Appeal of STUDENTS WITH DISABILITIES, by their parent, from action of the Board of Education of the Arlington Central School District regarding the Dignity for All Students Act.

Decision No. 17,805

(January 8, 2020)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, David S. Shaw, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the Arlington Central School District (“respondent”) regarding a Dignity for All Students Act (“DASA”) complaint.  The appeal must be dismissed.

At all times relevant to this appeal, petitioner’s two children (“the students”) attended elementary school in respondent’s district and received special education services pursuant to the Individuals with Disabilities Education Act (“IDEA”).

As best as can be ascertained from the record, in or about February 2018, another parent at the students’ elementary school (“the parent”) wrote respondent a letter alleging that, during the 2016-2017 school year, the principal of the students’ elementary school (“the principal”) had asked the parent to volunteer to run an after-school, extracurricular activity at the school (“the club”).  According to petitioner, the principal “suggested” to the parent that participation in the club be limited to fourth graders so that petitioner’s children “would not be invited.”[1]

By email dated August 24, 2018, which was sent to respondent, the principal, respondent’s superintendent, and respondent’s assistant superintendent (who is one of respondent’s two DASA investigators), petitioner stated that he was “aware of a letter that was sent to [respondent] by [the parent] that contained information regarding harassment of [the students]” and asked what actions respondent had taken “to investigate and address” the allegations therein.  By email dated that same day, the superintendent told petitioner that the parent had “declined” to meet with him and the principal to discuss the allegations.  The superintendent further advised petitioner in an email dated August 28, 2018 that he had “reviewed” the parent’s letter with the principal and found the allegations therein to be “without merit.”

On September 30, 2018, petitioner submitted a DASA incident reporting form alleging that the exclusion of the students from the club constituted discrimination on the basis of disability.  By letter dated October 16, 2018, the assistant superintendent informed petitioner that she had investigated petitioner’s claims, interviewed the principal and the parent, and found “insufficient evidence to conclude that [the students] were the victims of harassment, bullying or discrimination.”  By email dated October 21, 2018, petitioner appealed this determination to respondent.  By letter dated November 14, 2018, respondent notified petitioner that, although “there [was] no mechanism [for] an appeal,” it had reviewed his October 21, 2018 email “along with the DASA records” and was “satisfied with the thoroughness of the [assistant superintendent’s] investigation and concur[red] with [her] findings.”  This appeal ensued.

Petitioner argues that the assistant superintendent “did not conduct a thorough investigation” and “could not [have been] an impartial investigator since any indication of wrong-doing ... would have also indicated an attempt of [the superintendent] to cover-up the [c]ivil [r]ights violations.”  Petitioner thus asserts that the assistant superintendent “should have recused herself and an impartial investigator should have been assigned” by the superintendent.  As relief, petitioner requests that I “require the district to complete a thorough, unbiased[] DASA investigation.”[2]

Respondent argues that petitioner fails to demonstrate a clear legal right to the relief requested or to establish facts sufficient to establish bias and, therefore, the appeal must be dismissed.  Respondent also objects to petitioner’s memorandum of law as untimely.

I will first address the procedural matters.  Petitioner submitted a reply in this matter.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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, petitioner’s memorandum of law is untimely.  Pursuant to section 276.4 of the Commissioner's regulations, petitioner was required to serve his memorandum of law within 20 days after service of the answer, or 10 days after service of the reply, whichever was later.  Respondent’s answer was served by mail on January 10, 2019 and petitioner’s reply was served by mail on January 23, 2019.  Because the answer was served upon petitioner by mail, the date of mailing and the four days subsequent thereto are excluded in the computation of the 20-day period in which petitioner was required to serve and file his memorandum of law (8 NYCRR §276.4[a]).  Petitioner’s twentieth day thus fell on Sunday, February 3, 2019, and he had until Monday, February 4, 2019 to serve his memorandum of law (8 NYCRR §275.8[b]).  Petitioner did not serve his memorandum of law until February 19, 2019.  Moreover, petitioner did not submit a written application pursuant to 8 NYCRR §276.4(a) setting forth good cause for the delay and demonstrating the necessity of the memorandum in determining the appeal.  Therefore, I have not considered petitioner’s memorandum of law.

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 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).

While petitioner may disagree with respondent’s determination that his DASA complaint was unfounded, he has not met his burden of demonstrating that such determination was arbitrary or capricious.  In her October 16, 2018 letter, the assistant superintendent reported that she interviewed both the parent who wrote the email in question and the principal and that they “corroborated the reasons that fourth grade was chosen for [the club] for the 2016-2017 school year.”  The assistant superintendent explained that the parent, who had never run the club before, “expressed some apprehension about doing so,” as “the club was starting in late November,” with a competition scheduled for January.  The assistant superintendent further indicated that, when the parent and the principal met, they determined to limit participation in the club to fourth grade students for several reasons, including that:  (1) “all the fourth grade students had participated previously,” which would “decrease[] the amount of new instruction [the parent] would have to provide”; (2) limiting “the amount of students in the club as well as the ages of the students in the club” would better suit the club’s short schedule; (3) “there were no students in fifth grade [who] were in the club and would have wanted to participate that would have been excluded”; and (4) “previous participants younger than fourth grade would have the opportunity to participate again when they reached fourth grade.”

Petitioner provides no evidence to refute the assistant superintendent’s findings.  Other than his conclusory allegation, the record is devoid of support for petitioner’s claim that the students were excluded from the club because of their disabilities.  Furthermore, petitioner submits no evidence that the assistant superintendent exhibited bias during the investigation.  Accordingly, on this record, I cannot conclude that respondent acted improperly in the conduct of its investigation.  Thus, there is no basis in the record to, as petitioner requests, order the district “to complete a thorough, unbiased [] DASA investigation.”

Additionally, petitioner has produced no evidence that the assistant superintendent exhibited bias toward him or his children or was incapable of investigating the manner in an impartial manner.  Petitioner makes a series of unsupported statements in the petition that “[t]here is a history of complaints” against the principal of respondent’s Noxon Road Elementary school and asserts that the assistant superintendent could not be impartial “since any wrong-doing by [the principal] would have also indicated an attempt of ... [the superintendent] to cover up the Civil Rights violations committed by [the principal].”  Petitioner, however, has produced no evidence to support these allegations.

While petitioner has failed to carry his burden of proof on this record and there is no evidence that respondent acted improperly, nothing herein should be construed as minimizing the serious safety, social and emotional concerns that may result from intimidation, harassment and bullying in schools.

THE APPEAL IS DIMISSED.

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