Decision No. 18,229
Appeal of JOHN DOE, on behalf of his child, from action of JOHN T. HILLIS, as superintendent of the Oxford Academy and Central School District, and BRIAN COLLIER, as primary school principal of the Oxford Academy and Central School District, regarding allegations of child abuse in an educational setting.
Decision No. 18,229
(January 18, 2023)
Tully Rinckey, PLLC, attorneys for petitioners, Leslie A. Silva and Sabastian S. Piedmont, Esqs., of counsel
Hogan, Sarzynski, Lynch, DeWind & Gregory, LLP, attorneys for respondent, Cameron B. Daniels, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals the determination of the superintendent of schools for the Board of Education of the Oxford Academy and Central School District (“Oxford Academy”) that his child (“the student”) was not subjected to child abuse in an educational setting. Petitioner names the principal of the student’s school in connection therewith. The appeal must be dismissed.
During the 2021-22 school year, the student attended third grade at Oxford Academy. The record reflects that the student engaged in aggressive and unsafe behaviors on multiple occasions throughout the school year. This included assaults on staff members and throwing desks and chairs.
On January 31, 2022, counsel for petitioner alleged that the student had been subjected to child abuse in an educational setting. Respondent thereafter appointed a former school administrator to investigate this claim (“investigator”).
In a letter to petitioner dated March 4, 2022, the superintendent concluded that the student had not been subjected to corporal punishment. The superintendent included a detailed report from the investigator. Based on this report and other evidence, the superintendent concluded that district staff made physical contact with the student only for safety reasons and that any physical interactions were used after the student refused to comply with instructions “and continue[d] to be a danger to himself or others.” This appeal ensued.
Petitioner argues that the principal illegally or improperly restrained the student on eight occasions. He further claims that staff did not receive adequate training in emergency interventions, as required by 8 NYCRR 200.22 (d) (3). Petitioner seeks a determination that the superintendent’s determination was arbitrary or capricious.
Respondents contend that district employees utilized “reasonable physical force” in all circumstances, as permitted by State regulations. Respondents further argue that any physical restraints were employed under emergency circumstances and were used to protect the health and safety of the student and others.
Initially, any claims arising under the Individuals with Disabilities Education Act (“IDEA”), Section 504 of the Rehabilitation Act (“Section 504”), or Education Law Article 89 must be dismissed for lack of jurisdiction. These laws provide parents with the right to an impartial hearing regarding a complaint with respect to any matter relating to the identification, evaluation, or educational placement of a child, or the provision of a free appropriate public education (“FAPE”) to such child (20 USC § 1415; 34 CFR 104.36; Education Law § 4404 ). Claims brought to enforce such rights must be addressed through the due process provisions of the IDEA and Education Law § 4404 or the State complaint procedure outlined in section 200.5 of the Commissioner’s regulations; such claims may not be addressed in an appeal brought pursuant to Education Law § 310 (Appeal of a Student with a Disability, 52 Ed Dept Rep, Decision No. 16,375; Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232; Appeal of a Student with a Disability, 46 id. 258, Decision No. 15,500). Therefore, I lack jurisdiction to address any claimed violations of 8 NYCRR 200.22. However, to the extent petitioner alleges that respondents failed to meet their obligations under Article 23-B of the Education Law, this claim is addressed below (see Appeal of John and Jane Doe, 61 Ed Dept Rep, Decision No. 18,094; Appeal of M.B. and M.B., 56 id., Decision No. 17,044).
Education Law § 1125 (1) defines child abuse to include the following acts committed in an educational setting by an employee or volunteer against a child:
(a) intentionally or recklessly inflicting physical injury, serious physical injury or death, or
(b) intentionally or recklessly engaging in conduct which creates a substantial risk of such physical injury, serious physical injury or death ....
State regulations generally prohibit the use of corporal punishment but permit “the use of reasonable physical force … to restrain or remove a pupil whose behavior is interfering with the orderly exercise and performance of school or school district functions ... if that pupil has refused to comply with a request to refrain from further disruptive acts” (8 NYCRR 19.5 [a] ). The regulation clarifies that such force should be used only when “alternative procedures and methods not involving the use of physical force cannot reasonably be employed....”
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 met his burden of proving that the superintendent’s determination was arbitrary or capricious (Appeal of John and Jane Doe, 61 Ed Dept Rep, Decision No. 18,094; Appeal of M.B. and M.B., 56 id., Decision No. 17,044; Appeal of S.S., 42 id. 273, Decision No. 14,852). In his report, the investigator reviewed district records, interviewed 10 employees who worked with the student, and reviewed video evidence. He found that the principal possessed appropriate training in de-escalation techniques and that he used physical restraint only when necessary to protect the student or others.
Petitioner offers no evidence to contradict the report’s findings. He merely states, in a conclusory manner, that “[s]ince … February 3, 2020, [the student] has been physically restrained by Principal Collier on at least eight … separate occasions.” This statement is unpersuasive, as it offers no explanation of the context in which the physical contact occurred. As such, I find that the record supports the superintendent’s determination that any physical restraints were reasonably employed to protect the student or others.
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 his or her 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 school district officer acted in bad faith (Application of Brentwood Youth Activities, Inc. (BYA), 59 Ed Dept Rep, Decision No. 17,821; Appeal of R.T. and E.T., 57 Ed Dept Rep, Decision No. 17,340). In view of this decision, and 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).
To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 Section 504 claims alleging a denial of a free appropriate public education are subject to IDEA’s exhaustion procedures (20 USC § 1415 [l]; see L.K. v Sewanhaka Cent. High Sch. Dist., 641 Fed Appx 56 [2d Cir 2016]).
 The record reflects that the student received accommodations under Section 504 of the Rehabilitation Act during the 2021-22 school year. Respondent’s committee on special education was “in the process of considering” the student’s eligibility under the IDEA at the time of this appeal.
 Petitioner’s characterization of the conduct at issue in this appeal as “corporal punishment” is inaccurate. State regulations define corporal punishment as “any act of physical force upon a pupil for the purpose of punishing that pupil” (8 NYCRR 19.5 [a]  [emphasis added]). It is undisputed that school district staff made physical contact with the student to prevent physical harm to the student or others. This implicates respondent’s obligations under Article 23-B of the Education Law (see Formal Opinion of Counsel, No. 241, available at http://www.counsel.nysed.gov/sites/counsel/files/241.pdf).
 The report noted that the principal did not immediately inform petitioner that the student had been physically restrained on the same date as the restraint. However, the investigator found this to be a deviation from the principal’s usual practice. In that respect, I note that Education Law § 4401 (9), as amended on August 17, 2022, requires each school district to develop a procedure to notify the parents of students with disabilities on the same day a physical or mechanical restraint is used on the student or the student is placed in a time-out room.
 Counsel for petitioner initially suggested that a restraint on January 20, 2022 caused bruising to the student. However, this was disproven by a medical evaluation on January 21, 2021, in which the evaluating physician concluded that the “bruise [was] older than yesterday” (i.e., January 20, 2022).