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Decision No. 15,873

Appeal of R.R. and P.R., on behalf of their daughter H.R., from action of the Board of Education of the Camden Central School District regarding bullying.

Decision No. 15,873

(February 19, 2009)

O’Hara & O’Connell, attorneys for petitioners, Timothy J. Collins, Esq., of counsel

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Henry F. Sobota, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal actions of the Board of Education of the Camden Central School District (“respondent”) regarding the alleged bullying of their daughter, H.R.  The appeal must be dismissed.

H.R. began attending respondent’s schools in the 2003-2004 school year, and in 2005-2006 was a junior at its high school.  H.R. played on both the girls’ junior varsity and varsity basketball teams.

According to petitioners, ever since H.R. began playing basketball at respondent’s high school, she has been the subject of constant harassment, threats and/or bullying from other students and athletes.  On several occasions beginning in May 2005, petitioners met with respondent’s administrators and coaches to discuss these issues.  Respondent’s superintendent asked his assistant superintendent to investigate petitioners’ claims.  Dissatisfied with the results, petitioners again asked for a meeting with respondent’s superintendent, who directed that a “safety net” be set up for H.R. at the high school.

On September 30, 2005, an off-campus incident occurred wherein H.R. was approached, surrounded and allegedly threatened by a group of people, including one particular student athlete who petitioners claim is responsible for much of the alleged harassment and bullying that H.R had experienced.  Although H.R. was not physically injured, the Camden police were called to the scene and criminal charges were apparently filed against certain individuals.  In addition, the district attorney’s office began an investigation into the matter and subpoenaed documents and/or records from respondent.

Believing that respondent’s personnel were not fully complying with the subpoenas, petitioners contacted respondent’s superintendent, assistant superintendent and a board member to request compliance.  Petitioner P.R. also wrote to respondent regarding H.R.’s alleged ongoing harassment and the district’s alleged failure to respond.  P.R. asked respondent to intervene and to work with the district attorney’s office.  On January 17, 2006, respondent met with petitioners in executive session to discuss this matter.  Although the record before me does not reflect the details of that discussion, it is clear that, at a minimum, petitioners requested that respondent discipline the student athlete who had confronted their daughter on September 30, 2005.  By letter dated February 15, 2006, respondent declined to take disciplinary action.  This appeal ensued.

Petitioners claim that by failing to take appropriate actions against those responsible for allegedly harassing and bullying H.R., respondent has failed to provide her with a safe and positive educational and athletic environment, and that her health and welfare has been jeopardized as a result.  In addition, petitioners accuse the basketball coaches of mistreating H.R. and contributing to the situation. Petitioners also allege that respondent has failed to fully cooperate with the district attorney’s investigation into the September 30, 2005 incident.

Petitioners ask that I remove and/or reprimand the basketball coaches, the superintendent and assistant superintendent and that I recommend that the coaches’ certification be revoked.  Petitioners also request that I reprimand respondent board in its entirety, all staff involved in breaking H.R.’s confidentiality and a student who allegedly bullied and abused H.R.  Petitioners further request that I direct that all information regarding “harassing activity against [H.R.]” be given to the district attorney’s office, that I order the district to rewrite and abide by its student planner and athletic policy, that the district provide a psychologist for the girls basketball team and that I protect any students and staff from reprisal.

Respondent asserts that it acted in good faith and within its discretion by taking a “proactive, mediative and conciliatory approach” when addressing petitioners’ claims.  Respondent also argues that petitioners’ claims should be dismissed as moot and untimely, for failure to join necessary parties and because the petition is defective.

I must first address a preliminary issue.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

In addition, by letter dated July 10, 2006, petitioners submitted additional papers pursuant to §276.5 of the Commissioner’s regulations.  Respondent objects to this submission.  Additional affidavits, exhibits and other supporting papers may only be submitted with the permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Cass, et al., 46 Ed Dept Rep 321, Decision No. 15,521; Appeal of Johnson, 46 id. 67, Decision No. 15,443).

Although petitioners assert that their additional submission, a “supplemental affidavit” from petitioner R.R., is based on “after acquired information,” I find that it recasts old facts and allegations which should have been raised in their petition.  Accordingly, I have not considered petitioners’ belated submissions (seee.g. Appeal of Lilly, 43 Ed Dept Rep 459, Decision No. 15,050; Appeal of Goldin, 43 id. 330, Decision No. 15,009).

Petitioners request that I remove and/or reprimand a number of individuals.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of G.H.L., 46 Ed Dept Rep 571, Decision No. 15,598; Appeal of Doe, 46 id. 483, Decision No. 15,571; Appeal of Johnson, 46 id. 432, Decision No. 15,555).  It is the notice of petition which alerts a party to the fact that he or she is required to appear in the appeal and to answer the allegations contained in the petition (Appeal of Warshaw, 44 Ed Dept Rep 360, Decision No. 15,198; Appeal of Maliha, 41 id. 367, Decision No. 14,716).

None of the individuals petitioners seek to remove and/or reprimand were properly joined, because petitioners did not name them in the caption of their papers.  (Appeal of Loschiavo, 45 Ed Dept Rep 525, Decision No. 15,404; Appeal of T.R. and M.D., 43 id. 411, Decision No. 15,036).  While petitioners belatedly attempted to correct this deficiency, they did not amend the caption of their petition nor did they seek permission to join additional parties as respondents, as required by §275.1 of the Commissioner’s regulations (seee.g. Appeal of Gilmore and Jordon-Thompson, 42 Ed Dept Rep 334, Decision No. 14,874).  Thus, to the extent that petitioners ask that I take adverse action against any individuals, their appeal must be dismissed.

Moreover, to the extent that petitioners seek a reprimand of respondent, there is no provision in the Education Law authorizing the reprimand of board members by the Commissioner of Education (Appeal of Ewart, 44 Ed Dept Rep 147, Decision No. 15,127).

Nor am I able to provide petitioners with the other relief that they seek.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  The petition fails to set forth a basis upon which petitioners claim entitlement and/or a legal right to the remaining relief that they seek.  I must therefore dismiss petitioners’ requests.

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