Appeal of R.I., on behalf of her child M.V., from action of the Board of Education of the South Huntington Union Free School District regarding bullying.

Decision No. 17,758

(September 25, 2019)

McGaw, Alventosa, & Zajac, attorneys for petitioner, Neil L. Coscio, Esq., of counsel

Ingerman Smith, LLP, attorneys for respondent, Christopher Venator, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the actions of the Board of Education of the South Huntington Union Free School District (“respondent”) regarding its response to allegations that her daughter (“the student”) was subjected to bullying in violation of the Dignity for All Students Act (“DASA”).  The appeal must be dismissed.

The record reflects that the student was the victim of bullying and harassment on or about April 20, 2018, during her first grade year.  Specifically, while riding on one of respondent’s school buses, a male student who was then in second grade touched the student in an inappropriate manner.  The incident was reported by school officials to the police, who, along with child protective services (“CPS”), conducted an investigation.  The record does not reflect the outcome of the police and CPS investigations; respondent indicates that it is unaware of any charges, sanctions, or restrictions against the male student that resulted therefrom.

On April 23, 2019, respondent suspended the male student from riding the bus for three days and assigned him to a different bus route based upon his conduct on April 20, 2019.

According to the record, the student and the male student both reside within the attendance zone for respondent’s Maplewood Intermediate School (“Maplewood”).  Both students were scheduled to attend Maplewood for the 2019-2020 school year.

In the summer of 2019, petitioner requested that the male student be transferred to a different school, respondent’s Birchwood Intermediate School (“Birchwood”).  By letter dated June 11, 2019, respondent’s superintendent explained that he did “not have the ability to change the other child’s school based upon the circumstances of this situation.”  The superintendent also indicated that he had followed up with the police and CPS and that neither organization was “able to report a conclusive case investigation.”  The superintendent further stated that respondent was prepared to offer the student counseling, regular monitoring, separate transportation, and separate class placement from the male student at Maplewood.

Following a meeting with petitioner, by letter dated June 14, 2019, respondent’s assistant superintendent for student services stated that respondent would allow the student to attend Birchwood for the 2019-2020 school year, although it was outside of her attendance zone, and that the student would be offered counseling and regular monitoring to assist in her transition.  The assistant superintendent further indicated that the district would provide transportation between the student’s residence and Birchwood.

In a letter dated June 28, 2019, petitioner indicated that she wanted the student to attend Maplewood and asserted that it would be unfair to require her child, the victim of bullying and harassment, to change schools instead of the perpetrator.  This appeal ensued.

Petitioner argues that respondent’s determination not to transfer the male student to Birchwood is arbitrary and capricious.  Petitioner argues that the student should not have to attend the same school as the male student and that transitioning to Birchwood would stigmatize the student and increase her anxiety.  Petitioner asserts that respondent’s decision violates DASA because it discriminates against the student as a victim.  Petitioner seeks a directive requiring respondent to transfer the male student to Birchwood.[1]

Respondent argues that the appeal must be dismissed for failure to join the male student or his parents, who are necessary parties.  Respondent also argues that petitioner has failed to establish that its determination was arbitrary and capricious.  Respondent takes the position that, if it had transferred the male student to Birchwood, such action would have been arbitrary and capricious.

First, I will address the procedural issues.  Additional affidavits, exhibits and other supporting papers may only be submitted with the prior 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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  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 (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  Accordingly, while I have reviewed petitioner’s submission dated September 5, 2019, I have not considered any new allegations or claims raised therein.

The appeal must 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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  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 Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).

Here, the male student is a necessary party to the instant appeal, as he would be affected by the relief petitioner seeks – transfer to another intermediate school.  Therefore, petitioner’s claims must be dismissed for failure to join the male student (Appeal of A.L. and H.L., 56 Ed Dept Rep, Decision No. 17,089).  To the extent that petitioner argues that the appeal should not be dismissed on this basis because she did not or does not know the identity of the male student, this does not negate the fact that it would be unfair to adjudicate this matter in the male student’s absence.  Moreover, petitioner has not explained any steps that she or her counsel have taken to ascertain the identity of the male student.[2]

Even if the appeal were not dismissed for failure to join a necessary party, it would 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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, I cannot find that respondent acted in an arbitrary or capricious manner in denying petitioner’s request to transfer the male student to Birchwood.  In response to the report of bullying and harassment on April 20, 2018, respondent investigated and referred the matter to appropriate authorities.  Respondent also offered appropriate supports to the student and petitioner, including counseling, monitoring, separate transportation and classrooms, and even for petitioner to be transferred to a different school outside of the student’s attendance zone, Birchwood, and transportation thereto.  Therefore, even if I were to reach the merits of petitioner’s claim, petitioner has not met her burden of proof.

Although the appeal must be dismissed on procedural grounds, nothing herein should be construed as minimizing the serious safety, social, and emotional issues raised by harassment and bullying in public schools.

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

THE APPEAL IS DISMISSED.

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