Appeal of J.L. and S.M., on behalf of their son C.M., from action of the Board of Education of the Highland Falls Central School District and Frank Sheboy as Superintendent regarding student discipline and bullying.

Decision No. 17,930

(October 14, 2020)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

ROSA., Interim Commissioner.--Petitioners appeal from action of the Board of Education of the Highland Falls Central School District (“respondent board”) and Frank Sheboy as Superintendent (“respondent superintendent”) (collectively, “respondents”) to impose discipline upon their son, C.M. (“the student”).  Petitioners further assert that the student was subjected to bullying and harassment in violation of 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 attended school in respondent board’s district.  By letter dated January 17, 2019, the principal of respondent board’s intermediate school (“the principal”) advised petitioners that he was proposing to suspend the student for five days based upon events that occurred on January 16, 2019.  The principal alleged that, on January 16, 2019, the student defecated into another student’s book bag.[1]

On January 18, 2019, the principal held an informal conference with petitioners to discuss the proposed suspension.

By letter dated January 18, 2019, the principal indicated that the student would be suspended for four days, from January 22 through January 25, 2019.  The letter indicated that the student’s conduct on January 16, 2019 violated the district’s code of conduct insofar as it constituted disorderly conduct; a physical condition that endangered the health, safety, welfare and morals of other students; and lewd behavior, including obscene, vulgar, or indecent conduct.

In an email dated January 24, 2019, petitioners requested that the disorderly conduct and lewd behavior violations be removed from the student’s record because the January 16, 2019 incident was “an accident ... not a lewd act.”  The principal responded on January 29, 2019, informing petitioners that, “[i]n order for [the district] to consider removing/changing the charges,” petitioners would need to submit “medical documentation from [the student’s] doctor.”

By email dated February 13, 2019, respondent superintendent informed petitioners that he had asked the principal to “send [petitioners] a revised suspension letter that would reflect a lack of intent and ... eliminate[] [any] reference to lewd behavior.”  Respondent superintendent indicated that this decision was based on his conversation with the school physician, who had advised him that petitioners intended to follow up with a gastrointestinal specialist and counselor.

On March 7, 2019, the principal sent petitioners a revised notice of suspension indicating that the student had been suspended for “[d]amaging ... the property of the school or of another person.”

On May 31, 2019, petitioners sent the principal an email and attached letter “regarding [their] request for revaluation of [the student’s] suspension in January in light of new information of teacher bullying that [they] received on April 25th.”[2]  Specifically, petitioners alleged that the student and his classmates “ha[d] been subjected to continuous verbal abuse, public shaming and a hostile/harassing environment” by a classroom teacher during the 2018-2019 school year.  According to petitioners, students in the class were, inter alia, called names and treated with disrespect.  Petitioners also asserted that the teacher primarily targeted male students and that the bullying and harassment had become progressively worse over the course of several months.  Petitioners posited that the incident on January 16, 2019 occurred shortly before the student was to attend this teacher’s class, which was “the catalyst for [his] extreme stress.”  Petitioners characterized their letter as an “official complaint” and requested a review of the student’s school record based on their assertions.  Respondents construed this letter as a written allegation of bullying and harassment under DASA and initiated an investigation.

On September 17, 2019, the principal issued a “Summary of Findings” in response to petitioners’ May 31, 2019 complaint.  According to the principal, 13 witnesses were interviewed between April 30, 2019 and June 17, 2019, including the student.  Based on the investigation, the principal determined that the teacher had made “several inappropriate comments” to students during the school year but that “these comments were not directed at [the student].”  In particular, the principal noted that the student “didn’t name himself” when identifying students whom the teacher had “directed negative comments towards.”  The principal further found that the teacher’s conduct did not rise to the level of “creating a hostile environment” and that there was “insufficient evidence to form a nexus” between the teacher’s conduct and the incident that occurred on January 16, 2019.  As a result, the principal concluded that there was no basis “to expunge the student’s educational record relating to the January 2019 incident.”

The principal also concluded that the teacher had not subjected the student to gender-based discrimination.[3]  Specifically, the principal found that, although the teacher “did in fact have a line drawn across the floor” in her classroom, as petitioners alleged, there was “no evidence” that this act was based upon, or motivated by, gender or any other protected characteristic.  The principal further noted that “[n]one of the students interviewed made reference to the line making them feel uncomfortable or otherwise depriving them [of] equal access to education.”  Ultimately, the principal recommended that, in response to petitioners’ complaint, students and parents be offered “a confidential setting and means to share any on-going concerns” of bullying, harassment, or retaliation; that school-based counseling be made available to the student; and that the “conduct that gave rise to this investigation be promptly addressed via appropriate remedial action.”

On September 18, 2019, petitioners appealed the principal’s determination to respondent superintendent, arguing that the principal’s findings were “factually incorrect.”  In a letter dated October 15, 2019, respondent superintendent upheld the principal’s determination and denied petitioners’ appeal.  Respondent superintendent concluded that “the investigation was fair and thorough,” that “the credible evidence support[ed] the [principal’s] findings,” and that the teacher’s behavior, “while in need of remediation,” was not severe or pervasive enough to create a hostile environment.  This appeal ensued.

Petitioners contend that the principal improperly suspended the student for the January 2019 incident because the incident was the result of the student’s medical condition.  Petitioners also allege that the school inappropriately questioned the student and restricted his movement while investigating the incident.  Petitioners additionally argue that respondents’ DASA determination had no rational basis and was unreasonable.  Specifically, petitioners contend that the student was “directly targeted” and bullied by his teacher and that the teacher treated male students differently than female students.  Finally, petitioners contend that respondents acted unreasonably in “deciding and assuming, without basis, and contrary to medical diagnosis and documentation, ... that there [was] no nexus between the classroom environment and emotional harm to [the student].”  For relief, petitioners request that the student’s record “be expunged of the January 16, 2019 incident” and that the student’s “school be compelled to provide [the student] protection from bullying and retaliation.”

Respondents argue that petitioners’ claims with respect to the short-term suspension must be dismissed as untimely.  Respondents further assert that the student admitted that he engaged in the charged conduct and that expungement of the student’s suspension is not warranted.  Respondents further contend that they investigated petitioners’ DASA claims and reasonably concluded that the student was not subjected to bullying or harassment.

I must first address a procedural issue.  Petitioners submitted a reply in this matter.[4]  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.

With respect to petitioners’ claims regarding the student’s short-term suspension, 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).

The principal imposed a short-term suspension on the student on January 18, 2019.  Thereafter, the principal issued a revised suspension letter dated March 7, 2019, which modified the portions of the district’s code of conduct that the student was found to have violated.  There is no evidence that petitioners appealed either the original or the revised determination to respondent superintendent or respondent board prior to this appeal.[5]  Thus, even assuming that the 30-day time limitation ran from the revised March 7, 2019 determination – the calculation most favorable to petitioners – petitioners commenced this appeal over eight months thereafter.  Petitioners do not set forth good cause, or any cause, for the delay in the petition (see 8 NYCRR §275.16).  While petitioners generally assert in their reply that they acted in “good faith,” this assertion does not constitute good cause for failing to initiate an appeal in a timely manner.  As a result, petitioners’ claims related to the student’s short-term suspension must be dismissed as untimely.[6]

Petitioners’ challenge to respondents’ DASA determination is timely but 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).

Petitioners maintain that respondents unreasonably determined that the student’s teacher did not directly bully him or discriminate against him on the basis of his gender.  While petitioners disagree with respondents’ conclusion, they submit no evidence, other than their own conclusory statements, that the teacher bullied or harassed the student or subjected him to gender discrimination.  Although the principal determined that the teacher made several inappropriate comments to students and had “a line drawn across the floor,” the investigation revealed no evidence that this conduct was directed at the student.  Indeed, the principal expressly noted that, “[o]f the 13 ... witnesses interviewed, [the student] was not named or mentioned as being singled out by the conduct of the teacher” and that, during his own interview, the student identified other students who had been targeted by the teacher but did not identify himself as the recipient of any inappropriate comments.[7]  The principal also noted that none of the students who were interviewed “made reference to the line [in the teacher’s classroom] making them feel uncomfortable or otherwise depriving them [of] equal access to education.”  Because petitioners have not submitted any evidence to contradict the results of respondents’ investigation, which spanned several weeks and entailed numerous interviews of staff and students, I find that petitioners have not carried their burden of proof with respect to these allegations (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of Students with Disabilities, 59 id., Decision No. 17,805).

I acknowledge that, on appeal, petitioners submit notes from the student’s January 22, 2019 medical appointment, in which the student’s physician wrote that the student “fe[lt] that his teacher picks on him at times unfairly.”[8]  This evidence, however, was not provided to respondents during their investigation and is therefore not properly part of the record on appeal (Appeal of a Student with a Disability, 60 Ed Dept Rep, Decision No. 17,905).  Moreover, these notes predate the student’s interview with the principal, during which the student denied that the teacher had directed inappropriate conduct toward him, as discussed above.  Accordingly, I do not find that this single piece of evidence, submitted for the first time on appeal, is sufficient to carry petitioners’ burden of proof.

In any event, petitioners do not seek any specific relief concerning the teacher’s conduct.  Instead, the only relief that petitioners seek is expungement of the short-term suspension and a request for prospective relief, addressed below.  The record reflects that the principal took appropriate action in response to the teacher’s inappropriate conduct by admonishing the teacher and offering appropriate recommendations and support for students and parents.  Thus, even assuming, arguendo, that the teacher subjected the student to bullying, harassment, or discrimination based on sex, I find that respondent adequately investigated and addressed the teacher’s classroom behavior.

Finally, petitioners request that the student receive “protection at school from bullying and retaliation.”  Because this request presupposes that bullying, harassment or retaliation will occur in the future, it is premature and inherently speculative (see Appeal of Ahmad, 58 Ed Dept Rep, Decision No. 17,542; Appeal of D.C., 57 id., Decision No. 17,245).  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Healey and Lindberg, 57 Ed Dept Rep, Decision No. 17,194; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861; Appeal of Lachler, 47 id. 455, Decision No. 15,752).  Therefore, this request for relief must be denied.[9]

In light of the above disposition, I need not address the parties’ remaining contentions.  However, nothing herein should be construed as minimizing the serious safety, social and emotional issues raised by harassment, bullying and discrimination in public schools.

THE APPEAL IS DISMISSED.

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