Appeal of R.T. and E.T., on behalf of their son H.T., from action of the Board of Education of the West Islip Union Free School District, Superintendent Bernadette Burns, Assistant Superintendent Anne Rullan, Christine Mulroy, and Brian Taylor, regarding grading and the Dignity for All Students Act.

Decision No. 17,340

(March 13, 2018)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondents, Michael G. Vigliotta, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the actions of the Board of Education of the West Islip Union Free School District (“respondent” or “respondent board”) and certain school district employees (collectively “respondents”) regarding their son’s grades in AP Biology and allege that the conduct of certain respondents in connection with the grading violated the Dignity for All Students Act (“DASA”).  The appeal must be dismissed.

During the 2014-2015 school year, petitioners’ son, H.T. (the “student”), was a senior in respondent’s district and was enrolled in AP Biology, a first-period class taught by teacher Christine Mulroy (“respondent Mulroy”).  The record indicates that the student was frequently late to class (52 times during the 2014-2015 school year) and that, pursuant to the district’s attendance policy, respondent Mulroy would direct the student to report to the attendance office for a late pass when he arrived late.  According to petitioners, respondent Mulroy would openly bully and harass the student as a result of his habitual tardiness.  This alleged bullying and harassment “escalated during the school year” and carried over into her grading of his assignments which “peaked” in March 2015 over an eleven-day period when respondent Mulroy “penalized, without justification, five consecutive AP Biology Labs submitted by [the student].”  On April 20, 2015, petitioners met with respondents Mulroy, Taylor, and the guidance counselor.  According to petitioners, at the meeting, respondent Taylor called the student a liar and said that he had senioritis and did not care about doing his work anymore since he had already been accepted to college.

Petitioners subsequently met with the principal on April 29, 2015 and requested to have the student’s grades changed and asserted that respondent Mulroy and Taylor’s actions constituted bullying.  According to an affidavit sworn to by the principal, he also met with the student on April 30 and May 8, 2015, in the course of his investigation of petitioners’ complaints.  The principal indicated that, on May 8, 2015, he informed the student that he would not be permitted to make up the missing work.

By letter dated June 8, 2015, petitioners filed a DASA complaint with respondent’s assistant superintendent, respondent Rullan, alleging that respondents Mulroy and Taylor were bullying the student.  Respondent Rullan commenced an investigation.  By letter dated July 6, 2015, respondent Rullan issued a determination concluding that petitioners’ claims of bullying and harassment were unfounded.  Petitioners subsequently appealed respondent Rullan’s determination to respondent board. 

By letter dated September 11, 2015, respondent board informed petitioners that it upheld respondent Rullan’s determination.  This appeal ensued.

Petitioners assert that respondents violated DASA by virtue of respondent Mulroy’s repeated berating of the student for his tardiness to her class and for submitting assignments late, among other things.  Petitioners request a determination overturning respondent board’s determination; that the student’s 2014-2015 AP Biology grades and his permanent high school record be amended to reflect as follows: for the second quarter, from “86” to “87”; for the third quarter, from “82” to “88”; for the final grade, from “86” to “87”; and that his class rank be recalculated based on the above amendments.    Petitioners further request that their DASA complaint be reopened and thoroughly investigated and that they be given an opportunity to address respondent board publicly regarding its DASA investigation.  Petitioners also request that respondents Mulroy and Taylor be reprimanded and that respondent Taylor be directed to apologize to the student and petitioners “for his slanderous comments made at the April 20^th Meeting.”

Respondents argue that the petition should be dismissed as untimely and as moot; for failure to join necessary parties; and for lack of standing.  Respondents maintain that petitioners have also failed to demonstrate that respondent board’s determination or the individual respondents’ actions were arbitrary and capricious and that the relief requested is unavailable in an appeal to the Commissioner of Education.  Respondents also request a certificate of good faith with respect to the individual respondents.

Initially, I must address several procedural matters.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Petitioners have submitted a 75-page reply and reply affidavits consisting of 53, 38, and 31 pages as well as additional exhibits.  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.

Petitioners request permission to submit a reply memorandum of law, to which respondents object.  Reply memoranda of law may be accepted only with the prior approval of the Commissioner (8 NYCRR §276.4; Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053; Appeal of Gorsky, 47 id. 162, Decision No. 15,658).  A reply memorandum, however, may not be used to belatedly add new assertions that are not part of the pleadings (Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).  Here, petitioners do not explain why they believe a reply memorandum is necessary to a determination of this appeal, nor have they explained what issues the reply memorandum would address or provided a copy of their proposed reply memorandum.  Petitioners had an opportunity to, and did, submit an 84-page memorandum of law after the service of respondents’ answer; therefore, I decline to allow petitioners to submit a reply memorandum of law (see e.g. Appeal of C.P., 49 Ed Dept Rep 369, Decision No. 16,053).

Respondents argue that the petition must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48 Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

The record indicates that petitioners met with district staff on April 20, 2015 to discuss the student’s attendance and the grades he received in March 2015.  Petitioners subsequently filed a DASA complaint and, by letter dated July 6, 2015, respondent Rullan issued her determination with regard to the DASA complaint.  Petitioners subsequently appealed respondent Rullan’s determination to respondent board, and by letter dated September 11, 2015, respondent board upheld respondent Rullan’s determination.  The affidavits of service indicate that petitioners served the petition upon respondents on October 14, 2015.  It is unclear from the record when the determination letter was received by petitioners.  Therefore, affording the usual five days for mailing, I find that petitioners commenced this appeal within thirty days of receipt of the September 11, 2015 notice of the findings of respondent board’s investigation.  Therefore, I decline to dismiss the appeal as untimely insofar as petitioners are challenging respondent board’s determination denying their appeal as it relates to alleged violations of DASA.  However, to the extent petitioners challenge the validity of the student’s grades received in March 2015, the appeal is untimely (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003).  I note that, while generally a complaint made pursuant to DASA is not a vehicle for challenging the validity of a grade, in certain circumstances a grade may be set aside if it was the product of discrimination, intimidation, taunting, harassment, and bullying (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003).  Therefore, if petitioners prevailed on their DASA claims, it is possible that petitioners could establish that an adjustment of the student’s grades is an appropriate remedy.  As discussed below, however, petitioners have not carried their burden of proof as to their DASA claims.

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).  Respondents argue that the appeal is moot because the student has graduated from respondents’ high school and is no longer a student in respondents’ schools.  However, petitioners have specifically requested that respondents revise the student’s permanent record.   Therefore, I decline to dismiss this matter as moot (Appeal of Schmitt, 39 Ed Dept Rep 617, Decision No. 14,329).

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).  Petitioners request that the student’s class rank be recalculated based on the requested amendments to his grades in AP Biology.  The interests of the student’s classmates, whose class ranks could potentially be lowered, would be adversely affected if the relief requested were granted.  However, no classmates of the student were named in this proceeding (c.f. Appeal of P.F., 49 Ed Dept Rep 313, Decision No. 16,039).  Therefore, the appeal must be dismissed to the extent petitioners request that the student’s class rank be recalculated based on the requested amendments to his grades in AP Biology.

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).  Respondents argue that petitioners lack standing because the student was 18 at the time of commencement of the instant appeal but did not verify the petition himself and has graduated and no longer attends respondents’ schools.  Generally, the named petitioner in an appeal must be a person in parental relationship to the student unless the student is over the age of 18, in which case he or she may bring his or her own appeal (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003).  Although a person over the age of 18 is legally competent to maintain an appeal, a parent may petition on behalf of his or her child (Appeal of White, 52 Ed Dept Rep, Decision No. 16,442; Appeal of John W. and Elaine W., 37 id. 713, Decision No. 13,965; Appeal of Strada, 34 id. 629, Decision No. 13,434; Appeal of Farber, 33 id. 424, Decision No. 13,100).  Moreover, petitioners do not necessarily lose standing by virtue of the student’s graduation from school (see e.g. Appeal of R.N., 38 Ed Dept Rep 138, Decision No. 14,002).  Petitioners are aggrieved in the sense that they seek a decision amending the student’s permanent record, among other things (see Appeal of Debbie L., 39 Ed Dept Rep 505, Decision No. 14,294).  Accordingly, I decline to dismiss the appeal for lack of standing.

Nevertheless, with respect to petitioners’ DASA claims, the appeal must be dismissed on the merits.  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).  While petitioners may disagree with respondents’ September 11, 2015 determination that their DASA complaint was unfounded, they have not established that such determination was arbitrary or capricious, nor have they established that the student’s grades were the product of harassment, discrimination, or bullying.

The alleged acts of bullying, harassment, and discrimination described in the petition relate essentially to allegations that respondent Mulroy harassed the student for his lateness in arriving at her first-period class;  that respondent Mulroy engaged in impermissible bullying, harassment, and discrimination in grading the student’s work; that at the April 20, 2015 meeting respondents Mulroy and Taylor violated DASA and slandered the student by accusing him of lying; that respondent Mulroy bullied the student at that meeting by making statements like “[i]t’s your word against mine”; and that respondent Mulroy retaliated against the student after petitioners reported her harassment and bullying.

Education Law §11(7) defines “harassment” and “bullying,” in relevant part, as:

the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying, that (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....  Acts of harassment and bullying shall include, but not be limited to, those acts based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender or sex.  For the purposes of this definition the term "threats, intimidation or abuse" shall include verbal and non-verbal actions.

      Education Law §12(1), which contains the prohibition against harassment, bullying, and discrimination provides as follows:

No student shall be subjected to harassment or bullying by employees or students on school property or at a school function; nor shall any student be subjected to discrimination based on a person's actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex by school employees or students on school property or at a school function.

As to the allegations of harassment for lateness, it is clear from the record that the student was chronically late to school — 52 times in the 2014-2015 school year — and that respondent Mulroy, as the student’s first period teacher, followed district policy by frequently referring him to the attendance office.  In their petition, petitioners attempt to justify the student’s lateness based on their own busy work schedules, but effectively admit that the student was repeatedly late.  Petitioners have not proven that such actions constitute “threats, intimidation or abuse” within the meaning of the definition of “harassment” and “bullying” in Education Law §11(7), or that the conduct of respondent Mulroy in responding to the student’s tardiness is otherwise the type of conduct contemplated by Education Law §11(7).  Petitioners have neither alleged nor proven that respondent Mulroy’s actions were based on the student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.  Thus, they have not proven that respondent Mulroy engaged in discrimination against the student prohibited under Education Law §12(1).  On this record, therefore, petitioners have failed to prove that respondents were arbitrary and capricious in determining that this claim of alleged bullying, harassment, and discrimination relating to the student’s lateness was unfounded.

The primary focus of the petition relates to the grading of the student’s work and a series of disputes between the student and respondent Mulroy over whether the assignments were submitted on time and were misplaced by respondent Mulroy or were late assignments or not submitted at all, and therefore properly resulted in a reduction in the student’s grade.   

I note in this regard that it is well-settled that decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law §1709[3], Appeal of Jo, 44 Ed Dept Rep 198, Decision No. 15,147) and that, barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of R.J.K. and L.K., 50 Ed Dept Rep, Decision No. 16,232; Appeal of Baselice, 39 id. 387, Decision No. 14,268).

I find that petitioners have failed to prove that the student’s grades were the product of harassment, bullying, or discrimination within the intended meaning of DASA.   The essence of petitioners’ claims relating to the grading of the student’s assignments is that respondent Mulroy acted arbitrarily, capriciously, and unreasonably in reducing the student’s grades for lateness, or failure to submit assignments or upon the student’s return from an absence in violation of district policy.  Petitioners have not proven that such actions constitute “threats, intimidation or abuse” within the meaning of the definition of “harassment” and “bullying” in Education Law §11(7), or that the conduct of respondent Mulroy in grading the student is otherwise the type of conduct contemplated by Education Law §11(7).  Petitioners have neither alleged nor proven that respondent Mulroy’s actions were based on the student’s actual or perceived race, color, weight, national origin, ethnic group, religion, religious practice, disability, sexual orientation, gender, or sex.  Thus, they have not proven that respondent Mulroy engaged in discrimination against the student prohibited under Education Law §12(1).  As I noted previously, a DASA complaint is not a vehicle for challenging a student’s grade (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003), and absent proof that the grading was the product of prohibited discrimination, a grading dispute does not state a claim upon which relief may be granted under DASA.  To hold otherwise would make any grading dispute subject to a DASA complaint, since such a dispute could always arguably interfere with a student’s educational performance.  Therefore, petitioners have failed to prove that respondents were arbitrary and capricious in determining that this claim of alleged bullying, harassment, and discrimination relating to the grading of student work was unfounded.

Petitioners’ remaining claims of alleged bullying and harassment relate to statements allegedly made by respondents Mulroy and Taylor at the April 20, 2015 meeting, including an accusation that the student was lying, and alleged retaliation by respondent Mulroy.  Respondents have produced affidavits from participants in the meeting that attest that no such statements were made and that the student’s version of what transpired in the grading of his assignments differed from respondent Mulroy’s version and the other participants believed the teacher.  Similarly, respondents deny that any retaliation occurred.  At best, therefore, the evidence is in equipoise in this regard, and petitioners, as the parties with the burden of proof, have not met their burden of proving that that respondents were arbitrary and capricious in determining that this claim of alleged bullying, harassment, and discrimination relating to statements at the meeting and alleged retaliation was unfounded (see Appeal of Curry, 55 Ed Dept Rep, Decision No. 16,795; Appeal of Phyllis and Marc B., 38 id. 301, Decision No. 14,039).

Petitioners further allege that respondents violated DASA by failing to conduct a thorough investigation of petitioners’ DASA complaint.  Education Law §13(1)(d) requires that the principal, superintendent, or their designee “lead or supervise the thorough investigation of all reports of harassment, bullying or discrimination.”

However, the record indicates that, in conducting her investigation and making her determination, respondent Rullan conducted interviews of the principal, respondents Mulroy and Taylor, and the guidance counselor.  She also reviewed board policies and the code of conduct; the principal’s investigation report and notes; employee attendance logs; respondent Mulroy’s attendance practices, planbook, assignments, grading practices; the student’s report card and progress reports, gradebook assignments, attendance record; email correspondence; and witness statements.  Following her investigation, respondent Rullan determined that petitioners’ allegations were unfounded.  As a result, by letter dated July 6, 2015, she issued a determination concluding that petitioners’ claims of bullying and harassment were unfounded.  Specifically, according to the affidavit sworn to by respondent Rullan, she determined that petitioners had not demonstrated that any of the student’s 52 incidents of lateness were inaccurate, and that respondent Mulroy’s adherence to the high school’s policy by requiring the student to report to the attendance office when late does not constitute harassment or bullying.  Further, respondent Rullan found that the grades given by respondent Mulroy during the eleven-day period in March 2015 were “fairly and appropriately given.” 

Petitioners assert that the investigation was flawed since neither they nor the student were ever interviewed.  However, respondent Rullan indicated that, after reviewing the contents of petitioners’ complaints, assessing the factual accuracy of their allegations and considering investigations which occurred prior to her investigation, she determined that additional interviews with the parents or student would have been duplicative and unnecessary.  Further, respondents maintain that petitioners had ample opportunities to be heard, including at the April 20, 2015 meeting with district staff, and the subsequent meeting with the principal. 

The record indicates that, by letter dated September 11, 2015, respondent board indicated that it had reviewed petitioners’ DASA complaint as well as respondent Rullan’s investigation of their complaint.  Based on the above, respondent board denied petitioners’ appeal, determining that respondent Rullan conducted a thorough investigation in accordance with DASA and that harassment or bullying did not occur.

On this record, I find that petitioners have failed to meet their burden of proving that respondents failed to conduct a thorough investigation or that respondents’ determination that there was no violation of school policy or DASA was arbitrary and capricious.

To the extent petitioners seek an order reprimanding respondents Mulroy and Taylor, there is no provision of the Education Law that would authorize the censure or reprimand of a board of education, its members, or district staff (see Appeal of Formato, 55 Ed Dept Rep, Decision No. 16,855; Appeal of Coleman et al., 42 id. 256, Decision No. 14,845; Appeal of Kozak, 39 id. 278, Decision No. 14,237).

To the extent petitioners seek an apology from respondent Taylor, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of L.D., 55 Ed Dept Rep, Decision No. 16,864; Appeal of Munoz-Feliciano, 54 id. Decision No. 16,773; Application of McDougall and Dacey, 42 id. 195, Decision No. 14,819; Appeal of Philips, 41 id. 10, Decision No. 14,595; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).

Although the appeal must be dismissed for the reasons stated above, one administrative matter remains. Respondents have requested that I issue a certificate of good faith pursuant to Education Law §3811(1).  Such certification is solely for the purpose of authorizing the board to indemnify respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of the powers or performance of duties as a board member, superintendent, principal or member of the teaching or supervisory staff.  It is appropriate to issue such certification unless it is established on the record that the requesting individual acted in bad faith (Appeal of T.G., 57 Ed Dept Rep, Decision No. 17,195; Application of Valentin, 56 id., Decision No. 17,014; Appeal of Berger, 56 id., Decision No. 16,996; Appeal of Fletcher and Ferguson, 55 id., Decision No. 16,901).  In view of the fact that there has been no finding that respondents acted in bad faith, I hereby certify solely for the purpose of Education Law §3811(1) that respondents are entitled to a certificate of good faith (Application of Wallace, 52 Ed Dept Rep, Decision No. 16,479; Application of Wornum, 51 id., Decision No. 16,265).

THE APPEAL IS DISMISSED.

END OF FILE