Decision No. 13,004

(September 13, 1993)

SOBOL, Commissioner.--Petitioners appeal respondent's denial of their request for the payment of tuition and transportation costs for their daughter's placement in another school district. The appeal must be dismissed.

In September 1992, petitioners' daughter enrolled as a ninth grade student in respondent's high school and was assigned to the unit of the high school known as House III. On December 3, 1992, petitioners' daughter was physically assaulted at the high school by a male student named RB. Petitioner Emily Lore and her daughter reported the incident to House III Principal Donald Conetta, who investigated. On December 4, 1992, RB was suspended for five days beginning December 7, 1992.

In the three weeks following the assault by RB, a number of other students, who claimed to be upset over RB's suspension, threatened and assaulted petitioners' daughter. Specifically, petitioners allege that the following incidents occurred: a number of students made various unspecified threats to petitioners' daughter; a female student named VC confronted petitioners' daughter on an unspecified occasion and punched petitioners' daughter in a hallway of the high school on another occasion; on December 4, 1992, RB, VC and several others threatened petitioners' daughter at a local pizzeria; on or about December 10, 1992, VC confronted petitioner Emily Lore and her daughter at her daughter's locker (the "locker incident"); on or about December 21, 1992, a group of girls threatened petitioners' daughter and attempted to steal her friend's jacket or shoes outside the lunch room (the "lunch room incident"); and on December 23, 1992, a group of seven girls, including VC, surrounded petitioners' daughter's desk in her art classroom, pulled her hair, punched her and taunted her with racial slurs (the "art room incident"). Petitioners claim that the assaults on their daughter were racially motivated.

The parties present substantially different versions of what happened following these incidents. The parties also dispute what was said by petitioners and respondent's administrators when the incidents were reported. Petitioners allege that they reported all the incidents promptly and that respondent's administrators failed to take appropriate disciplinary action. The administrators, however, maintain that they took proper disciplinary action and allege that petitioners did not report all the incidents immediately, did not always provide sufficient information, and refused to cooperate with the district.

Notwithstanding the parties' conflicting accounts, it is evident that respondent's administrators took various actions following the incidents. After the "locker incident", Mr. Conetta changed petitioners' daughter's locker and warned VC to stay away from petitioners' daughter upon penalty of suspension. As a result of the "art room incident", Mr. Conetta and Assistant Principal Sonja Johnson assigned a security monitor to escort petitioners' daughter to her classes on the afternoon of December 23, 1992, the day of the "art room incident", and upon her return to school, after an eleven day Christmas vacation, on January 4 and 5, 1993. In addition, on January 4, 1993, Assistant Principal Sonja Johnson sent a memo to all of the student's teachers advising them that petitioners' daughter had been harassed and instructing them to monitor her well-being. After an investigation, the administrators identified three students who were involved in the "art room incident". Two of the students, including VC, were suspended for five days with recommendations for superintendent's hearings, and the third student was suspended for two days.

Between January 4, 1993 and January 7, 1993, petitioners contacted a number of administrators, including Superintendent Linda Kelly, Assistant Principal Sonja Johnson, and House I Principal Fred Goldberg. Petitioners taped several of these conversations.

Petitioners' daughter did not return to the high school after January 5, 1993. On January 7, 1993, petitioners' attorney wrote to Superintendent Kelly, advised her that petitioners' daughter had been removed from the high school and requested that respondent pay the tuition and transportation costs for petitioners' daughter to attend school in another district. On January 14, 1993, respondent's attorney wrote a letter denying petitioners' request. Petitioners commenced this appeal on January 29, 1993.

Petitioners contend that their daughter is terrified to return to the high school; that their daughter is at risk of death or a serious beating if she returns to the high school; that these circumstances result from respondent's incompetence; and that respondent has effectively denied their daughter a free public education. Petitioners request an order overruling respondent's refusal to provide for the free public education of their daughter in another district; directing respondent to contract with the Eastchester Union Free School District to provide, at respondent's expense, a free public education for their daughter; directing that respondent contract with a public carrier, at respondent's expense, to transport their daughter to and from the Eastchester School District; and directing an independent investigation of respondent and/or its officials or employees with respect to their daughter's complaints and assaults.

Respondent contends that its administrators acted quickly and responsibly; took proper steps to ensure the safety of petitioners' daughter; and took appropriate disciplinary action. Respondent maintains that it has at all times made a free public education available to petitioners' daughter. Respondent further maintains that it has discretion to administer disciplinary procedures and has discretion with respect to alternative educational placement. Respondent also alleges that petitioners sought to interfere in disciplinary matters affecting other students; refused to attend a conciliation conference with RB's parents in order to alleviate tensions; and are motivated by racial animus.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). On the record before me, I find that petitioners have failed to establish that respondent has deprived their daughter of a free public education. A school district is obliged to supervise adequately the activities of students within its charge and to maintain discipline in the schools (Appeal of DiMilia, 30 Ed Dept Rep 391; Education Law '2503(2); Cavello v. Sherburne-Earlville Central School Dist., 110 AD2d 253; Lauricella v. Bd. of Educ. of City of Buffalo, 52 AD2d 710). While a school is not an insurer of the safety of its students, it will be held liable in damages for a foreseeable injury proximately related to the absence of supervision (Cavello, supra).

Petitioners have failed to show that the supervision or discipline afforded by respondent was inadequate. The only incident which petitioners claim resulted from a lack of supervision is the "art room incident." The art teacher alleges, in her affidavit, that she was standing in the hallway, in front of her classroom, at or just after the bell, when she saw VC and several other girls leave her classroom. Her action, in standing

outside the classroom supervising the transit of students between periods, does not amount to a lack of supervision.

In addition, the affidavits submitted by respondent evidence that respondent's administrators took prompt and appropriate actions in response to the various incidents. When petitioners' daughter was assaulted by RB, he was promptly suspended. When VC confronted petitioner Emily Lore and her daughter at her locker, House III Principal Conetta reassigned her locker and warned VC to stay away from petitioners' daughter upon penalty of suspension. When petitioners' daughter was threatened by a group of students in the art room, all three of the students who were identified were promptly suspended, two with recommendations for superintendent's hearings. In addition, following the "art room incident", Assistant Principal Johnson, assigned a security monitor to escort petitioners' daughter to class and sent a memo to all of her teachers advising them that she had been harassed and instructing them to monitor her well-being. Petitioners have not met their burden of proof in light of respondent's actions, set forth above.

Moreover, petitioners have failed to submit any medical or psychological proof in support of their allegations concerning their child's physical or mental inability to attend respondent's school. There is also insufficient evidence that petitioners' daughter is in danger of serious injury if she returns to the high school. In fact, the record shows that two of the students who were involved in the incidents voluntarily left the school and that long-term disciplinary suspensions are pending against two other students. I, therefore, find that although petitioners' daughter was involved in a series of upsetting incidents, respondent has not denied petitioners' daughter a free public education in its schools. Accordingly, petitioners' request for the payment of tuition and transportation costs and an investigation of respondent and/or its officials or employees is denied (Appeal of Cook, 23 Ed Dept Rep 323; Appeal of Keene, 19 id. 547).

In view of this disposition, I will not consider the other issues raised by the parties. While I recognize the adversarial nature of this proceeding, the tone of the papers reveals a great deal of animosity between the parties. In the event petitioners' daughter returns to respondent's district, both parties should make a reasonable effort to work together for the benefit of this particular student.

THE APPEAL IS DISMISSED.

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