Decision No. 18,245
Appeal of J.B., on behalf of his child, from action of the Board of Education of the Lyons Central School District regarding student bullying.
Decision No. 18,245
(March 2, 2023)
Tully Rinckey, PLLC, attorneys for petitioner, Leslie A. Silva, Esq., of counsel
Ferrara Fiorenza PC, attorneys for respondent, Joseph G. Shields and Catherine E.M. Muskin, Esq., of counsel
ROSA., Commissioner.--Petitioner, on behalf of his child (the “student”), appeals actions of the Board of Education of the Lyons Central School District (“respondent”) regarding a Dignity for All Student Act (“DASA”) complaint. The appeal must be dismissed.
By letter dated January 11, 2022, petitioner requested a DASA investigation regarding the following allegations of bullying and harassment: (1) a November 2021 incident wherein a classroom teacher drew attention to the student’s Tourette syndrome symptoms in front of the class and suggested she “find church”; (2) a December 2021 incident wherein other students allegedly blocked the student from walking down the hall and called her names; and (3) a January 2022 incident wherein another student showed the student a disturbing video and slapped her on the head, knocking her hat off.
By email dated February 2, 2022, respondent’s superintendent informed petitioner that the DASA investigation was complete, and the claims were “unfounded.” This appeal ensued.
Petitioner contends that the events described above occurred and rise to the level of bullying and harassment. He argues that respondent’s determination that the DASA complaint was unfounded should be annulled and that a new investigation must be held. He specifically requests a finding that the classroom teacher’s comment was “a statutory violation” that constituted “discriminat[ion].”
Respondent argues that the appeal must be dismissed as untimely. On the merits, respondent argues that its DASA investigation complied with the law.
Petitioner’s request for a finding that the classroom teacher engaged in discrimination necessarily implicates claims arising under Section 504 of the Rehabilitation Act (“Section 504”). I lack jurisdiction to adjudicate such claims. Section 504 prohibits discrimination against individuals with disabilities who are “excluded from … participation in, … denied the benefits of, or … subjected to discrimination under any program or activity receiving Federal financial assistance,” which includes public schools (29 USC § 794 [a]). The Commissioner of Education has no authority to review Section 504 claims in an appeal under Education Law § 310 (Appeal of K.V., 61 Ed Dept Rep, Decision No. 18,067).
The remainder of the appeal must be dismissed 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). It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner (see Appeal of N.M., 59 Ed Dept Rep, Decision No. 17,688; Appeal of Cea, 58 id., Decision No. 17,483).
Here, the superintendent informed petitioner that his DASA claims were “unfounded” via email on February 2, 2022. While the superintendent received no response to this or two subsequent emails sent later that week, he avers that he spoke with petitioner about the investigation on March 2, 2022. This appeal was commenced by personal service more than 30 days after this conversation, on April 11, 2022.
Petitioner presents two explanations for the delay, neither of which are persuasive. First, petitioner argues that he was awaiting the “report” of the DASA investigation or some sort of “official notice” from respondent. Respondent, however, was not obligated to produce either document under DASA or local policy. Second, petitioner contends that counsel for respondent unreasonably declined to accept service on behalf of the school district. The practice regulations relating to appeals and other proceedings before the Commissioner require personal service of a petition (8 NYCRR 275.8 [a]). An attorney representing a school district is not required to waive this personal service requirement (Appeal of Moster and Young Advocates for Fair Education (“YAFFED”), 62 Ed Dept Rep, Decision No. 18,225). With respect to petitioner’s citation to the Civil Practice Law & Rules (CPLR), parties may not use provisions of the CPLR in lieu of applicable provisions of the Commissioner’s regulations (Appeal of J.A. and D.S., 61 Ed Dept Rep, Decision No. 18,104). Accordingly, the appeal must be dismissed as untimely (Appeal of J.L., 61 Ed Dept Rep, Decision No. 18,120; Appeal of L.N., 61 id., Decision No. 18,105).
Even if I were to address the appeal on the merits, the petition would be dismissed. An attorney investigated petitioner’s DASA claims, which included interviews with eleven witnesses. The attorney concluded that the classroom incident and cell phone video/hat slapping incidents occurred but did not rise to the level of bullying or harassment. Petitioner identifies no basis for his requested relief of an additional investigation (see Appeal of John and Jane Doe, 61 Ed Dept Rep, Decision No. 18,088; Appeal of I.I., 61 id., Decision No. 18,082; Appeal of a Student with a Disability, 59 id., Decision No. 17,859).
While no relief is warranted, I am compelled to comment on the principal incident giving rise to this appeal. The classroom teacher admitted that, in response to the student’s use of inappropriate language, he told her “to stop swearing and find church.” He further opined that Tourette syndrome “does not include swearing in context” and that she should “watch her mouth.” The teacher later apologized to the student in a hallway—at the principal’s suggestion—“for hurting her feelings.” The student was frustrated by this interaction, as she felt like the teacher apologized for her reaction, not his comments. Thereafter, a teacher colleague “check[ed] in on” the teacher, who relayed the incident loudly enough that one of the student’s classmates overheard it.
This entire course of conduct was unacceptable. The “find church” comment was patently inappropriate, whether spoken in earnest or in jest. Moreover, the classroom teacher only apologized to the student at the principal’s suggestion, and the evidence in the record suggests that he apologized for hurting the student’s feelings, not for speculating about the nature of her disability. Finally, the teacher discussed the issue with a colleague in a non-discrete manner. While discipline or a letter of reprimand would be appropriate, respondent must, at minimum, ensure that its professional development plan includes DASA training and that the classroom teacher receives such training (8 NYCRR 100.2 [dd]  [iii]).
In light of this disposition, I need not consider the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 Petitioner also complained that, in a subsequent interaction, the classroom teacher spoke with a colleague about the incident in a manner that others could overhear.
 I note that Section 504 claims alleging a denial of a free appropriate public education are subject to the Individual with Disabilities Education Act (“IDEA") exhaustion procedures (20 USC § 1415 [l]; see L.K. v Sewanhaka Cent. High Sch. Dist., 641 Fed Appx 56 [2d Cir 2016]).
 Counsel for petitioner also communicated with the attorney/investigator on March 8, 2022. This appeal was commenced more than 30 days even after this date.
 I agree with petitioner that it would be inequitable for a school district to withhold information about its DASA investigation until commencement of an administrative proceeding or lawsuit. However, the record reflects that the superintendent spoke with one of the student’s parents on both January 31 and March 2, 2022. The superintendent also made multiple attempts to communicate with the student’s parents regarding the investigation in February 2022.
 The classroom teacher claims, in his defense, “there was [no] documentation of [the student’s] disability” in school records. Student diagnoses, however, may not be contained in school records. Both the IDEA and Section 504 require parental consent prior to evaluation (Appeal of K.V., 61 Ed Dept Rep, Decision No. 18,067, at n.3). As such, school district records are not necessarily a definitive source of a student’s health or medical conditions.
 I am also concerned by a teaching assistant’s assessment, which the attorney/investigator credited, that the student’s “emotions are up and down” and that “she generates lots of drama.” This generally suggests that the student was to blame for events such as those described herein—even though the classroom teacher was solely responsible for his comments. Indeed, even respondent admits that the teacher’s comments were “ill advised.”