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Decision No. 17,704

Appeal of M.F., on behalf of her child F.M., from action of the Board of Education of the City School District of the City of New Paltz regarding the Dignity for All Students Act.

Decision No. 17,704

(July 22, 2019)

Shaw, Perelson, May & Lambert, LLP, P.C., attorneys for respondent, Beth L. Sims, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of New Paltz (“respondent”) regarding a Dignity for All Students Act (“DASA”) complaint.  The appeal must be dismissed.

The record indicates that petitioner’s child (“the student”) was in second grade at one of respondent’s schools when a male classmate allegedly touched her chest.  Petitioner filed a DASA complaint regarding this incident as well as previous bullying and/or harassment allegedly perpetrated by the same male classmate against the student.  An investigator was assigned to investigate the complaint.

Following the investigation, the investigator issued a report indicating that there was insufficient evidence that the alleged behavior constituted sexual harassment or created a hostile learning environment.  Although the report did not find that bullying or harassment within the meaning of DASA occurred, it proposed a safety plan to assure the safety and wellbeing of both students.  This appeal ensued.

Petitioner argues that the DASA report is incomplete and that respondent has no DASA appeal process.  For relief, petitioner requests that the DASA report “reflect all the factual information,” that the findings be reconsidered, and that the student be monitored during all unstructured times at school.

Respondent argues that the appeal is untimely and was not properly served.  Respondent also argues that petitioner has failed to meet her burden of proving that the report’s findings were arbitrary and capricious.  Finally, respondent argues that petitioner’s claims for relief are declaratory in nature and outside the jurisdiction of the Commissioner in an appeal pursuant to Education Law §310.

The appeal must be dismissed for lack of proper service.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  Pleadings may be served by any person not a party to the appeal over the age of 18 (8 NYCRR §275.8[a]).

Petitioner’s affidavit of service indicates that the petition was served by a non-party to this proceeding upon Dusti Callo, the district clerk, on November 5, 2018, at 1 Eugene L. Brown Drive, New Paltz, New York.  Respondent submitted an affidavit from Ms. Callo stating that she was personally served by petitioner on that date.  In the affidavit, Ms. Callo sets forth a detailed explanation of the manner in which the petition was served on November 5, 2018.  Specifically, Ms. Callo asserts:

On Monday November 5, 2018, in the afternoon, a woman I believed and/or recognized to be the parent mother, [M.F.], entered the District office and informed me that she needed to drop off a sealed envelope and departed the District Office.

Ms. Callo further explains that she accepted the sealed envelope from petitioner, which contained the petition in this matter.  Petitioner did not submit a reply or otherwise respond to these allegations.

Weighing the bare allegations contained in petitioner’s affidavit of service against the detailed assertions posed by respondent, I find that respondent has sufficiently demonstrated that petitioner herself served the petition in contravention of section 275.8 of the Commissioner’s regulations, and that the appeal must be dismissed on that basis (Appeal of White, 58 Ed Dept Rep, Decision No. 17,521; Appeal of J.M. and R.C., 58 id., Decision No. 17,470; Appeal of A.F., 56 id., Decision No. 17,030; Appeal of Prusak, 54 id., Decision No. 16,659).

Although the appeal must be dismissed for lack of proper service, I note that petitioner has not identified any legal basis for her argument that respondent must have a DASA appeal process.  There is no explicit provision of DASA which requires an appeal at the local level (Appeal of R.E., 56 Ed Dept Rep, Decision No. 17,003).

In light of this disposition, I need not address the parties’ remaining contentions.  However, I note that nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by harassment and bullying in public schools.