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

Decision No. 17,522

(October 16, 2018)

Ingerman Smith, LLP, attorneys for respondent Steven A. Goodstadt, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the actions of the Board of Education of the East Islip Union Free School District (“respondent”) regarding its response to allegations that her daughter was subjected to bullying, harassment and discrimination in violation of the Dignity for All Students Act (“DASA”; Education Law, Article 2).  The appeal must be dismissed.

The student attended respondent’s high school at all relevant times during the events described in this appeal.  The record reflects that the student played on the girls’ softball team during this time.[1]

By way of background, petitioner alleges that, “[s]tarting on or about May 20, 2015,” the girls’ softball coach (“coach”) improperly made the student play in a softball game despite explicit instructions by the student’s orthopedist that she not be allowed to do so.

On March 20, 2016, the coach sent a screenshot of a text conversation between himself and petitioner to the athletic director.  The text conversation revealed that petitioner was upset that her daughter not been selected by the coach as a “Key Player” for the softball team that year.

On or about March 21, 2016, petitioner called the athletic director and asked to meet with him to address her concerns about the coach.  This meeting took place later that day.  At the meeting, petitioner accused the coach of bullying her daughter.  In this respect, the record includes a DASA referral form dated March 21, 2016 identifying petitioner’s allegations against the coach.  The DASA form alleges that the coach singled the student out and yelled at her but did not identify any specific examples of such conduct.  As a result of petitioner’s accusations, the athletic director began an investigation pursuant to DASA.  The athletic director was assisted in the DASA investigation by a guidance counselor at the high school.

On March 21 and 22, 2016, the guidance counselor and athletic director spoke to the student, other players on the team and the coach as part of the investigation.  According to respondent, the student stated that she did not feel singled out by the coach, but that the coach did “yell sometimes at her” and the other players on the team.  The record also reflects that the other players who were interviewed stated that they did not feel harassed, threatened, bullied or otherwise uncomfortable around the coach.  The players also stated they had not witnessed the coach harass or intimidate other players on the team.  As a result of his investigation, the athletic director determined that the bullying allegations against the coach were unfounded.  He notified petitioner of his findings on March 24, 2016.[2]

On March 25, 2016, the student was injured during softball practice.  Petitioner alleges that this injury occurred during a “punishment drill” ordered by the coach.  Petitioner contends that the coach ordered this drill to retaliate against the student for filing a DASA complaint against him.

On April 13, 2016, the superintendent met with petitioner regarding her continued complaints about the coach.  Petitioner requested that the coach be fired; the superintendent declined to do so.

Petitioner indicates that, on or about April 13, 2016, she expressed “concern” to the superintendent “regarding [the] [c]oach being on a trip [to Binghamton] with the girls because of some very credible rumors that she had learned” regarding the coach’s behavior when he was in charge of the softball team at his prior employer’s school.  Therefore, according to the record, respondent cancelled the upcoming trip.  Petitioner further alleges that, after this incident, the coach and the high school athletic director informed the softball team that petitioner had “raised the complaint” against the coach.  Petitioner alleges that members of the softball team subjected her daughter to “verbal abuse and exclusion” since she had complained about the coach and caused the Binghamton trip to be cancelled.

Petitioner filed a second DASA complaint on November 18, 2016 about the teammates’ and coach’s alleged treatment of the student.  The assistant principal of the middle school investigated, and the claims were determined to be unfounded.  The assistant principal informed petitioner of this determination in a letter dated January 20, 2017.

On or about January 17, 2017, the superintendent decided that someone from the district’s central administration should further investigate petitioner’s second DASA complaint.  Thereafter, the district’s director of special education/pupil personnel services (“special education director”) assumed responsibility over the DASA investigation.

In January 2017, the special education director arranged for interviews with petitioner, members of the softball team, including the student, parents of softball team members, and the coach.  After conducting an investigation, the special education director met with, among others, petitioner and the student’s grandmother on February 3, 2017 and informed them of her determination that the allegations were unfounded.  At the meeting, petitioner provided additional copies of text messages in support of her claims.  By letter dated February 6, 2017, the special education director informed petitioner that her DASA claims had been determined to be unfounded.  Petitioner contacted the special education director on February 7, 2017 and asked whether the additional text messages she had provided warranted “further investigation.”  The special education director informed petitioner that she had considered the text messages in making her determination and that they did not, in her view, warrant further investigation.  This appeal ensued.

Petitioner generally asserts that the student was bullied by the coach and six other players on the softball team and that the district mishandled petitioner’s DASA complaints.  Petitioner also complains that, on at least two occasions, the coach unreasonably required the student to participate in physical activity which caused her injury.  Petitioner contends that the coach engaged in various forms of bullying and harassment, including forcing student athletes to gamble for profit in a “pay to play” scheme.  Petitioner also complains that several members of the softball team, who were allied with the coach, sent inappropriate text messages to the student which were “abus[ive]” and excluded her from team or group activities.  As relief, petitioner requests that the coach and the athletic director be fired from their positions and that the six players who allegedly bullied the student be suspended.

Respondent argues that the appeal must be dismissed because petitioner failed to join the coach, who is a necessary party; that the appeal is untimely; that petitioner failed to comply with §275.10 of the Commissioner’s regulations regarding the exhibits submitted with the petition; and for lack of jurisdiction.  Respondent also contends that petitioner failed to state a claim upon which relief can be granted.

First, I must address the procedural issues.  Petitioner filed a reply in this matter.  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.

Next, respondent contends that the appeal must be dismissed because petitioner failed to join the coach and the athletic director, who are necessary parties to this appeal.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934). 

According to the record, petitioner only served a copy of the petition on respondent’s district clerk.  Moreover, petitioner did not name the coach or the athletic director in the caption of the appeal.  I agree with respondent that the coach and the athletic director are necessary parties to this appeal because one of petitioner’s requests for relief is termination of their employment and their rights would be adversely affected if this relief were granted (see Appeal of Trojahn, 57 Ed Dept Rep, Decision No. 17,360; Appeal of McCart, 49 id. 229, Decision No. 16,010).  Similarly, petitioner’s second request for relief is that the six students who are members of the softball team be “held accountable with out of school suspension....”  Those students, too, would be adversely affected by such a determination and are necessary parties (see Appeal of A.L. and H.L., 57 Ed Dept Rep, Decision No. 17,089).

While petitioner suggests that these deficiencies may be overlooked because she is appearing pro se, it would be fundamentally unfair to fire the coach or discipline the students without affording them an opportunity to be heard and interpose any defenses which may be appropriate.  Therefore, petitioner’s failure to join these individuals is fatal, her pro se status notwithstanding (see e.g. Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,907; Appeal of Jiava, 55 id., Decision No. 16,817).  Accordingly, the petition must be dismissed for failure to join the coach, athletic director and students as necessary parties (see e.g. Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,245; Appeal of Nelson, 55 id., Decision No. 16,845).

Moreover, as relief, petitioner requests only that the coach and athletic director be fired from their respective positions and that the six players who allegedly bullied the student receive out of school suspensions.  With respect to the coach and athletic director, I have consistently held that only a board of education has the authority and responsibility to determine if disciplinary action against a district employee is warranted, not the Commissioner (see e.g. Appeal of M.B. and M.B., 56 Ed Dept Rep, Decision No. 17,044; Appeal of Munoz-Feliciano, 54 id., Decision No. 16,773; Appeal of Lloyd, 39 id. 537, Decision No. 14,303; Appeal of Basil, 37 id. 568, Decision No. 13,929).  Although Education Law §310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including matters relating to the discipline of school personnel, the Commissioner lacks jurisdiction to impose discipline on district employees (see e.g. Appeal of Leake, 57 Ed Dept Rep, Decision No. 17,236; Matter of Richardson, 24 id. 104, Decision No. 11,333, Raymond, et al. v. Ambach, Supreme Court, Albany County, Special Term; Cholakis, J.; judgment granted dismissing petition to review; May 23, 1985; n.o.r.).  Such employee discipline is within respondent’s exclusive jurisdiction and is generally subject to procedures established in statute or in applicable collective bargaining agreements and/or employment contracts (see Education Law §§1709(16) and (33), 3020, 3020-a; Civil Service Law §75).

To the extent petitioner requests that I order respondent to suspend the other students, I note that petitioner lacks standing to compel respondent to impose discipline on other students (see e.g. Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153).  Accordingly, the appeal must also be dismissed in this regard.

Although the appeal must be dismissed for procedural reasons, nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by 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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