Decision No. 18,082
Appeal of I.I., on behalf of her child, from action of the Board of Education of the Washingtonville Central School District regarding bullying.
Decision No. 18,082
January 31, 2022
Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Beth L. Harris, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the Board of Education of the Washingtonville Central School District (“respondent”) that her child (the “student”) was not subjected to bullying or harassment in violation of the Dignity for All Students Act (“DASA”; Education Law, Article 2). The appeal must be dismissed.
The student attends respondent’s high school. As a sophomore, he played on the boys’ junior varsity soccer team. He tried out for the varsity soccer team the following year but was not selected.
During his senior year (2021-2022), the student again tried out for respondent’s varsity soccer team and was not selected. Subsequently, the student filed a complaint alleging violations of DASA and Title VI of the Civil Rights Act of 1964 (“Title VI”). Both complaints alleged that the coach’s decision to not select the student for the varsity team for his senior year amounted to racial discrimination. Respondent investigated, concluding that there was no evidence to support a finding of bullying, harassment, or discrimination. This appeal ensued.
Petitioner challenges respondent’s determination, alleging that the coach engaged in bullying and harassment by failing to select the student for the varsity team. For relief, petitioner seeks a “re-examination” of her DASA/Title VI complaint and an apology from the school district.
Respondent argues that the appeal must be dismissed as untimely and for failure to join the coach, whom it argues is a necessary party. Respondent also argues that the Commissioner lacks jurisdiction over petitioner’s alleged violation of Title VI. On the merits, respondent contends that petitioner failed to demonstrate a clear legal right to the relief requested.
First, I must address several preliminary matters. Petitioner filed 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, 275.14). A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised 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.
Next, respondent contends that the appeal must be dismissed, in part as untimely. An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914). Respondent determined that the student did not make the varsity soccer team on August 26, 2021, more than 30 days prior to commencement of this appeal. Therefore, although petitioner’s challenge to the DASA/Title VI determination is timely, any claims that relate solely to the August 2021 decision cannot be considered.
Moreover, to the extent petitioner challenges the Title VI officer’s conclusion or alleges a violation of Title VI, an appeal pursuant to Education Law § 310 is not the proper forum to adjudicate such claims (Appeal of V.S., 58 Ed Dept Rep, Decision No. 17,508; Appeal of A.M., 56 id., Decision No. 16,974; Appeal of Cartagena, 43 id. 267, Decision No. 14,991). Therefore, to the extent that petitioner seeks relief based on violations of Title VI, such claims are dismissed.
Turning to the merits, DASA prohibits harassment and bullying in public schools. It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 ; 8 NYCRR 100.2 [kk]  [ix]). Such a hostile environment may be created where bullying or harassment:
(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; or
(b) reasonably causes or would reasonably be expected to cause a student to fear for his or her physical safety; or
(c) reasonably causes or would reasonably be expected to cause physical injury or emotional harm to a student ....
A district’s DASA determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864). In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).
Petitioner has not established that respondent’s determination was arbitrary or capricious. Respondent’s DASA coordinator and its Title VI compliance officer issued a detailed report explaining their findings and conclusions. The record also contains the DASA coordinator’s investigative notes, which reveal that she interviewed numerous individuals—including petitioner, the student, and three coaches (one of whom was the coach about whom petitioner complains).
On appeal, petitioner largely reiterates arguments that respondent considered and rejected below. For example, in response to petitioner’s complaint that the student was the “only senior cut this year,” respondent determined that “other seniors, as well as siblings, have been cut from the [varsity soccer] team” in prior years. Additionally, respondent found that the student did not receive a post-tryout evaluation because he was the sole senior to not be selected to the team; as respondent explains, “historical[ly] ... senior[s] ... have not been given additional comments as part of their evaluation.” Petitioner has provided no evidence to contradict respondent’s findings.
The only claim which respondent did not specifically address in its decision is that the coach did not “acknowledge  ... [the student] when crossing paths in the hallways and on the soccer fields.” Petitioner has produced no evidence that this conduct was motivated by racial animus or created a “hostile environment” within the meaning of Education Law § 11 ). As such, she has failed to meet her burden of proof.
Finally, the Commissioner lacks the authority to order a board of education or school district employee to issue an apology (Appeal of Munoz-Feliciano, 54 Ed Dept Rep, Decision No. 16,773; Appeal of Lloyd, 39 id. 537, Decision No. 14,303).
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 I disagree with respondent’s contention that the coach is a necessary party in this instance (compare Appeal of M.D., 58 Ed Dept Rep, Decision No. 17,591 [appeal of DASA determination dismissed for failure to join coach where petition sought specific relief against coach, including his termination]).
 The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11  [d]).
 All three coaches opined that the student lacked the skills to play on the varsity team.
 Petitioner also alleges, in support of her claim of disparate treatment, “that there were players who didn’t complete the full tryout, yet still made the team ....” Petitioner is precluded from making new arguments that she did not present to respondent below (see Appeal of B.D., 61 Ed Dept Rep, Decision No. 18,016; Appeal of J.K., 60 id., Decision No. 17,967). Nevertheless, respondent explains that it has a consistent practice of allowing “[s]tudents who were unable to complete all the try-out sessions due to excused illness, injury or quarantine” to make up the sessions or allowing the coach to make a decision based upon the sessions she or he observed.
 According to the DASA coordinator’s notes, the coach indicated in an interview “that he does not see [the student] often, but that he keeps his head down and keeps walking when he [does] ....”