Decision No. 17,509
Appeal of J.S., on behalf of his daughter A.S., from action of the Board of Education of the City School District of the City of Albany regarding the Dignity for All Students Act.
Decision No. 17,509
(September 24, 2018)
Honeywell Law Firm, PLLC, attorneys for respondent, Jeffrey D. Honeywell, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals from a determination by the Board of Education of the City School District of the City of Albany (“respondent”) that certain actions against his daughter (“the student”) did not constitute bullying or harassment pursuant to the Dignity for All Students Act (“DASA,” Education Law, Article 2). The appeal must be dismissed.
At all times relevant to this appeal, the student was enrolled in respondent’s high school. During the 2016-2017 school year, the female student who is the subject of this appeal and a male student (the “classmate”) were juniors who were enrolled in several classes together.
On May 22, 2017, during U.S. History class, the classmate exchanged text messages with another male student, making sexual and derogatory comments about the student and another female student. For example, the classmate expressed interest in engaging in sexual activity with the two female students, indicating, among other comments, that he would “be killing that s*** on the daily double,” and that sexual activity would be “how I'd relieve my stress.” The classmate also indicated that, in response to a hypothetical query as to what three items he would bring to an island, he would bring the two female students, “[v]iagra,” and “[n]oise-cancelling headphones” and, alternatively, that he would arrange for “both [female students] to get surgery to lose their voices before we go, and then I’ll take some ibuprofen instead.” Based on the record, it appears that the other male student who participated in the conversation informed the student about the conversation and shared it with her.
On May 24, 2017, the high school vice principal interviewed, among other students, the student and the classmate. The vice principal then notified the high school principal, who requested that the vice principal conduct a “full and thorough investigation” and recommend any appropriate consequences.
On May 24, 2017, the vice principal completed a DASA complaint form on the student’s behalf. The vice principal determined that, given the fact that the DASA coordinator was the “[h]ouse [p]rincipal” who “interact[ed] with each [involved student] on a frequent basis,” it would be more appropriate for the vice principal to conduct the DASA investigation. The vice principal subsequently conducted an investigation.
Apparently unaware of the investigation being conducted by the vice principal, on June 11, 2017, petitioner requested that the district investigate the incident pursuant to DASA.
On June 18, 2017, the classmate filed a DASA complaint alleging that the student had engaged in bullying and harassment toward him.
In letters addressed to the classmate’s parents and petitioner, dated June 23, 2017 and June 28, 2017 respectively, the vice principal stated that she had completed her investigation of petitioner’s DASA claim and concluded that the classmate did not commit an act of discrimination, harassment or bullying within the meaning of DASA.
In a letter to the classmate’s parents dated October 20, 2017, the vice principal stated that she had completed her investigation of the classmate’s DASA claim and that while “a peer conflict [had] occurred,” she concluded that the student did not commit an act of discrimination, harassment or bullying within the meaning of DASA. She further determined that even though there was no DASA or Title IX violation, the district determined that a directive separating and restricting interaction between the student and the classmate, as well as instruction about appropriate behavior and better modes or conflict resolution, were needed.
The record reflects that respondent developed two documents, a stay away agreement and a safety plan. The stay away agreement instructed the classmate to refrain from communicating or otherwise interacting with the student “[o]n the way to/from school, in the community, [on] social media or [at] school events.” The stay away agreement was in effect from May 26, 2017 through June 30, 2018 “unless otherwise terminated or extended ....” The district also developed a safety plan for the student which provided specific direction as to how the student would remain separated from the classmate, the individuals responsible for implementing and monitoring such separation and the circumstances under which district officials and the student’s parents would meet “to review the plan and any issues that may have arisen.”
Petitioner appealed the vice principal’s October 2017 DASA determination to the superintendent in accordance with respondent’s DASA policy. Respondent engaged outside counsel to conduct a district-level investigation in response to petitioner’s appeal.
On November 6, 2017, outside counsel issued a written recommendation to the superintendent. Following an investigation of the May 22, 2017 incident and after a review of the relevant law and conversations with several witnesses, including the classmate, outside counsel concluded that the classmate made the comments in question; that the comments violated the district’s code of conduct; and that the district appropriately imposed discipline upon the classmate for making such comments. However, outside counsel concluded that, while the May 22, 2017 texts were “wholly inappropriate, angered and upset the [student] violated the District’s Code of Conduct and warranted formal discipline,” the incident did not rise to level of bullying or harassment within the meaning of DASA, nor did it constitute sexual harassment within the meaning of the district’s code of conduct.
With respect to whether the classmate engaged in an act of bullying or harassment, outside counsel found that while “[s]ome of the elements of the DASA definition” were present, the “May 22 texts” did not “create  a hostile environment that had or would have the effect of unreasonably and substantially interfering with [the student’s] mental, emotional or physical well-being.” Outside counsel so concluded because “there [was] no evidence to substantiate [a finding] that the texts were widely disseminated ....” and there was no evidence that the classmate sent the texts to “intimidate, scare or threaten” the student.
Outside counsel also concluded that the text messages constituted a “single incident” rather than “a pattern of persistent behavior.” In this regard, outside counsel discussed an earlier, “rape fantasy” story which the student alleged that the classmate sent to others via text message on December 2, 2015 and about which the student eventually learned. While the text messages provided to outside counsel did not identify the sender or recipient, the student indicated that she “knew it was about her because she recalled seeing an unredacted copy in December 2015.” Outside counsel noted that the classmate denied writing such text messages, but acknowledged later text messages exchanged between the student and the classmate on November 7, 2016 in which the student confronted the classmate by writing: “What about that rape story you wrote about me? ... It freaked me out and I couldn’t even look at you for the longest time. What you did was disgusting and I was scared.” In response, the classmate wrote:
Yeah, I know it’s awful. I feel like I’ve told you before, but if not: I’m immeasurably sorry. It was just a terrible, awful thing to do, and no one should ever have that happen to them. It was a terrible, thoughtless action on my part to not only think up such a thing, but to share it. I still feel awful about it.
Nevertheless, outside counsel concluded that “it cannot be substantiated that [the classmate] wrote or sent the December 2, 2015 text story about [the student].” Outside counsel also stated that even assuming, arguendo, that the classmate authored the rape story, this and the May 22, 2017 incident did not “demonstrate a pattern of harassing or persistent behavior ... that created a hostile environment that had or would have the effect of unreasonably and substantially interfering with [the student’s] mental, emotional or physical well-being or educational opportunities.” Outside counsel explained that such text messages existed in the context of “hundreds of texts” between the student and the classmate that indicated that “from about January or February 2016 through March 2017, [the student and the classmate] were friends” who discussed a “wide range of subjects” including summer jobs, restaurant recommendations, music, school, vacations, and relationship advice.
By letter dated November 8, 2017, the assistant superintendent for instruction, the superintendent’s designee, adopted outside counsel’s recommendations. Petitioner appealed this determination to respondent in accordance with respondent’s DASA policy.
In a written decision dated January 5, 2018, respondent indicated that, although it had “discussed” petitioner’s DASA appeal in executive session on December 14, 2017, it would not render a decision on petitioner's appeal because “it [was] clear to us that any determination [it] might render would be perceived by [petitioner] as biased.” For this reason, the board determined “to waive any right [the board had] as part of the Resolution Procedure under Policy 0115 and its implementing regulations.”
In an affidavit, the superintendent for instruction avers that, in or about the winter of 2017 and 2018, it was determined that the stay away agreement was being used as a “weapon” against the classmate. Consequently, in a letter to petitioner dated January 18, 2018, the assistant superintendent for instruction stated that the “stay away agreement and safety plan [we]re no longer serving their intended purpose.” Therefore, in this letter, the assistant superintendent for instruction “rescinded” the stay away agreement and safety plan, deeming them “null and void.” In place of these plans, the district “administratively directed” the student and the classmate “to remain away from each other for the remainder of the 2017-2018 school year.” This appeal ensued. Petitioner’s request for interim relief was granted in part on February 28, 2018.
Petitioner contends that the district’s investigation and subsequent determination that no DASA violation occurred lacked a rational basis, was affected by procedural irregularities and was inconsistent with DASA and the district’s own policies. Specifically, petitioner contends that the district failed to consider and investigate all incidents of bullying committed by the classmate. Petitioner also contends that respondent failed to apprise him of his rights pursuant to DASA and “dissuaded” the student from obtaining other evidence to support her claim. Petitioner further asserts that the assistant superintendent for instruction’s revocation of the stay away agreement and safety plan in January 2018 was arbitrary and capricious. Petitioner additionally complains that the classmate has violated the stay away agreement and safety plan on multiple occasions. Finally, petitioner argues that respondent denied petitioner access to “numerous texts” for petitioner’s review during the preparation of this appeal.
For relief, petitioner requests a determination that the classmate’s May 22, 2017 conduct violated the student’s rights under DASA and her right “to access educational and extracurricular opportunities.” Petitioner further requests that I order respondent “to immediately restore the stay away agreement and safety plan”; to
“implement a comprehensive, campus-wide policy education and awareness program” informing students and adults about DASA; and to “immediately establish and fund a[n] independent gender-bias monitor with investigative and reporting authority ... that directly reports to the Department of Education, the Office of the Attorney General, the Office of Civil Rights at the U.S. Department of Education  and the residents of the City of Albany.”
Respondent contends that its determination of petitioner’s DASA claim and its revocation of the stay away agreement and safety plan were reasonable. Respondent denies that its investigation was incomplete or that it withheld any information from petitioner. Respondent further asserts that it investigated all alleged violations of the stay away agreement and found them to be without merit. Respondent also asserts that it provides comprehensive training to its staff regarding DASA and petitioner’s suggestions to the contrary are without merit.
First, I must address a preliminary matter. Respondent has objected to the scope of petitioner’s reply. 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). 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.
The appeal must be dismissed, in part, as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937). Here, to the extent petitioner asks that I immediately restore the stay away agreement and safety plan, declare that the classmate’s May 22, 2017 conduct “consistute[d] sexual harassment, bullying, cyberbullying, or gender-based discrimination against the student victim” and violated the student’s right “to access educational and extracurricular opportunities,” these claims must be dismissed as moot. In a letter dated July 3, 2018 submitted in response to a directive by my Office of Counsel, counsel for respondent indicated that the student and the classmate graduated from respondent’s district on or about June 24, 2018. Thus, because both students no longer attend school within respondent’s district, no meaningful relief can be granted regarding the district’s obligations to ensure the student’s access to educational and extracurricular activities and/or her safety while in school. Accordingly, petitioner’s request for a declaration that the classmate’s actions “against the student victim” constituted bullying or harassment would be advisory under the circumstances, and 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 He, 57 Ed Dept Rep, Decision No. 17,299; Appeal of Leake, 57 id., Decision No. 17,235; Appeal of a Student with a Disability, 48 id. 411, Decision No. 15,899). Accordingly, these claims are moot and the appeal must be dismissed.
Petitioner’s remaining claims must be dismissed on other grounds. Petitioner’s request that I “immediately establish and fund a[n] independent gender-bias monitor with investigative and reporting authority .... that directly reports to the Department of Education, the Office of the Attorney General, the Office of Civil Rights at the U.S. Department of Education  and the residents of the City of Albany” is outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310. An appeal to the Commissioner is appellate in nature and does not provide for investigations or the creation of an investigate entity (Appeal of Huffine, 48 id. 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).
Moreover, to the extent that petitioner requests that I direct the district to “implement a comprehensive, campus-wide policy education and awareness program” informing students and adults about DASA, the record indicates that respondent has a training program and petitioner has failed to provide any evidence this program does not comply with DASA. 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 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). Therefore, I find that petitioner has failed to carry his burden of proof with respect to this claim.
However, while I am constrained to dismiss the appeal for the reasons described above, I am compelled to make several observations on this record. First, given the dispute over the facts and circumstances surrounding the December 2015 texts and their authorship, I remind respondent that a thorough investigation of any allegations involving harassment and bullying must be conducted in accordance with DASA. Here, for example, while the identity of the sender(s) and the recipient(s) were not identified in the December 2015 texts, the student asserts that she confronted the classmate about writing the “rape story” and the classmate apologized. This is corroborated by the text message exchange quoted above, where the classmate apologized in response to the student’s claim that he authored the “rape story” about her. Yet, despite this evidence, there is no evidence in the record indicating that any investigation was conducted to determine who authored these texts, other than outside counsel asking the classmate if he was the author.
Second, I note that, upon review of the record, respondent’s policy 0115.1 is not entirely consistent with DASA. Education Law §12(a) prohibits harassment and bullying, which are jointly defined in Education Law §11(7) as:
[T]he creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that
(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; or
(d) occurs off school property and creates or would foreseeably create a risk of substantial disruption within the school environment, where it is foreseeable that the conduct, threats, intimidation or abuse might reach school property.
Respondent’s policy, however, does not contain specific reference to subsection (c) in the relevant portion of its policy and, thus, does not directly contemplate “emotional” harm as potential bullying and harassment. Respondent should review and revise its policy to reflect DASA’s complete definition of bullying and harassment.
Third, it appears that this matter was investigated by respondent’s then-vice principal because, according to the record, “the designated DASA coordinator was also the House Principal (i.e. the administrator in charge of an individual academy at Albany High School) for each student who had to interact with each of them on a frequent basis,” and “it was deemed more appropriate to conduct this investigation at [the vice principal] level, one administrative level removed from the students.” Respondent has not explained how this problem was unique to this case; in other words, if respondent is concerned that the DASA coordinator/House Principal’s frequent interaction with students is a ground for recusal from DASA investigations, he or she will rarely, if ever, be an appropriate individual to conduct an investigation, thereby severely limiting his or her effectiveness and ability to serve as a DASA coordinator. Respondent is encouraged to consider designating another individual to serve in that capacity who can properly fulfill the role as outlined in DASA and State regulations.
Finally, I note that the record does not support respondent’s refusal to decide petitioner’s appeal. Respondent reasoned that it was justified in so refusing because “any determination [it] might render would be perceived by [petitioner] as biased.” Respondent was obligated under its own policy to consider and decide petitioner’s appeal. Therefore, I admonish respondent to adhere to its policies and decide all DASA appeals properly presented to it. I also remind respondent that the legal obligations of members of the board must be carried out in accordance with applicable provisions of law and policy regarding conflicts of interest and codes of ethics as they relate to individual board members.
Although the appeal must be dismissed as moot, given the serious nature of the allegations raised in this appeal and the concerns noted above regarding respondent’s policy and its response to such allegations, I am directing my Office of Student Support Services to provide guidance and technical assistance to the district in order to ensure that the district appropriately investigates all incidents of harassment and bullying.
In light of the above disposition, I need not address the parties’ remaining contentions. However, nothing herein should be construed a minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.
THE APPEAL IS DISMISSED.
END OF FILE
 Following respondent’s July 3, 2018 letter, petitioner sent a written response. Respondent thereafter submitted a written response to the July 3, 2018 letter, and petitioner again responded. I have accepted these letters into the record and have considered them in rendering my decision.
 In this respect, I note that the classmate initially denied sending the May 2017 text messages.