Decision No. 17,859
Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the Hilton Central School District regarding bullying
Decision No. 17,859
(June 26, 2020)
Harris Beach PLLC, attorneys for respondent, Laura M. Purcell, Esq., of counsel
Tahoe., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Hilton Central School District (“respondent”) regarding alleged bullying and harassment of her son (“the student”) in violation of the Dignity for All Students Act (“DASA,” Education Law, Article 2). The appeal must be dismissed.
During the 2018-2019 school year, the student attended respondent’s middle school and received special education services pursuant to the federal Individuals with Disabilities Education Act (“IDEA”) and Article 89 of the Education Law. Petitioner alleges that, on September 11, 2018, the student’s social studies teacher made inappropriate comments about Muslims in connection with a lesson on the September 11, 2001 terrorist attacks. Throughout September and October 2018, petitioner raised several additional concerns regarding the student’s experiences at school, which are further described below.
On October 15, 2018, respondent’s superintendent arranged for the Monroe 2-Orleans Board of Cooperative Educational Services (“BOCES”) to investigate petitioner’s allegations “due to the number and substance of the concerns [petitioner] had raised.” A BOCES attorney (“investigator”) conducted 11 witness interviews over the next several weeks. The investigator submitted a written report to the superintendent on November 20, 2018, concluding that no district employee or administrator had engaged in bullying, harassment, or discrimination of the student.
On January 16, 2019, petitioner met with the district’s assistant superintendent for human resources (“assistant superintendent”) to review the investigator’s findings. The assistant superintendent provided petitioner with a written summary of the investigator’s report, which summarized the complaints petitioner had raised and the investigator’s findings with respect thereto. A summary of these allegations and findings is reproduced below:
- The student alleged that his school-issued laptop was not working. The investigator concluded that the “issue was fixed immediately and had nothing to do with [the student’s] race, color, religion, or other legally protected class.”
- Petitioner requested that the student be exempted from music class and enrolled in art class instead. The investigator concluded that a “religious exemption” would be required to effectuate this request. The investigator noted that the student was in fact “exempted from his [m]usic class” upon his receipt of a religious exemption.
- The student was forced to share a tool with another student in technology class. The investigator concluded that “students had to share because there were not enough tools to go around” and that such requirement was not imposed “because of [the student’s] status in any legally protected class.”
- The student alleged that, on September 11, 2018, his social studies teacher “insinuated or stated ... that all Muslims are bad and that Muslims conducted the 9/11 attacks.” The investigator concluded that the teacher did not make any insinuations or statements to that effect. Instead, the investigator found that a student had asked about the identity of the 9/11 terrorists during class and the teacher “responded with factual information by stating [that] the attacks were conducted by Al Qaeda, a fundamentalist Islamic terrorist group.”
- The student alleged that, after the 9/11 discussion, the social studies teacher asked the student “are you going to hit me?” while handing out textbooks. The investigator found that the teacher did not make this statement and that he distributed textbooks on September 7, 2018, prior to the class discussion concerning 9/11.
- Petitioner complained that the student “should not have been performing grade level math” and that “people were purposefully challenging [the student’s] learning abilities in an effort to make him snap.” The investigator found that the district was appropriately implementing the student’s individualized education plan (“IEP”) and that the student “was supposed to have been performing grade-level [m]ath.” The investigator further found that the student had “access to [m]ath help” outside of the classroom during resource time and/or after school.
- Petitioner claimed that the student was improperly disciplined for skipping class when he mistakenly went to the wrong technology class. The investigator concluded that the student, as captured by video surveillance footage, deliberately skipped class to attend two lunch periods.
On January 18, 2019, petitioner submitted four letters to the district reiterating her previous allegations regarding the student’s math and social studies classes, as discussed above, and further alleging that: (1) district employees were unaware of, or were not appropriately implementing, the student’s IEP; (2) the district improperly handled an incident on October 31, 2018 where the student acquired a fake $100 bill and used it to purchase food during a school fundraiser; and (3) she was improperly “banned from entering the school” on January 14, 2019 by the middle school principal (“principal”). Petitioner additionally requested that “all administrative contact with [the student] be documented and [that she] be contacted due to negligence by administration.”
In late January 2019, the superintendent requested that BOCES conduct a second investigation. An attorney with BOCES (“second investigator”) conducted eight witness interviews, including interviews of the student and petitioner; reviewed the first investigator’s report and findings; and submitted a written report to the superintendent. On April 2, 2019, the assistant superintendent met with petitioner to review the second investigator’s findings.
In a letter dated April 4, 2019 and addressed to the assistant superintendent, petitioner indicated that she disagreed with the outcome of the second investigation and requested to be provided with the full investigative report as well as footage from the school’s security cameras for certain dates between November 2018 and March 2019. Petitioner raised four complaints concerning the investigation: (1) respondent improperly “discredited” the student’s version of the complained-of events; (2) she received “no closure” regarding the alleged incidents with the student’s social studies teacher; (3) the student’s “needs were not met concerning his IEP” because “there [had] been no effort to look at [the student’s] psychological testing”; and (4) the second investigator improperly concluded that “there was no evidence that [petitioner] was illegal[ly] banned from the school.”
The superintendent accepted petitioner’s April 4, 2019 letter as an appeal of the second investigator’s findings and issued a written determination on April 29, 2019, in which he indicated that he “agree[d] with the findings.” The superintendent determined that the second “investigator conducted a comprehensive and thorough investigation and that his findings were supported by the evidence.” The superintendent found, inter alia, that district employees acted in accordance with district policy at all relevant times and that petitioner had not been “banned” from school property. The superintendent further indicated that, although there was no evidence of bullying, harassment or unlawful discrimination, the district would nevertheless adopt the following recommendations of the second investigator: (1) assignment of an administrator, other than the principal, to handle “day-to-day and non-special education related concerns” raised by petitioner and the student; (2) assignment of a point person to handle all special education related matters; (3) reporting of all “disciplinary or potential disciplinary actions to [petitioner] within a reasonable amount of time”; (4) continued check-ins with, and informal monitoring of, the student “to ensure that he feels supported”; (5) continued provision of petitioner with reasonable access to the school in accordance with security protocols; and (6) a meeting with petitioner and the second investigator to discuss petitioner’s “various questions.”
By letter dated May 14, 2019, petitioner appealed the superintendent’s decision to respondent. On August 13, 2019, after granting petitioner two extensions to submit additional information, respondent denied petitioner’s appeal and upheld the superintendent’s determination. Respondent’s president informed petitioner of this determination by letter dated August 14, 2019. This appeal ensued.
Petitioner implicitly argues that respondent erroneously determined that the student was not subjected to bullying, harassment or discrimination. For relief, petitioner requests an investigation into the principal and “her integrity to protect the students,” as well as “a new investigation to review [d]istrict coverups of racism and discrimination [among] [d]istrict faculty members.” Petitioner further seeks an “acknowledgment of [the student’s] [m]ath disability to proper[ly] support his education[al] needs.” Finally, petitioner requests a determination that the student “is entitled to attend school ... without exclusion, improper reporting, [or a] lack of protection by staff” and that “new implementations and services be issued.”
Respondent argues that the appeal must be dismissed insofar as petitioner seeks additional investigations, as an appeal to the Commissioner is not an appropriate venue to request such investigations. Respondent also argues that petitioner’s claims concerning the student’s IEP must be dismissed for lack of jurisdiction. Respondent further contends that petitioner’s remaining requests for relief must be dismissed for failure to set forth a clear and concise statement of a claim. Finally, respondent maintains that, to the extent the petition can be interpreted to challenge respondent’s DASA determination, its decision was neither arbitrary nor capricious.
First, I must address several preliminary matters. Petitioner’s claims arising under the IDEA and Article 89 of the Education Law must be dismissed for lack of jurisdiction. Petitioner alleges that district employees failed to implement the student’s IEP with respect to the student’s math class and requests an acknowledgment that the student has a “[m]ath disability” that requires certain support. Claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA (20 USC §1415) and Article 89 of the Education Law; such claims may not be addressed in an appeal brought pursuant to Education Law §310 (Appeal of a Student with a Disability, 55 Ed Dept Rep, Decision No. 16,911; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).
Additionally, to the extent that petitioner seeks additional investigations concerning the incidents described herein and the district’s response thereto, 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). Therefore, I lack jurisdiction to order any additional investigations.
Petitioner’s remaining claims 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 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).
As described above, respondent conducted two investigations concerning petitioner’s allegations of bullying, harassment, and discrimination, during which two investigators interviewed a total of 18 witnesses (including the student and petitioner) and reviewed evidence including emails, letters, and video surveillance footage. The investigators issued written findings concerning each of petitioner’s allegations. Additionally, although the district did not find that any bullying, harassment or discrimination had occurred, it nevertheless adopted recommendations made by the second investigator to support the student and facilitate greater communication between petitioner and the district.
On appeal, petitioner offers no evidence, other than her conclusory statements, to contradict the results of the two investigations. Although petitioner may disagree with respondent’s determination, petitioner bears the burden of proof in this proceeding, and her unsubstantiated allegations of bullying, harassment, and discrimination do not establish that respondent’s determination was arbitrary or capricious. Although petitioner submits a copy of the student’s IEP, evaluation reports, and other related documents, respondent does not dispute the student’s eligibility for special education, and these documents do not include any information suggesting that respondent failed to properly investigate any incidents of harassment, bullying or discrimination. Accordingly, to the extent petitioner seeks to overturn respondent’s determination that no harassment, bullying, or discrimination of the student occurred, the appeal must be dismissed (Appeal of L.D., 56 Ed Dept Rep, Decision No. 16,864).
Petitioner’s remaining requests for relief must be dismissed for failure to state a claim upon which relief may be granted. Aside from the relief addressed above, petitioner seeks:
discrimination, racism, and ... [e]ducational supports to attend [respondent’s] district ... and ... [a] determination that [the student is] a resident of the ... [d]istrict and is entitled to attend school without exclusion, improper reporting, lack of protection by staff and new implementations and services be issued [sic].
Although not entirely clear, to the extent this request can be deemed to allege that respondent engaged in unlawful discrimination or that its determination was arbitrary or capricious, any such claims must be dismissed for the reasons set forth above.
Finally, I note that, although the appeal must be dismissed for the reasons set forth above, 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
 Given this conclusion, I need not address respondent’s contention that these claims should be dismissed for failure to join necessary parties, insofar as petitioner seeks “investigations [concerning] unidentified faculty members and ... the [p]rincipal.”