA investigation; how respondent “thwarted the spirit of DASA by incompetently handling the investigation” and by “corruptly hiding and discounting the willful misconduct and neglect” of the principal and community superintendent; how the findings “changed so dramatically” from the time petitioner spoke with the assistant superintendent to when petitioner received the Report; how Board members were able to accept the “second changed findings” (emphasis in original); why the principal “refused to even consider ... just bringing up for review” (emphasis in original) to the City Honors faculty the anti-bullying cafeteria policy; the community superintendent’s response to petitioner’s request for an investigation of the principal; how the community superintendent and principal “failed” to refer her daughter’s case to the associate superintendent after the effective date of DASA; “the culture of corruption” in respondent’s district among various employees and Board members and “the way many of them have covered up each other’s willful misconduct”; how the “wall of silence which various Buffalo Public School officials and Board of Education members have leveled at [petitioner]” is “protecting incompetent and corrupt district administrators, district officials, and Board of Education members” (emphasis in original); and the way the presentation of the results of the DASA investigation “has been 100% completely concealed in the Buffalo Board of Education meeting minutes from ever having taken place” (emphasis in original).  She also asks that I determine that “viciously bullied New York State public school children should not have to immediately testify in their school buildings and to their school’s administrators, at the risk of their DASA investigations being labeled by their school districts ‘not substantiated’ ... against their bullying abusers ...(emphasis in original).

Respondent asserts that the petition fails to set forth facts alleging a cause of action upon which relief may be granted, that the appeal is untimely and that petitioner is precluded from claiming a violation of DASA because the conduct complained of occurred prior to the effective date of DASA.

I will first address the procedural issues.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Petitioner appeals from respondent’s November 29, 2012 Report which found, among other things, that the alleged complaints of harassment and bullying were investigated, but that they were contradicted and not substantiated by I.B.-K. and that the principal made sufficient attempts to resolve reported incidents of harassment and bullying.

Petitioner acknowledges that the commencement of this appeal, which was served on respondent on February 19, 2013, is not timely.  In her petition, she offers several excuses for her late filing.  First, petitioner appears to assert that she was not advised that she had the right to appeal respondent’s determination and that she did not discover that she had such right until January 11, 2013.  Petitioner also asserts that she “had extreme difficulty getting anyone to communicate with [her] at all in the Buffalo Public School district” (emphasis in original).  In addition, petitioner indicates that her husband was in a very remote area of northern Saudi Arabia from December 17, 2012 through January 12, 2013, and they could not reach a collective decision about how to proceed with their daughter’s case “even if [they] HAD known” (emphasis in original) that they had the right to appeal respondent’s findings.  She also asserts that she would have filed the appeal on February 12, 2013 - one month from the day she discovered her right to appeal – but was prevented from doing so because on that same day, she discovered that the Board “acted illegally by completely hiding that the presentation they received of the Findings of the DASA investigation in our daughter’s case from their BOE meeting minutes” (emphasis in original).  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  I find no unusual circumstances in this case and petitioner has not provided a sufficient basis upon which to excuse her delay (see Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,575; Appeal of Perou, 49 id. 389, Decision No 16,059).  Accordingly, petitioner’s appeal is dismissed as untimely.

Further, to the extent petitioner challenges respondent’s alleged failure to stop the alleged bullying toward I.B.-K., the conduct petitioner complains of occurred during the 2010-2011 and 2011-2012 school years and the student did not return to City Honors for the 2012-2013 school year.  As noted above, this appeal was not initiated until February 19, 2013, well outside the time period within which to file an appeal regarding such allegations (See Appeal of A.V. and S.A.-V., 53 Ed Dept Rep. Decision No. 16,528).

In addition, the petition does not set forth a basis upon which petitioner claims entitlement and/or a legal right to the relief she seeks.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioner appears to object to respondent’s investigation and Report on the basis that respondent violated DASA.  However, I note that DASA became effective on July 1, 2012, after the bullying was alleged to have occurred.  In any event, to the extent petitioner argues that the district’s actions subsequent to July 1, 2012 violated DASA, she has not carried her burden of proof.  The record indicates that the school and the district both conducted an investigation.  In his affidavit, the principal states that throughout 2012, he and the school counselor proposed various methods to address the matter with the students who had allegedly exhibited inappropriate conduct toward I.B.-K. and that petitioner generally declined such proposals and interventions.  He also states that he and his staff were severely constrained by petitioner’s refusal, among other things, to allow them to ask I.B.-K. about her experiences at school and petitioner’s request that they not speak with any of I.B.-K.’s friends or classmates.  In her affidavit, the assistant superintendent describes the Bias Response Team’s investigation, during which she assembled and reviewed relevant documents, including documentation provided by petitioner, and participated in a telephone conference with the school social worker and petitioner.  The assistant superintendent also avers that petitioner declined to make I.B.-K. available for an interview with the Bias Response Team during its investigation.  On this record, petitioner has failed to establish that respondent acted improperly in conducting its investigations (see e.g., Appeal of Kosack, 53 Ed Dept Rep, Decision No. 16,611).

Further, I lack the authority to grant the relief petitioner requests.  As noted above, petitioner requests that I investigate and/or review and report or determine various claims regarding respondent’s handling of allegations of bullying toward her daughter.  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).  To the extent petitioner seeks declaratory relief, including a determination that students who are the subject of bullying should not be required to immediately testify in a DASA investigation, it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

While I have found that petitioner has failed to carry her burden of proof on this record, I note that nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by intimidation, harassment and bullying in public schools.

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

THE APPEAL IS DISMISSED.

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