Decision No. 16,864
Appeal of L.D., on behalf of her son D.D., from action of the Board of Education of the Rockville Centre Union Free School District regarding the Dignity for All Students Act.
Decision No. 16,864
(January 13, 2016)
Ingerman Smith, L.L.P, attorney for respondent, Kerrin A. Bowers, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the action of the Board of Education of the Rockville Centre Union Free School District (“respondent”) regarding her complaints that district staff violated the Dignity for All Students Act (“DASA”) and various school district policies. The appeal must be dismissed.
During the 2014-2015 school year, petitioner’s son, D.D. (the “student”), attended high school in respondent’s district. By email dated October 25, 2014, petitioner filed a complaint with the school’s DASA coordinator alleging that school district staff violated DASA and several school district policies. In particular, petitioner alleged that on October 20, 2014, the high school principal (“principal”) intimidated, bullied and harassed her son in connection with a disciplinary investigation. Petitioner also complained that, in the prior school year, the high school supervisor of student activities and discipline (“discipline supervisor”) improperly viewed and printed a posting from her son’s Twitter account. Petitioner complained that, consequently, the school atmosphere was not that of a safe school environment.
The superintendent of schools directed the district-level DASA coordinator (“district coordinator”), to investigate petitioner’s complaint. The investigation included interviews with seven teachers and administrators, petitioner and the student. On November 1, 2014, the district coordinator issued a written report to the superintendent finding that no violation of DASA or school policy had occurred.
By letter dated November 13, 2014, the superintendent notified petitioner of the determination that her DASA complaint was unfounded, that no discrimination was evident and that there was no indication of harassment or intimidation prior to or after the principal’s investigative interview with the student on October 20, 2014. Petitioner appealed the superintendent’s decision to respondent. By letter dated December 11, 2014, the district clerk notified petitioner of respondent’s decision denying her appeal and upholding the superintendent’s determination. This appeal ensued.
Although not clearly set forth in the petition, petitioner appears to claim that respondent violated DASA and school district policies based on the conduct of district staff on two occasions. Petitioner states that, on October 20, 2014, her son was “intimidated and bullied” “regarding an incident that took place on the weekend, off school grounds and not at a school related event, regarding the purchase of alcohol.” This allegation apparently refers to the October 20, 2014 questioning of her son by the principal. Petitioner claims that she and the student’s father should have been called, instead, “to handle it.” Petitioner also asserts, apparently in connection with that interview, that respondent “had no authority to threaten [her son] with filing a police report against him or using another student to intimidate him.” Regarding a second incident, petitioner also asserts that respondent violated New York State Education Department (“NYSED”) guidelines on bullying and cyberbullying in that her son “was not involved in [a] cyberbullying incident therefore his Twitter account should not have been viewed and/or shared with other parents.”
As relief, petitioner requests that such practices “cease immediately.” She seeks an apology from the district and, specifically, from the principal for her “intimidation/bullying tactics” and an “acknowledgement that these behaviors are in violation of DASA as well as the district policies.” She also requests acknowledgement from the district that “breaching a student’s personal social network i.e. Twitter, without cause, is against DASA Guidelines” and that “this action cease immediately.”
Respondent argues that petitioner fails to demonstrate a clear legal right to the relief requested or to establish facts sufficient to form a basis for the relief sought. Respondent asserts that it was not arbitrary or capricious in upholding the superintendent’s determination that petitioner’s DASA complaint was unfounded. Respondent maintains that I lack jurisdiction to order the apology sought by petitioner. Respondent further contends that petitioner’s claims regarding the district’s viewing of the student’s Twitter account are untimely.
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 complains, in part, that in the 2013-2014 school year, the discipline supervisor improperly viewed and shared her son’s Twitter account. There is little or no information regarding the incident in this appeal. It appears that the discipline supervisor viewed and printed something from D.D.’s Twitter account in connection with the discipline supervisor’s investigation of another student’s Twitter account. Although petitioner was aware of the incident when it occurred in the 2013-2014 school year, she did not complain of it until her October 25, 2014 email to the high school DASA coordinator. The superintendent’s November 13, 2014 letter did not specifically address petitioner’s complaint regarding the Twitter issue and, in her appeal to respondent, petitioner re-iterated that complaint. Respondent’s December 11, 2014 determination generally denied petitioner’s appeal and upheld the superintendent’s decision that petitioner’s DASA complaint was unfounded. Petitioner commenced this appeal within thirty days of respondent’s December 11, 2014 determination of her appeal – which did raise the Twitter-related issue. Consequently, I decline to dismiss that part of petitioner’s appeal as untimely.
To the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Application of McDougall, 42 id., Decision No. 14,819; Appeal of Philips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).
The appeal must be dismissed on the merits. 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).
The petition herein consists of only six paragraphs in which petitioner either quotes portions of DASA guidance issued by NYSED or asserts, in conclusory fashion, that respondent has violated DASA, board policies, and NYSED guidance. The petition is almost entirely devoid of specific factual allegations – only two paragraphs contain factual allegations - and relies on attached emails and marked-up copies of board policies and NYSED guidance in an attempt to establish her claims.
As noted above, petitioner’s claim that respondent violated DASA, school district policies and NYSED guidelines is apparently premised on alleged conduct by district staff in relation to two separate incidents involving her son. First, petitioner asserts, in conclusory fashion, that her son’s Twitter account was improperly “viewed and/or shared with other parents” and alleges that such action violates NYSED’s guidance on bullying and cyberbullying. Specifically, petitioner states that, because her son was not involved in any cyberbullying incident, his Twitter account should not have been viewed by district staff. As noted, the record contains little information regarding the alleged incident. It appears from exhibits in the record that, in the course of investigating another student’s Twitter account during the 2013-2014 school year, district staff saw a posting by petitioner’s son. The discipline supervisor printed it and, concerned about its content, shared it with the parent of the student who was the subject of the posting. There is no information about how district staff accessed petitioner’s son’s Twitter posting, other than through its connection to the other student’s Twitter account. Petitioner did not provide a copy of what, in fact, was viewed and printed. Also, petitioner does not allege, nor is there any evidence, that her son was disciplined or subjected to any adverse action due to the content of his Twitter posting. Therefore, on this record, petitioner has not established facts sufficient to state a claim, and I cannot assess whether, or conclude that, the district staff acted improperly.
Next, petitioner claims, in conclusory fashion, that respondent “intimidated and bullied [her son] regarding an incident that took place on the weekend, off school grounds and not at a school related event, regarding the purchasing of alcohol.” The petition sets forth no further details in support of that allegation. Petitioner states only that the matter “was in no way school related,” did not “happen on school grounds or at a school sponsored event,” and that the district should have called her or her husband to handle it. Petitioner claims that the conduct of district staff in this regard violates DASA.
Relying on the exhibits in the record, to the extent petitioner is claiming that respondent’s staff should not have questioned her son as part of an investigation regarding an alcohol-related incident because it occurred off school property and not at a school-sponsored event, petitioner asserts no legal support for her claim. While there are parameters regarding a school district’s authority to discipline students for off-campus conduct, there is no prohibition against school district staff questioning or conducting an investigation of a student regarding such conduct in order to determine whether pursuing disciplinary action is warranted (see e.g. Appeal of W.T., 46 Ed Dept Rep 363, Decision No. 15,534; Appeal of K.S., 43 id. 492, Decision No. 15,063). Questioning a student about and investigating off-campus conduct, therefore, is not per se improper, nor is it, alone, a violation of DASA, as petitioner appears to claim.
To the extent that petitioner claims that respondent’s staff “intimidated and bullied” her son regarding the off-campus incident, such claim also is set forth in conclusory fashion and the petition lacks specific facts regarding that allegation. It appears from the exhibits in the record that, on or about October 20, 2014, petitioner’s son was questioned regarding the incident in the presence of several administrators. It appears that only two of the administrators in the room were directly involved in questioning petitioner’s son, that the others were present for a regularly scheduled lunch meeting and that, although the other administrators were interested in the discussion, they were not called there for the purpose of interviewing petitioner’s son.
To the extent petitioner complains that the mere presence of the other administrators violates board policy, I note that respondent’s policy on searches and interrogations provides that, when possible, students are to be questioned privately. There is no further elaboration of that provision. Here, petitioner’s son was questioned outside the presence of other students. It is unclear what the policy intends with respect to the presence of administrators. The district coordinator’s report recommended limiting the district staff to two or three where possible, but did not find a violation of board policy in this regard. Given the ambiguity of such policy, I cannot conclude that a violation occurred in this case. Respondent is, however, urged to review and clarify such policy to avoid future confusion and controversy.
In any event, respondent denies that petitioner’s son was intimidated and bullied by the principal, as petitioner claims. Respondent’s district coordinator reported that all five administrators interviewed stated that the principal’s tone was serious, but not intimidating, threatening, demeaning or sarcastic. Petitioner provides no evidence to the contrary, such as an affidavit by her son or anyone else. Other than her conclusory allegation, the record is devoid of support for petitioner’s claim that her son was intimidated and bullied by the principal. As petitioner has the burden of proof, her claim must fail.
Petitioner also alleges that, during the October 20, 2014 investigation, respondent “had no authority to threaten [her son] with filing a police report against him or using another student to intimidate him.” Petitioner provides no factual allegations regarding that statement, but asserts that “[t]his action is in violation of DASA.” According to the district coordinator’s report, the principal did inform petitioner’s son that, due to the nature of the incident (which involved alcohol), she would be filing a police report. It appears that she made this statement after petitioner’s son admitted the conduct and after she had informed him that he would not be suspended from school. As the district coordinator correctly noted, when, in the course of an investigation, district staff find that illegal activity may have occurred, it is appropriate to work with law enforcement and report such activity (see e.g. Appeal of a Student with a Disability, 53 Ed Dept Rep, Decision No. 16,578; Appeal of J.F. and J.F., 46 id. 205, Decision No. 15,483). Petitioner provides no evidence in support of her assertion of intimidation and bullying other than her conclusory statements. On this record, petitioner has not met her burden to establish her claim, and I cannot conclude that the principal’s conduct violated DASA or any board policy.
Finally, petitioner appears to assert that, collectively, the conduct of district staff in relation to the above-described incidents created an atmosphere that: was intimidating and threatening to her son; did not constitute a safe school environment; and, as such, violated DASA. As noted, petitioner has the burden of proof. On this record, I cannot conclude that district staff acted improperly or that, either individually or collectively, the described incidents constitute a violation of DASA.
I also note that while petitioner may disagree with respondent’s December 11, 2014 determination that her DASA complaint was unfounded, she has not established that such determination was arbitrary or capricious. Rather, the record indicates that, in conducting its investigation and making its determination, respondent summarized several emails from petitioner to synthesize her complaints and requests, created a timeline of events, conducted nine interviews, including interviews with petitioner and the student, and issued detailed findings addressing each alleged violation. On this record, I cannot conclude that respondent acted improperly in the conduct of its investigation.
Although I find 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 concerns that may result from intimidation, harassment and bullying in schools.
THE APPEAL IS DISMISSED.
END OF FILE
 Moreover, I note that that the Second Circuit Court of Appeals found that disciplining students for off-campus speech did not violate the First Amendment because “a student may be disciplined for expressive conduct, even conduct occurring off school grounds, when the conduct ‘would foreseeably create a risk of substantial disruption within the school environment,’ at least when it was similarly foreseeable that the off-campus expression might also reach campus” (Doninger v. Niehoff, 527 F3d 41, 48; see Wisniewski v. Bd. Of Educ. of Weedsport Cent. Sch. Dist., 494 F3d 34, cert denied 552 US 1296). Thus, a school district’s review of a student’s off-campus communication is not, itself, impermissible.
 Indeed, DASA itself requires a school district to investigate alleged incidents of harassment or bullying that occur off school property and create or would foreseeably create a risk of substantial disruption where it is foreseeable that it might reach school property (see Education Law §11[d];§13[d]).