Decision No. 18,124
Appeal of A.M., on behalf of her child, from action of the Board of Education of the City School District of the City of Kingston regarding the investigation of allegations of child abuse in an educational setting and bullying or harassment.
Decision No. 18,124
(May 23, 2022)
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the superintendent of the Board of Education of the City School District of the City of Kingston (“respondent”) that her child (the “student”) was not subjected to child abuse in an educational setting or bullying or harassment in violation of the Dignity for All Students Act (“DASA”). The appeal must be dismissed.
The student attends respondent’s middle school. The middle school has a policy that students cannot use a cell phone in the school hallways. Petitioner alleges that, on October 18, 2021, the middle school principal “aggressively approached [the student]” and grabbed [him] by his right wrist, ….” She further alleges that the principal “twisted” the student’s wrist during the course of “snatching [the student’s] cell phone from his hand.” Thereafter, petitioner filed a complaint alleging an unlawful use of corporal punishment. Respondent conducted an investigation into the allegations.
In a letter dated November 16, 2021, respondent’s superintendent determined that “there was a lack of evidence … that the student was touched on his person at all during the confrontation over … [the] cell phone.” As such, respondent concluded that the student was not subjected to corporal punishment, bullying/harassment, or child abuse in an educational setting. This appeal ensued.
Petitioner challenges respondent’s determination, alleging that the principal engaged in corporal punishment when he “grabbed” and “twisted” the student’s wrist. For relief, petitioner requests that respondent conduct a new investigation of her complaint.
Respondent contends that petitioner has failed to demonstrate a clear legal right to the relief requested.
Corporal punishment, defined as “any act of physical force upon a pupil for the purpose of punishing that pupil,” is prohibited in an educational setting (8 NYCRR 100.2 [l] ). Additionally, Education Law § 1125 (1) prohibits the following acts committed in an educational setting by an employee or volunteer against a child:
(a) intentionally or recklessly inflicting physical injury, serious physical injury or death, or
(b) intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death ….
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).
Petitioner has not established the factual premise underlying her claims; namely, that the principal grabbed the student’s wrist while taking possession of his cell phone. As evidence, petitioner submits her complaint and follow-up correspondence to the superintendent, the superintendent’s determination, a police incident report made by petitioner on November 19, 2021, a letter to respondent requesting a second investigation, and an email regarding the student’s achievements in math. This does not demonstrate that the principal had any physical contact with the student. In this respect, I note that petitioner did not witness the interaction of which she complains and has not submitted an affidavit or statement from the student (see Appeal of G.J.-F., 58 Ed Dept Rep, Decision No. 17,608). As such, she has not proven that the principal engaged in bullying/harassment, corporal punishment, or child abuse in an educational setting.
In any event, the evidence in the record supports the superintendent’s determination. Two administrators—respondent’s coordinator of personnel, benefits and payroll and the deputy superintendent of human resources and business—investigated petitioner’s complaint. They interviewed the student, a guidance counselor, a student witness, and the principal. The student witness stated that she did not see the principal touch the student—just his cell phone. The investigators reviewed video footage of the incident from the hallway camera, which did not reveal any physical contact between the student and the principal. While the parties dispute whether the principal made a verbal command prior to the incident at issue, the investigation yielded no evidence that the principal used physical force against the student. Therefore, I cannot find the superintendent’s determination to be arbitrary or capricious.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 While petitioner also names the middle school principal in the caption of the appeal, she did not serve him with a copy of the petition or seek any relief against him.
 The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11  [d]).
 As described below, the student spoke to school officials as part of their investigation.