Appeal of D.B. and S.B., on behalf of their child, from action of the Board of Education of the Hudson Falls Central School District regarding student bullying.

Decision No. 18,348

(October 24, 2023)

Bartlett, Pontiff, Stewart & Rhodes, P.C., attorneys for respondent, Karla Williams Buettner, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal from decisions of the Board of Education of the Hudson Falls Central School District (“respondent” or “board”) concluding that their child was not subjected to bullying or harassment in violation of the Dignity for All Students Act (“Dignity Act”, Education Law, Article 2).  The appeal must be dismissed.

At all times relevant to this appeal, petitioners’ child attended ninth grade in respondent’s school district.  In February and April 2023, petitioners filed 36 bullying incident reports (“complaints”) with the district alleging various acts of harassment committed by several students.  The complaints were investigated by the district’s Dignity Act Coordinator in conjunction with two administrators.

On or around February 21, 2023, the district notified petitioners of its determination as to 18 of the complaints.  The remaining determinations were conveyed to petitioners on March 23 and April 21, 2023.  Petitioners then appealed 33 of the 36 decisions to the superintendent.  The superintendent deemed most of the complaints unfounded or inconclusive but deemed two founded and one founded in part.  Petitioners appealed these determinations to respondent, which considered them in three separate board meetings held on April 4, May 2, and May 8, 2023.  Respondent upheld the superintendent’s determinations; this appeal ensued.

Petitioners argue that respondent’s Dignity Act determinations were arbitrary or capricious, alleging that the board improperly weighed the evidence before it.  Petitioners acknowledge that this appeal was commenced more than 30 days after some of these determinations but asserts that it was for good cause.

Respondent argues that many of petitioners’ challenges must be dismissed as untimely.  On the merits, respondent argues that its determinations were supported by the record before it.

First, I must address two procedural issues.  Respondent contends that most of petitioners’ claims are 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).  As described above, respondent issued determinations on petitioners’ 36 Dignity Act claims on various dates.  The parties acknowledge that this appeal was commenced more than 30 days after some of these determinations.  While these claims would ordinarily be dismissed as untimely, I decline to do so under the unique facts of this case.  Petitioners filed three dozen Dignity Act complaints related to the same underlying issues that were resolved on different dates over a few weeks.  Given the interrelatedness of the complaints, I find that petitioners reasonably awaited receipt of all determinations before commencing this appeal.  To hold otherwise would encourage the filing of multiple, duplicative appeals concerning the same issue.

Second, petitioners filed a 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 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).  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.

Turning to the merits, the Dignity Act 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 [7]; 8 NYCRR 100.2 [kk] [1] [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 …[1]

A district’s Dignity Act 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).

Petitioners have not proven that any of respondent’s determinations were arbitrary or capricious (see Appeal of John and Jane Doe, 61 Ed Dept Rep, Decision No. 18,088; Appeal of I.I., 61 id., Decision No. 18,082; Appeal of a Student with a Disability, 59 id., Decision No. 17,859).  Petitioners generally argue that respondent improperly credited the accounts of other witnesses over that of their child.  However, the record reflects that district officials investigated and responded to each of petitioners’ complaints, interviewing multiple witnesses and reaching reasoned conclusions.  While petitioners submit an affidavit from the student in support of their claims, this merely reiterates the student’s version of these events, which respondent considered but did not find determinative.[2]  As such, petitioners have not met their burden of proving a clear legal right to their requested relief and the appeal must be dismissed (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).

Additionally, petitioners’ request for an “order that disciplinary measures ... be taken against each student who has violated DASA” must be dismissed as petitioners lack standing to compel respondent to impose discipline on other students (Appeal of J.A., 58 Ed Dept Rep, Decision No. 17,522; Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153). 

I have considered petitioners’ remaining arguments and find them to be without merit.

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