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Decision No. 14,747

Appeal of EUGENE PATRICK DEVANY, on behalf of his daughter SARA ELIZABETH, from action of the Board of Education of the Massapequa Union Free School District regarding a sexual harassment complaint.


Decision No. 14,747

(June 26, 2002)

Guercio & Guercio, attorneys for respondent, Randy Glasser, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Massapequa Union Free School District ("respondent") that his daughter"s elementary school teacher did not violate the district"s sexual harassment policy. The appeal must be dismissed.

During the 2000-2001 school year, petitioner"s daughter, Sara, was enrolled in the sixth grade in the East Lake Elementary School ("East Lake") in respondent"s district. On or about January 3, 2001, petitioner complained to East Lake"s principal that Sara"s teacher was teaching sex education to her students and encouraging them "to write and speak foul and vulgar terms and descriptions of illegal sexual activities." Petitioner alleged that this material was not part of the curriculum and had made his daughter uncomfortable. In accordance with respondent"s sexual harassment policy, school officials conducted an investigation that included, among other things, interviews with the teacher, a teaching assistant who was present in the classroom when the discussion took place, various administrators and petitioner.

In addition to complaining to the principal, petitioner filed two complaints with the State Education Department"s ("SED") Teacher Discipline Unit. The first, dated January 11, 2001, essentially addressed the incident that was the subject of his sexual harassment complaint. The second, dated January 19, 2001 and termed a "supplemental complaint," complained about the district"s handling of the sexual harassment investigation and requested an investigation of the principal and the assistant superintendent.

In response to petitioner"s sexual harassment complaint, respondent"s assistant superintendent for curriculum and instruction issued a report on March 23, 2001 finding that no sexual harassment had occurred. This finding was subsequently adopted by respondent"s superintendent of schools. In accordance with respondent"s sexual harassment policy, petitioner appealed the superintendent"s determination to respondent. In a lengthy decision dated August 9, 2001, respondent detailed the underlying facts revealed by the district"s investigation and engaged in a thorough legal analysis of the district"s sexual harassment policy and the applicable law before concluding that the teacher"s conduct did not constitute sexual harassment. Respondent noted, among other things, that "[a]lthough we disagree with the judgment exercised by the teacher" we find that no sexual harassment occurred" the acts in question, had an instructional purpose, were discussed in clinical terms, and this method of instruction was authorized by [the teacher"s] supervisors" ." Respondent did, however, direct officials to "review the instructional techniques, and curriculum and make recommendations for such corrective measures as are necessary." This appeal ensued.

Petitioner contends that respondent"s decision is arbitrary and capricious and was rendered without adequate fact finding and investigation. Petitioner also challenges the accuracy of numerous statements and findings in respondent"s report. Additionally, petitioner contends, among other things, that respondent continues to allow teachers to discuss sexual matters that are not part of the curriculum and does not allow parents the option of exempting their children from participating in "sexual maturation and education classes." For relief, petitioner requests, among other things, that I consolidate his complaints before SED with this appeal and suspend the teacher"s certification as a health instructor "pending further hearing." Petitioner also requests, among other things, that I vacate respondent"s August 9, 2001 decision and permit parents to remove their children from "all sexuality lessons not mandated by the state" ."

Respondent contends that the appeal is untimely and moot and improperly seeks an advisory opinion. Petitioner also contends that petitioner failed to join the teacher as a necessary party and that an appeal is not the proper forum to address the claims raised in petitioner"s complaints with SED. As to the merits, respondent alleges, among other things, that respondent properly found that the teacher"s conduct did not constitute sexual harassment and that respondent, in addressing the health curriculum for its sixth grade students, properly exercised its authority to approve the general course of study in its schools.

At the outset, I note that respondent objects to portions of petitioner"s reply. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Humber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. ___, Decision No. 14,527; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Therefore, while I have reviewed petitioner"s submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

I also note that an appeal before the Commissioner is not the proper forum to seek the suspension of a teacher"s teaching certificate. The Commissioner of Education has established a Teacher Discipline Unit within SED with authority to investigate whether a substantial question exists as to the moral character of a certified individual, and where such question is found, to conduct a hearing to determine whether an individual"s certification should be revoked or suspended. Indeed, petitioner has filed two complaints with SED relating to the teacher"s conduct that is the subject of this appeal. Accordingly, I will not consolidate those complaints with this appeal or address petitioner"s request to suspend the teacher"s certification.

Additionally, an appeal to the Commissioner of Education is appellate in nature and does not provide for investigations (Appeal of Sherwood, 39 Ed Dept Rep 791, Decision No. 14,382; Appeal of Wierzchowski, 39 id. 682, Decision No. 14,348). Accordingly, the appeal is also improper to the extent that it seeks an investigation of the actions of school officials.

An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). It appears that petitioner received a copy of respondent"s decision on August 20, 2001, however, petitioner did not commence this appeal until October 3, 2001, beyond the 30-day timeframe. Petitioner requests that I excuse the delay, citing a number of factors, including, his initial attempt to commence the appeal by letter dated September 16, 2001, and respondent"s failure to provide him with a copy of the superintendent"s decision or inform him of the appeals process. Petitioner also cites the Governor"s Executive Order issued in response to the September 11, 2001 terrorist attacks which temporarily suspended statutes of limitation pertaining to various legal proceedings.

Based on the record before me, I decline to dismiss the appeal on timeliness grounds. On September 12, 2001, the Governor issued Executive Order 113.7, effective September 11, 2001, which temporarily suspended certain laws establishing limitation periods, including any "statute, local law, ordinance, order, rule or regulation " establishing limitations of time for the filing or service of any legal action, notice or other process or proceeding that the courts lack authority to extend through the exercise of discretion " (emphasis added)." On October 4, 2001, the Governor issued Executive Order 113.28, which, among other things, generally lifted the suspension imposed by the earlier order, effective October 12, 2001.

I find that the broad language of Executive Order 113.7 encompasses the limitation period applicable to a proceeding commenced pursuant to Education Law "310 and constitutes good cause to excuse petitioner"s delay. From the record, it appears that the 30-day period applicable to petitioner"s challenge expired on September 19, 2001 and petitioner commenced the appeal on October 3, 2001. Because the Governor"s suspension order was in effect when the 30-day limitation period expired and when petitioner commenced this appeal, I find that the appeal is timely.

However, the appeal must be dismissed for failure to join a necessary party. Petitioner challenges respondent"s determination that the conduct of Sara"s teacher did not constitute sexual harassment and requests that respondent"s determination be vacated and the matter remanded for further "investigation, fact finding and hearing." Pursuant to respondent"s sexual harassment policy, if investigation reveals that sexual harassment has occurred, appropriate sanctions including dismissal from employment may be imposed. Accordingly, the teacher"s rights would be affected by a determination of the merits of this appeal, and therefore, the teacher is a necessary party and should have been named and served with a copy of the notice and petition. Inasmuch as petitioner failed to join her as a party, the appeal must be dismissed (Appeal of Rider, 39 Ed Dept Rep 282, Decision No. 14,238; Appeal of a Student with a Disability, 38 id. 378, Decision No. 14,059).

Even if the appeal were not dismissed on procedural grounds, I would dismiss it on the merits. A board of education has broad powers pursuant to Education Law "1709(13) and (33) concerning the superintendence, management, and control of a school district. I will not substitute my judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws (Appeal of Rider, 39 Ed Dept Rep 282, Decision No. 14,238; Appeal of Taber, et al., 32 id. 346, Decision No. 12,850). On the record before me, I find nothing improper about respondent"s investigation of petitioner"s complaint. District officials took petitioner"s complaint seriously, and conducted a thorough investigation of the matter in accordance with respondent"s policy. Nor do I find any basis to disturb respondent"s conclusion that the teacher"s conduct did not constitute sexual harassment. Respondent"s policy provides, in pertinent part:

The Board recognizes that sexual harassment may take the form of physical contact or verbal abuse and may be psychological in nature. The Board condemns behavior which may manifest itself in the creation of a hostile or embarrassing environment, through the telling of obscene or off-color stories or jokes, the use of profane language, the raising of topics of a sexual nature with students of one gender or the other or the discussion of sexual matters when not tied to the curriculum or the course content"

The teacher candidly admitted that she had answered "in a clinical fashion" a number of sex-related questions that she had permitted students to submit anonymously during a human reproduction lesson. She also indicated that she had been instructed by district personnel to answer such questions in a clinical fashion. It is clear from the record that the teacher did not intend to make petitioner"s daughter or any other student uncomfortable, that the event was an isolated incident, and that Sara remained in the class for the remainder of the school year. Further, the teacher fully cooperated with school officials investigating the matter. Under these circumstances, I find no basis to substitute my judgment for respondent"s. I also note that after investigating petitioner"s complaint, district officials directed all elementary teachers to immediately avoid classroom discussions on sexual intercourse until they received further clarification from the administration. Further, although respondent found that Sara"s teacher had not engaged in sexual harassment, respondent did recommend that district administrators review the instructional techniques and curriculum related to the health and sexuality issues and provide teaching staff with "direction, instruction and correction." In sum, on the record before me, I find nothing improper about respondent"s handling of petitioner"s complaint.

Finally, I also find without merit the remainder of petitioner"s claims pertaining to respondent"s choice of textbooks and curriculum, and respondent"s alleged refusal to allow students to opt out of the sexual education portion of the curriculum or allow parents to tape record it. Petitioner has the burden of establishing all the facts upon which he seeks relief (8 NYCRR "275.10; Appeal of Finkel, 41 Ed Dept Rep , Decision No. 14,619; Appeal of Lilly, 39 id. 601, Decision No. 14,324; Appeal of Trombley, 39 id. 115, Decision No. 14,189). Furthermore, the burden is on petitioner to allege and prove facts upon which relief may be granted, not on the respondent to rebut conclusory allegations (Appeal of Finkel, supra; Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). Petitioner fails to supply any proof to support his conclusory allegations.

In light of this disposition, I need not address the parties" remaining contentions.