Appeal of D.D. and L.D., on behalf of their son R.D., from action of the Board of Education of the City School District of the City of Saratoga Springs, Michael Piccirillo as superintendent, Douglas Silvernell as assistant superintendent, Lynette Whaley as director of personnel Development and Dignity Act Coordinator, and Kristy Moore as principal regarding student bullying.

Decision No. 17,516

(October 2, 2018)

Law Offices of Veronica Reed, attorneys for petitioners, Veronica Reed, Esq., of counsel

Honeywell Law Firm, PLLC, attorneys for respondents, Paul M. Aloy and Kate S. Howard, Esqs., of counsel

ELIA Commissioner.--Petitioners appeal from action of the Board of Education of the City School District of the City of Saratoga Springs and Michael Piccirillo as superintendent, Douglas Silvernell as Assistant Superintendent, Lynette Whaley as Director of Personnel Development and Dignity Act Coordinator, and Kristy Moore as principal of Geyser Road Elementary School (collectively, “respondents”), alleging that respondents violated the Dignity for All Students Act (“DASA”) in handling petitioner’ complaints about alleged bullying and harassment of petitioners’ son R.D. (“the student”).  The appeal must be dismissed.

This appeal concerns interactions between the student and a classmate over the course of multiple school years.  At all relevant times for purposes of this appeal, the student and classmate attended respondent’s Geyser Road Elementary School.  During the 2014-2015 school year, the students were assigned to the same kindergarten classroom. 

While the parties agree that the classmate has, on occasion, acted improperly toward R.D., they sharply differ as to their characterization of these events.  A brief summary of the events alleged by petitioners is provided below.  With the exception of the February 14, 2015 incident, each incident occurred during the school day on school grounds:

• On September 3, 2014, the classmate told the student that he might “die” if he played soccer;

 

• In or about January 2015, the classmate told the student that he could not play with another student;

 

• On February 13, 2015, the classmate hit the student in the face while they were in the cafeteria;

 

• On February 14, 2015, the classmate struck the student in the face while in a “bounce house” at a birthday party held off school grounds during non-school hours;

 

• On February 25, 2015, the students were passing around a pen.  The teacher asked the student to pass the pen to another student to allow him or her to take a turn.  The classmate then said, in a loud voice, “why ask him, he is only going to give it to [S.C.].”  According to the record, S.C. is a friend of the student;

 

• On February 26, 2015, while sitting on a rug together, the classmate kicked the student in the leg.

Respondent Moore met with petitioners on February 26, 2015.  Respondent Moore also developed a plan to address interactions between the student and classmate.  The plan included physical separation of the students and their cubbies.  The students’ classroom teacher also took steps to reinforce appropriate and expected behaviors.  Respondent Moore recommended peer mediation; however, petitioners did not agree to participate in mediation.

Respondents began implementing the behavior plan on or about March 5, 2015.  On that date, petitioners allege that when the student approached the classmate, the classmate told him: “You can’t come near me.”

Following implementation of the behavior plan, respondents allege that there have been no subsequent inappropriate interactions between the student and the classmate.  However, petitioners allege that the classmate continued to behave inappropriately toward the student.  Petitioners allege that, for example, on April 24, 2015, the classmate told the student he had to leave a sandbox on the playground.

The students were assigned to separate classrooms for the 2015-2016 school year.  The students, however, continued to attend lunch and recess together.

On September 9, 2015, petitioners alleged that the classmate told the student: “The rules don’t apply this year[;] I can play with you guys.”  According to the record, respondents reminded classroom teachers “of the sensitivity of the matter” and the student’s teacher changed her recess time specifically to prevent interactions between the student and the classmate.

On September 10, 2015, petitioner L.D. was present in the school cafeteria and alleged that the classmate was “heckling” the student.  Respondent Moore investigated this incident and found it to be without merit.  The parties agree that no further incidents occurred for the rest of the 2015-2016 school year.

The students were again assigned to separate classrooms for the 2016-2017 school year.

According to the record, petitioner L.D. asked the student’s teacher for the 2016-2017 school year if the student could be given the unilateral authority to exclude the classmate during shared recess time.  The teacher denied this request.

Petitioners subsequently asserted numerous instances of alleged “bullying” during September and October 2016.  Petitioners allege that, for example, the classmate took a soccer ball away from the student on September 7, 2016. Respondents investigated this claim and concluded that the students were “interacting appropriately” and the student “follow[ed] [the classmate] to different places on the playground.”  The record reflects that respondents investigated each of petitioners’ concerns and communicated their determination to petitioners that no bullying or harassment had occurred.

On September 22, 2016, petitioners met with respondent Moore, the superintendent and the assistant superintendent to discuss petitioners’ concerns.  Petitioners stated that the student was angry and did not want to attend school.  Petitioners requested additional measures to keep the students separated at recess.  The school administrators indicated that they had not observed anger or resistance to attending school during school hours.  The school administrators denied petitioners’ request for additional recess interventions, reasoning that adults monitored the students at recess time and it was important for both children to learn how to interact without adult intervention.  Petitioners again declined school-based counseling and peer mediation.

On September 23, 2016, respondent Moore held a follow-up meeting with petitioners and the student.  At this meeting, respondent Moore told the student how he could contact her or his teacher if he needed assistance.  According to respondents, the student did not seem particularly concerned during the meeting and was “much more interested” in diverting the topic of conversation to a Boy Scout popcorn sale.

On September 27, 2016, petitioner L.D. alleged that the classmate had joined a soccer game in which the student had been engaged without the student’s permission. Respondent Moore observed this interaction and did not find the interaction to be inappropriate in any way.

On September 28, 2016, petitioners reported that the student and the classmate disagreed as to who would play goalie during physical education class.  Respondent Moore investigated this incident.  The physical education teacher indicated that there had been no “altercation or interaction.”  Also on September 29, 2016, petitioners alleged that the student had played kickball with the classmate, and that this “created a mentally unsettling situation” for the student.  A school social worker was present and observed the interaction; she did not observe any inappropriate interactions.

On September 29, 2016, petitioners complained that after the student asked a friend to play football, the classmate subsequently invited the friend to play soccer.  The third student declined to participate in either activity, and the student proceeded to play kickball with a group that did not include the classmate.  Respondent Moore investigated.  She determined that nothing improper had occurred, and that the student subsequently played kickball with a group of friends.

On October 2, 2016, the student was playing football with a group of friends.  The classmate approached and asked to join the game.  While it did not appear that the classmate noticed the student among the group, respondent Moore nevertheless intervened and suggested that the students break into two smaller groups.  The student and the classmate were placed in separate groups and played without incident.

On October 14, 2016, the student kicked a soccer ball past a goal.  The classmate retrieved the ball and returned it to the student.  The school social worker observed the incident and reported that it was an appropriate, friendly interaction.

Petitioners requested another meeting with respondent Moore and respondent Whaley, the district’s Dignity Act Coordinator.  This meeting was held on October 19, 2016.  Respondents Moore and Whaley indicated that all of the interactions during the 2016-2017 school year of which petitioners had complained were age-appropriate, cordial and did not constitute bullying or harassment within the meaning of DASA.

In a letter dated October 21, 2016, petitioners identified a host of incidents, including those summarized above, and alleged that the student had been the victim of bullying.  Petitioners further alleged that the student had “increased anxiety and panic attacks”; that he exhibited “intense anger and madness for no apparent reason”; and did “not want to attend school,” instead preferring to “stay home with his Mom.”  Petitioners requested that respondent Moore “investigate these incidents promptly and thoroughly.”

In a letter dated November 2, 2016, respondent Moore indicated that “each time [petitioners] ha[d] alleged that [the student] was bullied, harassed, or discriminated against ... an investigation occurred and you were apprised of the outcome of the investigation.”  Respondent Moore further indicated that, while she was concerned by petitioners’ claim that the student suffered anxiety and panic attacks at home and did not want to attend school, this was inconsistent with what school administrators and employees were observing at school.  This appeal ensued.

Petitioners contend that the student was bullied and harassed by the classmate within the meaning of DASA.  Petitioners allege that respondents failed to investigate or remediate the situation and have caused the student emotional harm.  Petitioners request the issuance of orders: (1) “ensur[ing]” that respondents comply with DASA; (2) making an August 31, 2016 guidance memorandum concerning DASA mandatory; (3) requiring respondents’ district to screen a particular anti-bullying film; (4) requiring respondents to “hold an annual school Mix it Up at Lunch Day”; and (5) mandating that respondents “review and revise, with parent and student input, the school’s model of discipline ....”  Petitioners also request an audit and continued oversight of respondents’ district; an investigation into the alleged acts of bullying and harassment; a declaration that the student is entitled to certain rights and protections as a victim of bullying; and reimbursement of “costs ... associated with bringing and pursuing this petition.”

Respondents contend that the appeal must be dismissed as untimely. Respondents additionally argue that certain of petitioners’ allegations are outside the scope of an appeal pursuant to Education Law §310.  Respondents further contend that petitioners have failed to plead or prove a violation of DASA.

First, to the extent that petitioners seek a declaratory ruling that the student is entitled to all rights and protections afforded him under applicable laws and regulations, such request must be denied.  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).

To the extent that petitioners seek an investigation, an audit, and/or oversight by the New York State Education Department into respondents’ actions in investigating and reporting incidents of bullying, harassment and discrimination, such claim must also be dismissed (Appeal of Rutkoske, 57 Ed Dept Rep, Decision No. 17,393).  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

To the extent petitioners seek reimbursement for their costs and disbursements in bringing this appeal, such request must also be denied.  The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

The appeal must be dismissed as untimely.  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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). 

Here, petitioners purport to appeal from respondent Moore’s November 2, 2016 letter which indicated that the district had investigated the acts of which petitioners complained and had found no evidence of bullying and harassment.  However, respondents allege, and the record reflects, that respondents promptly investigated each of the incidents referenced in respondent Moore’s letter and thereafter communicated their determination to petitioners in accordance with board policy.  Indeed, the record reflects that the most recent incident of which petitioners complain occurred on October 14, 2016, and was addressed by respondents in October 19, 2016 meeting with petitioners.  Petitioners’ October 21, 2016 letter merely reiterated the incidents alleged since September 2014 and requested that respondents again investigate such incidents.  Such request was in effect a request for reconsideration and a request for reconsideration does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).

Although in response to petitioners’ October 21, 2016 letter, respondent Moore summarized incidents spanning two school years in an attachment to her November 2, 2016 letter, her reference to these prior investigations did not constitute a new action by respondents which restarted the 30-day time limitation.  Therefore, all of respondents’ actions in response to petitioners’ multiple complaints of bullying and harassment which petitioners claim violated DASA occurred more than 30 days prior to commencement of the instant petition on November 15, 2016.  Petitioners have not, as required, set forth good cause for this delay in the petition (see 8 NYCRR §275.16).  Accordingly, petitioners’ claims must be dismissed as untimely (Appeal of R.T. and E.T., 57 Ed Dept Rep, Decision No. 17,340; Appeal of R.E., 56 id., Decision No. 17,003).

Even if the petition were not dismissed as untimely, it would 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 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).

First, petitioners’ requests for systemic relief would be dismissed for failure to state a claim upon which relief may be granted. In their reply, petitioners assert that they are not seeking to overturn any of respondents’ determinations.  Indeed, other than the request for a declaratory ruling that the student is entitled to all rights and protections afforded him under applicable laws and regulations, the petition primarily seeks systemic relief; i.e., orders: (1) that respondent board maintain an environment free of discrimination and harassment and prohibit conduct which is inconsistent with DASA; (2) that respondents comply with State Education Department guidance on harassment and bullying; and (3) directing respondent board to review and revise its Code of Conduct provisions relating to harassment, bullying and discrimination to ensure that it is progressive, measured, balanced and age-appropriate.  In addition, petitioners request that the Commissioner order a district-wide showing of a specific film on bullying, that the Commissioner order that respondent hold an annual “Mix It Up at Lunch Day” or a similar awareness program, and that a representative of the Commissioner or a third party review the incidents and determine if they constituted material incidents of bullying and harassment.  

Petitioners, however, do not explain the disconnect between their claim that they are not challenging respondents’ underlying determinations regarding alleged incidents of bullying and harassment but are nevertheless entitled to broad, systemic relief.  Such relief would be wholly inappropriate absent a showing that respondents violated the law.  Therefore, on this record, petitioners have not established a clear legal right to the systemic relief which they seek.

Additionally, even assuming, arguendo, that petitioners challenged respondents’ determinations regarding the alleged incidents of bullying and harassment, these, too, would be dismissed on the merits.  Education Law §11(7) defines harassment and bullying, in relevant part, as:

the 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 .... Acts of harassment and bullying shall include, but not be limited to, those acts based on a person’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.

Petitioners’ primary contention is that the classmate has engaged in a pattern of bullying and harassment of the student over multiple school years and that respondents have failed to take steps to eliminate the hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior and ensure the safety of the student as required by Education Law §13(1)(e).  Respondents contend that petitioners have not met their burden of proving that any of the alleged incidents were “material incidents” which must be reported under DASA as defined in 8 NYCRR §100.2(jj)(1)(ix), since on this record they are not “verified incident[s]” within the meaning of the regulation.

First, I must address respondents’ contention, expressed in an affidavit by the Dignity Act coordinator and at an October 19, 2016 meeting with petitioners, that no harassment or bullying occurred because the classmate’s interactions with the student were not based upon a protected characteristic (e.g., race, gender, or weight).  Education Law §11(7) includes a list of student characteristics on which acts of bullying and harassment may be based.  However, the statute indicates that harassment and bullying “includes but is not limited to” such characteristics.  Thus, respondents’ interpretation of the statute is foreclosed by its plain language (see In re: Sterling United, Inc., 674 Fed App’x 19 [holding that the phrase “including, but not limited to” introduces “a subset of, and does not function as a limitation on,” a defined category]).  This interpretation is consistent with the intent of DASA, which is to afford all students in public schools an environment free from discrimination and harassment (Education Law §10).  Thus, behavior that otherwise fits the definition of harassment and bullying in Education Law §11(7), such as acts that involve threats, intimidation or abuse, does not become permissible simply because it was not based upon one of the illustrative characteristics identified in Education Law §11(7).

Not all altercations or disagreements between students rise to the level of bullying or harassment, however.  Indeed, many of the incidents described in this record appear to have been innocent interactions, particularly considering the young age of the students involved.  These include the following incidents: (1) on February 25, 2015, the student was at a smartboard in front of the class and was asked to choose another student to take the next turn and the classmate commented “Why ask him, he is only going to give it to [his friend]?”; (2) on September 9, 2015, the classmate approached the student and told him that “[t]he rules don’t apply this year, I can play with you guys”;  (3) on September 7, 2016, the classmate took a ball away from the student during a game of keep away; (4) on September 14, 2016, the classmate switched footballs with the student; (5) on September 19, 2016, two groups of students, one including the classmate and the other including the student, engaged in an argument over who could play and the rules of basketball generally; (6) on September 28, 2016, in a physical education class, the classmate and the student argued about whether the student should replace the classmate as a soccer goalie; (7) on September 29, 2016, the student asked another student to play football and the classmate asked that same student to play soccer; (8) on October 3, 2016, the classmate approached a group of students playing football that included the student and asked to join them; and (9) on October 15, 2016, the student kicked a ball past the goal while playing soccer and the classmate retrieved it and returned it to the student.  Petitioners have not proven that respondents acted arbitrarily or capriciously in determining that these incidents did not constitute bullying or harassment.

Further, petitioners have not proven that some of the alleged incidents occurred as described by petitioners.  Respondents indicate that many of petitioners’ allegations were determined to be unfounded, such as the alleged incident on September 3, 2014 in which the classmate told the student that he could die playing soccer and the alleged incident of the classmate heckling the student on September 10, 2015.

The only incidents that could arguably have constituted bullying and harassment occurred in the 2014-2015 school year, when the two students were in kindergarten.  The record reveals two instances in which the classmate struck or kicked the student at school, and a third incident at a party off school premises in which petitioners assert that the classmate struck the student while they played in a “bounce house.”  There were also some other incidents in which the classmate inappropriately attempted to exclude the student from activities; namely, an incident in January 2015 in which the classmate told the student not to play with a friend, and an incident on April 24, 2015 in which the classmate approached the student at a sandbox and told him to leave.[1] 

The two incidents in which the classmate struck the student while at school, irrespective of whether they constituted bullying or harassment, called for intervention by respondents.  It appears from the record that respondents investigated the incidents and took appropriate action.  In the 2015-2016 school year, the two students were placed in separate classes and, initially, their recess schedule was altered to keep them apart.  In November 2015, both classes resumed having recess together and respondents provided additional supervision while the students were at recess.  Petitioners admit in the petition that, after September 2015, there were no incidents of bullying or harassment for the remainder of the 2015-2016 school year.  In the 2016-2017 school year, the two students were again assigned to different classrooms, though they had shared recess and physical education periods.  Respondents also recommended peer mediation and counseling, which petitioners declined. 

Viewing the record as a whole, I am not persuaded that petitioners have met their burden of proving that there was a pattern of bullying and harassment of the student over multiple school years or that respondents failed to take appropriate steps to investigate and eliminate a hostile environment, prevent recurrence and protect the safety of the student.  Respondents have submitted evidence concerning their investigation of the incidents, which included respondents’ own observations and interviews with eyewitnesses.  The record demonstrates that respondents promptly investigated each incident, reported the results of the investigations to petitioners, and took action to facilitate appropriate interactions between the student and classmate and provide appropriate support, even when they concluded they were not compelled to do so based upon the results of the investigations. 

Even if I assumed that the two incidents in 2015 in which the classmate struck the student reasonably caused or would be expected to cause the student to fear for his physical safety at that time, I cannot conclude on this record that such altercations in kindergarten would reasonably be expected to cause the student to fear for his safety in second grade.  The events occurred more than twenty months before this appeal was commenced, and respondents subsequently took action to intervene and minimize contact between the two students.

There is also no proof that the alleged bullying substantially interfered with the student’s educational opportunities or benefits and the evidence of the impact of the alleged bullying on the student’s emotional well-being is not persuasive.  The only evidence submitted by petitioners in this regard is a letter from the student’s pediatrician stating that the student has experienced anxiety triggered by being bullied at school and has started to have panic attacks.  The physician’s letter is relevant insofar as it constitutes evidence of the subjective effect which interactions with the classmate may have had on the student.  However, the physician does not disclose the factual basis for his opinion or allege that he witnessed any of the above-described events.  As such, the letter is not relevant to the issue of whether the classmate actually engaged in bullying or harassment of the student and/or whether respondents acted in accordance with DASA.  Therefore, even assuming that the student has experienced “anxiety” and “panic attacks” and that these reactions were attributable to actions taken by the classmate, there is no basis to hold respondents responsible for such reactions because petitioners have failed to prove that the classmate engaged in bullying or harassment within the meaning of DASA.

I have considered petitioners’ remaining arguments and requests for relief and find them to be without merit.  However, I note that nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by harassment and bullying in public schools.

THE APPEAL IS DISMISSED.

END OF FILE