Decision No. 18,088
Appeal of JOHN and JANE DOE, on behalf of their child, from action of the Board of Education of the Boquet Valley Central School District at Elizabethtown-Lewis-Westport regarding the Dignity for All Students Act.
Decision No. 18,088
(February 15, 2022)
Flink Maswick Law, PLLC, attorneys for petitioner, Katherine A. Giovacco, Esq., of counsel
Stafford, Owens, Piller, Murnane, Kelleher & Trombley, PLLC, attorneys for respondent, Meghan E. Zedick, Esq., of counsel
ROSA., Commissioner.--Petitioners appeal from action of the Board of Education of the Boquet Valley Central School District (“respondent”) regarding a Dignity for All Students Act (“DASA”) complaint. The appeal must be dismissed.
Petitioner’s child (“the student”) attended eighth grade in respondent’s district during the events described herein.
According to respondent, on March 25, 2021, the student spoke with two friends about self-harm during the school day. A classmate (“student B”) overheard this discussion. The parties disagree as to what student B said in response. Respondent asserts that she said: “[i]f you are suicidal, you should get help. If not, it is attention-seeking.” Petitioners allege that student B said: “you should get help with that[;] you are such an attention seeker.”
Petitioners filed a DASA complaint that same day. In addition to the above comment, petitioners also alleged that student B “ha[d] bullied [the student] since 5th grade.”
The school counselor also met with the student on March 25, 2021. According to the school counselor, the student “came to [her] office visibly upset” and indicated that she had been feeling more depressed lately and was experiencing suicidal ideations. The record reflects that the student had received counseling services from school and private counselors prior to the events described herein. While the student “mentioned that she overheard [student B] make a comment about her seeking attention,” she “did not focus” on that topic and instead explained “that she had been having an ongoing conflict with a [different] friend and classmate [“student C”] ... over the past couple of months which [was] upset[ting] her.” The school counselor contacted petitioners and “recommended that she be immediately seen for an assessment.” One of the petitioners picked the student up and brought her to a hospital.
Prior to the student’s return to school, the school counselor met with the student to develop a safety plan. The student “identified triggers and warning signs.” She and the counselor also “discussed coping strategies and identified supports ....” The counselor further indicated that, if the student felt unsafe, she could receive a pass to visit the counselor.
On April 13, 2021, the counselor met with the student, petitioners, and the interim principal to discuss the safety plan. The parties discussed that the student and student B would be “separated from one another ... to the greatest extent possible ....” According to the counselor, “[a]t no time during the April 13, 2021 meeting did [petitioners] indicate that the safety plan was inadequate.”
On April 20, 2021, the student met with the counselor and shared two concerns. First, she had an encounter with student C “which upset her.” Second, the student indicated that “she thought she overheard [student B] say something in class like “I don’t know what difference changing my classes is going to make ....” The school counselor and principal spoke with the student later that day, who clarified “that she assumed that [student B] was talking about her, but ... was unsure what she heard.” The interim principal additionally spoke with student B, who denied making the comment that the student attributed to her.
On April 29, 2021, respondent’s DASA committee issued a written report based on its investigation of petitioners’ DASA complaint. The report indicated that the committee reviewed school records and interviewed 17 teachers and staff members concerning “any incidents from the [student’s] fifth grade year to present.” The committee also interviewed the student, student B, two other student witnesses, and the parents of both students. These interviews did not reveal any “history of behavioral difficulties between the two students.” Indeed, the report noted that “[t]wo teachers stated that the [student] wanted to work with, sit near, or go to the bathroom with [student B].”
With specific respect to the March 25, 2021 incident, the report stated that student B and the two other students interviewed “were pretty consistent” in reporting that the student and her friends had been talking openly in class, “giggling and laughing” about a suicide plan. Within this context, student B responded, “[t]his isn’t funny you guys need to get help or talk to someone, it seems attention seeking when its (sic) out of nowhere that you are saying you are going to kill yourself.” The DASA committee concluded that while this comment was “unkind” and made “without regard to [the student’s] feelings,” it did not constitute bullying or harassment within the meaning of DASA. Going forward, the report noted that the parents of both students agreed that “the students would benefit from more separation”; that the school counselor and the student had developed a safety plan which had been reviewed and approved by petitioners; and that the student would receive additional support.
On April 29, 2021, petitioners requested that respondent review the investigation. By letter dated May 13, 2021, respondent’s district clerk informed petitioners that “[u]nder the direction of the Superintendent, the DASA Team and the DASA Coordinator followed all necessary policies and procedures as part of the reported DASA incident and investigation.”
By email dated May 24, 2021, petitioners requested that respondent conduct an “impartial investigation” or “impartial trial” concerning their DASA complaint. By letter dated June 2, 2021, respondent informed petitioners that their requests for an “impartial hearing” and “impartial trial” were denied. Respondent asserted it “conducted a thorough investigation” of the complaint, and, further, that there was no legal requirement that school districts offer a local appeal process for DASA complaints. This appeal ensued.
Petitioners contend that respondent failed to complete a timely and thorough investigation of their DASA complaint. Petitioners also argue that respondent failed to develop a plan that would ensure the student’s safety and well-being at school. Petitioners request that respondent “direct the District to implement an appropriate safety plan” for the student, conduct district-wide DASA training, and review its DASA policies.
Respondent argues that the appeal should be dismissed as untimely and, to the extent petitioners seek additional investigation and review, for lack of jurisdiction. Respondent maintains that it conducted a comprehensive DASA investigation and took prompt and appropriate action to support the student and ensure her safety.
First, I must address the procedural issues. Respondent objects to the contents of petitioners’ reply and memorandum of law. 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 belatedly add assertions that should have been raised 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). Further, a memorandum of law should consist of arguments of law (8 NYCRR 276.4). It may not be used to add belated assertions not included in 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, while I have reviewed the reply and memorandum of law, 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.
Respondent further contends that the petition must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or 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). Petitioners commenced this appeal by serving the petition on respondent’s district clerk on June 30, 2021. Respondent argues that the only claims that can be considered on appeal are those pertaining to respondent’s June 2, 2021 letter; namely, petitioners’ requests for a new investigation and an “impartial trial.” Petitioners argue that they reasonably assumed the existence of a local appeal process given the DASA report’s statement that “[e]ither the complainant, or the accused, may appeal the findings of this DASA investigation” in writing to respondent’s district clerk.
I decline to dismiss the appeal as untimely. Although respondent contends that the DASA report “erroneously references” a right to appeal that does not exist in respondent’s DASA policy, the letter unambiguously suggested that petitioners had such a right. I decline to fault petitioners for their reliance on this language (see generally Appeal of C.C.-B., 58 Ed Dept Rep, Decision No. 17,592 [board may “adopt rules governing appeals of district decisions and may impose timelines in connection therewith”] and Appeal of H.P., 60, Ed Dept Rep, Decision No. 17,957 [conditions for appealing an adverse district decision must be reasonable and clearly communicated to parents]).
Turning to the merits, DASA prohibits harassment and bullying in public schools. It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 ; 8 NYCRR 100.2 [kk]  [ix]). Such a hostile environment may be created where bullying or harassment:
(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 ....
A district’s DASA determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864).
In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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 have not met their burden of demonstrating that respondent’s DASA determination was arbitrary or capricious. As described above, school officials immediately responded to petitioners’ DASA complaint and investigated. In the course of its investigation, respondent interviewed over a dozen witnesses, including the student, student B, petitioners, teachers, and staff members. These interviews did not yield any evidence of bullying, harassment, or discrimination. Moreover, the interviews with student B and other student witnesses did not support the student’s account of the March 25 exchange. Notwithstanding these conclusions, respondent voluntarily developed a safety plan for the student, encouraged separation of the student from student B, and encouraged the student to continue to visit her school counselor for support.
Petitioners argue in response that respondent “failed to consider key facts and witnesses.” They further contend that evidence submitted with their appeal demonstrates that the student was the “subject of a series of verified bullying incidents by the same group of classmates over a fairly short period of time.” Petitioners submit copies of correspondence with district employees and officials, medical records, and a copy of a psycho-educational evaluation of the student. There is nothing in the record to indicate that petitioners provided these documents to respondent during the investigation; respondent asserts that petitioners did not provide them with names of any of the student’s treatment providers, a signed release allowing any treatment provider to speak with them, or notification that any physician or treatment provider witnessed any alleged act of bullying. As such, respondent cannot be faulted for failing to consider these documents (Appeal of J.L. and S.M., 60 Ed Dept Rep, Decision No. 17,930; Appeal of a Student with a Disability, 60 id., Decision No. 17,905). In any event, these documents do not include any information suggesting that respondent failed to properly investigate any incidents of harassment, bullying, or discrimination (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17859).
Petitioners also argue that respondent’s investigation was incomplete because the DASA committee did not interview the school nurse. Respondent admits as much, asserting that it had no reason to suspect that the nurse had knowledge of any “specific incident” involving the student. Respondent further notes that the nurse was “no longer employed by the District” at the time of its investigation.
With their reply, petitioners provide an affidavit from the school nurse, who is now retired. In it, the nurse states that “[w]hen [the student] was in fifth grade, she had repeated conflicts with a female classmate, [student B]” and, further, that “[o]n more than one occasion, [the student] came to the nurse’s office seeking respite, or a safe place to be, because of her conflicts with [student B].” The nurse also states that she believed “at times [the student] was sent to the nurse’s office by her 5th grade teacher ... to separate her from [student B].”
While these assertions suggest that the student and student B experienced conflicts in fifth grade, they do not prove that such interactions constituted bullying, harassment or discrimination (Appeal of J.L. and S.M., 60 Ed Dept Rep, Decision No. 17,930). Moreover, there is no evidence that the DASA committee had reason to suspect that the nurse possessed relevant knowledge until May 11, 2021, when petitioners made such an assertion to the board’s vice president. Thus, although respondent is now aware of these allegations—and should investigate further as necessary—there is no evidence that it had or should have had such knowledge in April 2021.
While petitioners have not demonstrated a clear legal right to the relief requested, if petitioners or the student are dissatisfied with the current safety plan, I encourage the parties to work collaboratively and develop a safety plan that promotes the best interests of the student. I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 I additionally decline to dismiss petitioners’ claim regarding the safety plan as untimely because the sufficiency of the safety plan is intertwined with petitioners’ appeal of the DASA report.
 The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11  [d]).
 To the extent petitioners complain of an inappropriate text message sent to the student in late May and early June 2021, the superintendent investigated and concluded that student B “had no involvement in sending the text message ....” Indeed, two other students admitted that they sent the message and denied that “any other students were involved in the matter.”
 Although petitioners argue that respondent did not interview the fifth grade teacher, the evidence on this point is equivocal. The interim principal avers that she “contacted [the student’s] fifth grade teacher,” while petitioners submit an email from the teacher in which she indicates that she was not “interviewed.”
 The fact that the nurse was no longer a school employee, however, has no bearing on respondent’s ability to contact her.