Decision No. 17,842
Appeal of Y.O., on behalf of J.N., from action of the Board of Education of the Hastings-on-Hudson Union Free School District, Amy Cazes as Principal and John DeKams as Assistant Principal regarding the Dignity for All Students Act.
Decision No. 17,842
(June 1, 2020)
Keane & Beane, P.C., attorneys for respondent, Stephanie M. Roebuck, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner, on behalf of her son, J.N., appeals from action of the Board of Education of the Hastings-on-Hudson Union Free School District (“respondent board”) regarding a Dignity for All Students Act (“DASA”) complaint. Petitioner also asserts claims against Amy Cazes (“respondent Cazes”), as principal, and John DeKams (“respondent DeKams”), as assistant principal, in connection therewith. The appeal must be dismissed.
At all times relevant to this appeal, petitioner’s son, J.N., attended third grade in respondent’s district. The record reflects that, sometime in mid-January 2019, two classmates told J.N. that they disliked him and intended to form a “[J.N.] Haters Club.”
On January 18, 2019, petitioner’s adult daughter, who is not a party to this appeal but was a member of respondent board during the relevant timeframe, emailed J.N.’s teacher to report the incident and request that the district investigate. Petitioner’s daughter stated that this was not “the first instance of [J.N.] being mistreated by [the other students].” The teacher responded by email on the same day, indicating that she had “begun to investigate [the incident] further” and would “get back to [petitioner’s daughter] next week.”
On January 22, 2019, the first day of school after petitioner’s daughter reported the incident, respondent Cazes arranged for interviews with the two children who had allegedly made the comment to J.N. and the children’s teacher. In an affidavit submitted with respondents’ answer, respondent Cazes reports that:
The sum and substance of the interviews was that there were simmering conflicts between J.N. and a number of students in his grade over some playground issues. The boys [involved in the incident] admitted that they did not like J.N., based upon these issues, which they perceived as mean. They also admitted to saying that they should start a “[J.N.] Haters Club” but that nothing beyond that discussion occurred.
Based on her investigation, respondent Cazes determined that the incident was a “typical peer conflict” that did not constitute an incident of bullying and harassment under DASA. Respondent Cazes further concluded that the peer conflict was not motivated by J.N.’s “race, national origin or color.”
By email dated January 22, 2019, J.N.’s teacher informed petitioner and petitioner’s daughter that the investigation had been completed and sought to schedule a phone conference to discuss the findings. On January 24, the phone conference took place; petitioner’s daughter, J.N.’s teacher and respondent DeKams participated. According to respondent DeKams’ affidavit submitted with respondents’ answer, respondent DeKams informed petitioner’s daughter during this conference that an aide would be placed in J.N.’s class. Respondent DeKams further indicates that he immediately “assigned rotating monitors” to J.N.’s classroom before securing a full-time aide to be assigned to the classroom as of January 29, 2019.
On January 26, 2019, petitioner’s daughter sent an email to respondents Cazes and DeKams claiming that respondents had failed to adequately address the incident. On January 28, 2019, respondent Cazes responded to the email and informed petitioner’s daughter that the children accused of bullying J.N. had been interviewed and admitted to discussing a “[J.N.] Haters Club” “one time”; however, they “did not act upon that discussion.” Moreover, respondent Cazes explained that she had taken several steps in response to the situation, including: (1) arranging for the school counselor “to conduct a full class lesson ... about resolving conflict in a kind way”; (2) notifying teachers “to ensure a level of vigilance”; and (3) placing an aide in J.N.’s classroom “to assure the safety of all” and “monitor students interactions and intervene as necessary.” Respondent Cazes additionally indicated that she would “provide any student with the opportunity to meet with [the] school counselor either in a group or 1:1 to be able to work on resolving conflict.” Respondent Cazes further informed petitioner’s daughter that any DASA claims would have to be directed to the district’s DASA coordinator and the interim superintendent of schools.
Also on January 28, 2019, petitioner’s daughter sent another email to respondent Cazes, respondent DeKams, and others alleging that the district was “disregard[ing]” the bullying and harassment of J.N. by his classmates as well as by respondents Cazes and DeKams. Respondent Cazes responded to this email the same day, asserting that the district had “set forth protocols to ensure [J.N.’s] safety.”
In a letter to petitioner’s daughter dated February 1, 2019, the interim superintendent confirmed that the matter would “be investigated in accordance with DASA.” The interim superintendent further indicated that, because petitioner’s daughter had alleged wrongdoing by respondents Cazes and DeKams, the investigation would “need to be conducted by a [d]istrict-[w]ide [DASA] [c]oordinator.” The interim superintendent noted that the district did not currently have a district-wide DASA coordinator but that he would recommend that respondent board appoint one at its next meeting. According to the record, respondent board appointed a district-wide DASA coordinator on February 11, 2019.
By email dated February 25, 2019, petitioner’s daughter alleged that the two classmates who were the subject of the initial DASA complaint had also called J.N. vulgar names and told him to “go to hell.” According to respondent Cazes’ affidavit, petitioner’s daughter, the DASA coordinator, and J.N.’s teacher met to discuss this additional allegation on January 28, 2019, with J.N. in attendance; however, “J.N. could not, or was unwilling to, provide specifics ... and stated [that] he thought [the comments] may have been said prior to [the] January incident.”
On March 19, 2019, the DASA coordinator completed her investigation and report. In the report, the DASA coordinator found that “a material incident of harassment, bullying and/or discrimination ... ha[d] not occurred.” With respect to petitioner’s complaints against respondents Cazes and DeKams, the DASA coordinator found that there was “no evidence to suggest harassment or that the administration failed to respond to [J.N.’s] situation in a timely way.” Nevertheless, the DASA coordinator recommended that the aide in J.N.’s classroom continue to work with him for the remainder of the 2018-2019 school year and to communicate with respondent DeKams on a weekly basis. The DASA coordinator also recommended that J.N.’s teacher complete weekly reports concerning J.N.’s progress and that J.N. see a counselor. This appeal ensued.
Petitioner argues that respondents erred in determining that the formation of the “[J.N.] Haters Club” was not a material incident of harassment, bullying and/or discrimination in violation of DASA. Petitioner further argues that the district failed to investigate and resolve other incidents of bullying and harassment. Petitioner also raises procedural objections to respondents’ handling and investigation of the DASA complaint, arguing, among other things, that respondents: (1) violated board policy by failing both to maintain a committee to address bullying and to employ a district-wide DASA coordinator; (2) did not investigate the DASA complaint or file a report in a timely manner; and (3) did not include certain DASA information on the district’s website. Petitioner further asserts that respondents have retaliated against her because she previously complained about a lesson plan implemented in J.N.’s classroom in April 2018. For relief, petitioner seeks determinations that J.N. was subjected to bullying and harassment in violation of DASA; that respondents Cazes and DeKams engaged in bullying and harassment in violation of DASA; and that respondent board is “out-of-compliance with many of DASA’s directives.” Petitioner also requests that the district be directed to address her “still outstanding claims of discrimination [and] retaliation.”
Respondents assert that the appeal must be dismissed because petitioner did not verify the petition. Respondents additionally maintain that petitioner has failed to demonstrate that they acted in a manner that was arbitrary or capricious. Respondents also contend that they did not discriminate against petitioner or J.N. based upon national origin or color or retaliate against petitioner for a prior complaint. Respondents further argue that petitioner’s claims for relief are declaratory in nature or otherwise outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.
First, I must address some procedural issues. Respondents object to the contents 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, 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.
Similarly, with respect to respondents’ memorandum of law, a memorandum of law should consist of arguments of law (8 NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,328; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799). Therefore, to the extent respondents assert new claims in their memorandum of law, I have not considered such arguments.
Given this determination, I also decline to accept petitioner’s August 13, 2019 submission in response to respondents’ memorandum of law. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898). Here, petitioner's August 13, 2019 submission largely responds to the claims raised in respondents’ memorandum of law which I have declined to consider. Petitioner’s submission also seeks to raise new claims and introduce a new exhibit unrelated to the underlying incident. Accordingly, I decline to accept petitioner’s submission as part of the record before me.
The appeal must be dismissed for lack of proper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580). Specifically, section 275.5 requires that “[t]he petition shall be verified by the oath of at least one of the petitioners...” (8 NYCRR §275.5[a]). Here, petitioner did not verify her petition as required by 8 NYCRR §275.5(a). Instead, the petition was verified by petitioner’s daughter, who is not a petitioner.
With her reply, petitioner admits that the verified petition lacks the oath required by the Commissioner’s regulations and submits an affidavit of verification dated June 10, 2019 in which she verifies the contents of the reply. Although petitioner requests that I accept this affidavit as providing the requisite verification of the petition, the regulations governing appeals and other proceedings before the Commissioner do not contemplate such a procedure (Appeal of A.B., 58 Ed Dept Rep, Decision No. 17,527; see generally Appeal of Lovinsky and Simpson, 57 Ed Dept Rep, Decision No. 17,422; Appeal of T.A. and J.A., 54 id., Decision No. 16,781; Appeal of Ransom, et al., 54 id., Decision No. 16,647; Appeal of C.S., 46 id. 260, Decision No. 15,501). Since the petition was not verified by petitioner, as required, the appeal must be dismissed (see e.g. Appeal of Clancy, 50 Ed Dept Rep, Decision No. 16,150).
Even if the appeal were properly verified, it would be dismissed on the merits. A material incident of harassment, bullying or discrimination under DASA is defined as a “single verified incident or a series of related verified incidents where a student is subjected to harassment, bullying, and/or discrimination by a student and/or employee on school property or at a school function” (8 NYCRR §100.2[kk][ix]). Moreover, 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 ....
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).
The parties agree that two of J.N.’s classmates indicated that they disliked J.N. and discussed creating a “[J.N.] Haters Club.” As noted previously, the principal and the DASA coordinator both found that the incident was a “typical peer conflict” rather than an incident that fell under DASA. Upon review of the record, I cannot find that respondents’ determination was arbitrary or capricious. Not all altercations or disagreements between students rise to the level of bullying or harassment under DASA (see Appeal of D.D., 58 Ed Dept Rep, Decision No. 17,516). While petitioner alleges that J.N. was “repeatedly” bullied and “tormented” by the classmates, she has produced no proof of these statements or any evidence of a pattern of bullying or harassment. Respondents indicate, and the record reflects, that they had no notice of complaints concerning J.N. until January 18, 2019, when petitioner’s adult daughter emailed J.N.’s teacher. The record further reveals that the classmates made the statement after J.N. disrupted a game they were playing on the playground, which the classmates perceived of as “mean.” Despite petitioner’s conclusory statements, there is no evidence that the classmates’ comment was directed at J.N. based upon his membership in any protected class.
Even assuming, arguendo, that this incident constituted a material incident of bullying or harassment, the record supports a finding that respondent promptly investigated and issued appropriate remedial action to ensure that such comments did not recur. On the day petitioner’s daughter emailed J.N.’s teacher to report the incident, the teacher informed the principal and responded to the daughter to confirm that the incident would be investigated. On the next school day, the teacher informed petitioner that the district had completed its investigation and that she wished to discuss the findings. Two days later, petitioner’s daughter, respondent DeKams and J.N.’s teacher held a phone conference to discuss the investigation. Two days after that, respondent Cazes emailed petitioner’s daughter to explain both the district’s findings and the remedial actions the district planned to take.
Although respondents did not find that J.N.’s classmates engaged in bullying or harassment under DASA, I nevertheless note that the district took prompt action to create a more positive school culture and climate, prevent recurrence of the classmates’ behavior, and ensure the safety of J.N. In an affidavit, respondent Cazes indicates that after J.N.’s teacher informed her of the January 18, 2019 email, “an investigation was immediately undertaken.” Respondent Cazes further indicates that respondents arranged for interviews with the classmates on January 22, 2019, as well as a teacher of the classmates. Moreover, in response to the incident, the school counselor conducted a lesson about conflict resolution and teachers were advised to ensure a “level of vigilance.” J.N. was also offered the opportunity “to meet with [a] school counselor either in a group or 1:1 to be able to work on resolving conflict.” Finally, an aide was placed in J.N.’s classroom as of January 29, 2019 – six school days after the incident was first reported to J.N.’s teacher - to monitor J.N.’s interactions. Thus, the record supports a finding that respondents promptly investigated the incident, reported the results of the investigations to petitioner and took prompt action to address the incident and provide support to J.N.
Beyond her claim that respondents erred in determining that J.N. was not subjected to bullying or harassment, petitioner raises several procedural objections to the manner in which respondent investigated her DASA complaint. However, petitioner does not seek any relief stemming from such violations, other than requesting a declaration that respondents are “out-of-compliance with many of DASA’s directives.” 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). Because petitioner does not seek any relief with respect to these allegations, I decline to issue an advisory opinion concerning respondents’ compliance with their procedural obligations under DASA.
While respondents acknowledge that respondent board did not comply with board policy for a time when it failed to maintain a district-wide DASA coordinator, this claim must be dismissed 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). As indicated above, the record reveals that, on February 11, 2019, respondent board appointed a district-wide DASA coordinator who “underwent training prior to investigating the complaints made by [p]etitioner ....” The DASA coordinator proceeded to investigate petitioner’s DASA claim and issued a decision resolving her complaint. Therefore, petitioner’s complaint concerning respondent board’s failure to designate a district-wide DASA coordinator is moot.
Finally, to the extent petitioner seeks to adjudicate a claim of unlawful discrimination and retaliation, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims of unlawful discrimination (see e.g. Appeal of Nicholaou-Guirguis, 32 Ed Dept Rep 439, Decision No. 12,879 [appeal to Commissioner under Education Law §310 not proper forum for alleged violation of Title VII of the Civil Rights Act of 1964]). As a result, these claims must be dismissed as beyond the scope of an appeal pursuant to Education Law §310. Moreover, petitioner admits in the petition that she has filed a complaint with the United States Department of Education’s Office for Civil Rights concerning her allegations of discrimination and retaliation stemming from the process and outcome of the January 18, 2020 email to J.N.’s teacher. Therefore, even assuming that I had jurisdiction over such claims, petitioner’s filing of a similar complaint would constitute an election of remedies that would preclude her from raising such claims in this appeal (Appeal of Campbell, 57 Ed Dept Rep, Decision No. 17,266; Appeal of T.G. and R.G., 46 id. 95, Decision No. 15,451).
In light of this disposition, I need not address the parties’ remaining contentions. 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
 The record reflects that petitioner was invited to participate in the conference but did not do so.
 Respondent Cazes’ email mistakenly identified the district’s Title IX coordinator as the district-wide DASA coordinator. In her affidavit, respondent Cazes indicates that the district “did not have a [d]istrict-wide DASA [c]oordinator at that time.”
 Petitioner indicates that she has filed a civil rights complaint with the United States Department of Education’s Office for Civil Rights concerning this issue.
 According to the record, Board Policy 115 requires that the board of education “appoint a [DASA coordinator] for each school in the district and one to act district-wide.” As indicated above, respondent board did not have a “district-wide” DASA coordinator for a period of time.