Appeal of A.L. and H.L., on behalf of their daughter, from action of the Board of Education of the Richfield Springs Central School District regarding student discipline.

Decision No. 17,089

(May 24, 2017)

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

ELIA, Commissioner.--Petitioners appeal a decision of the Board of Education of the Richfield Springs Central School District (“respondent”) which imposed discipline on a student (“the assailant”) who physically assaulted their daughter (“the student”).  The appeal must be dismissed.

The record reflects that, on November 20, 2013, the assailant confronted the student in school and physically assaulted her.  A classmate eventually intervened, and the assailant proceeded to attack the intervenor.  A teacher eventually ended the fight by tackling both the assailant and intervenor.

Later that day, the district conducted an investigation which included interviews with the assailant and the student.  Thereafter, the district took several steps to separate the students in the classroom and in the hallways.  The district also imposed discipline on the assailant, the details of which are not elaborated upon in the record.[1]  This appeal ensued.  Petitioners’ request for interim relief was denied on January 6, 2014.

Petitioners assert that the district imposed an insufficient penalty on the assailant.  Petitioners argue that the severity of the assailant’s conduct warranted more than a five-day suspension, which they assert is the minimum penalty required by the district’s code of conduct.  Petitioners contend that the district’s lenient penalty has caused their daughter fear, and that the district did not take adequate steps to ensure their daughter’s safety.  Petitioners further assert that the assailant was improperly allowed to participate on a school sports team after she returned to school.  Petitioners also argue that the assailant’s attack of the student constituted bullying and harassment within the meaning of the Dignity for all Students Act (“DASA”), and that their daughter was the victim of incidents of bullying and harassment both prior to and after the incident that were reported to the district, which took no action.

For relief, petitioners seek orders which permanently suspend the assailant from respondent’s schools; bar her from school grounds; disqualify her from athletic competitions and extracurricular activities (and inform the district that assault on an “upstanding citizen,” per se, disqualifies a student from such activities); and limit contact between the student and the assailant in school.  Alternatively, if the assailant is allowed to continue to attend respondent’s schools, petitioners request that the assailant receive anger management counseling.  Petitioners also request that the district be reminded of its obligations to update the version of its code of conduct available on its website and to legally classify and document all bullying, harassment, and discrimination. 

Petitioners further request that I “suggest []” that the district: (1) consider bullying, harassment, and assault as disqualifying factors for student athletes; (2) mandate “specific discipline [ ]” for bullying, harassment, and assault; (3) clarify its code of conduct; (4) not downplay the severity of certain events; (5) authorize respondent to hear and act upon parental complaints; (6) offer explanations, with examples, to complaining parents; and (7) provide anger management counseling to any student who actively participates in physical aggression at school.

Respondent contends that the appeal should be dismissed for failure to join the assailant, a necessary party.  Respondent further argues that petitioners lack standing to challenge a disciplinary action taken against the assailant.  Respondent additionally argues that petitioners fail to state a claim upon which relief may be granted, and fail to meet their burden to show a clear legal right to the requested relief.  Finally, respondent argues that it acted reasonably and in accordance with law.

To the extent petitioners seek an order directing respondent to take various disciplinary and other actions against the assailant and assert that the district continues to violate DASA by failing to provide their daughter with a safe educational environment by not taking sufficient steps to prevent bullying and harassment from continuing to occur, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  The incident that led to this appeal occurred in 2013 and, in an affidavit by respondent’s superintendent submitted in response to a directive by my Office of Counsel, respondent confirmed that neither the assailant nor petitioners’ daughter are currently enrolled in respondent’s district.  Therefore, no meaningful relief can be granted in this regard and petitioners’ claims must be dismissed as moot.

The appeal must also be dismissed for failure to join a necessary party.  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  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 Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, the assailant is a necessary party to the instant appeal, as she would clearly be affected by an order directing respondent to suspend her for a longer period, bar her from school grounds, disqualify her from athletic competitions and extracurricular activities or compel her to submit to counseling.  Therefore, petitioners’ claims must be dismissed for failure to join the assailant (Appeal of J.M., 52 Ed Dept Rep, Decision No. 16,476).

To the extent petitioners seek an order directing respondent to modify and/or update its code of conduct and rules on athletic eligibility in various respects and establish an appeals procedure to the board of education relating to parental complaints, such claims must be dismissed for failure to state a claim upon which relief may be granted.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).  Such district policies are within the discretion of the board of education and petitioners have not alleged that respondent’s existing policies are in violation of law with respect to the issues they have identified.  Therefore, any determination on these issues would be in the nature of an advisory opinion and it is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

Petitioners also request an order directing respondent to respond to all complaints of bullying and harassment pursuant to DASA.  Education Law §13(1)(b), (d), and (e) do, of course, require school districts to have policies and procedures for handling reports of harassment, bullying, or discrimination, promptly investigate such reports and take appropriate action in response.  Petitioners have alleged that they have complained of incidents of bullying and harassment of their daughter by the assailant which occurred prior to and after the assault, and that no action was taken by respondent.  This is denied by respondent, which alleges that no further incidents have occurred between the students since the assault.  On this record, petitioners have not proved that such reports of bullying and harassment were made and not acted upon by respondent.

Finally, petitioners are correct that Education Law §2801(5)(a) requires boards of education to annually review and update their codes of conduct as necessary.  However, petitioners have not met their burden of proving that respondent violated §2801(5)(a).

While I am constrained to dismiss the appeal for the above reasons, nothing in this decision should be read to minimize the seriousness of the assailant’s conduct or the district’s obligation to ensure the safety of petitioners’ daughter.  It appears from the record that the assailant’s admitted acts in this case were extremely violent, and petitioners’ daughter was understandably fearful of future retribution.  Thus, I fully appreciate petitioners’ concern about the leniency of the penalty imposed by respondent on the assailant.  Such penalty was, however, within the range of penalties prescribed by respondent’s code of conduct.  I remind respondent that, in addition to the possibility of imposing a longer out-of-school suspension, it had the option to impose an in-school suspension to ensure that the two students remained separated.  The record indicates that respondent did take measures to minimize the contact between the two students despite the small size of the school.  However, I am concerned with the fact that, less than a month after the assault, the district permitted the assailant to attend class with the student.[2]  I remind respondent that the district has an obligation to provide a safe school environment for all students and it should consider all its options in balancing the interests of the violent student and the victim.

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

THE APPEAL IS DISMISSED.

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