Decision No. 18,248
Appeal of M.E., on behalf of her child, from action of the Board of Education of the Minisink Valley Central School District regarding student bullying.
Decision No. 18,248
(March 6, 2023)
Shaw, Perelson, May & Lambert LLP, attorneys for respondent, Steven M. Latino, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Minisink Valley Central School District (“respondent”) regarding a Dignity for All Students Act (“DASA”) complaint. The appeal must be dismissed.
Petitioner’s child (the “student”) attended respondent’s high school and was, at all relevant times herein, a member of the boys’ indoor track team. He was previously selected to participate as a member of a mixed relay team at a national competition (“nationals”).
On March 4, 2022, one of the team’s coaches announced that there would be a time trial and the winner would receive a spot on the sprint medley team at nationals. As further described below, multiple witnesses indicate that the coach told the time trial participants that only those students who were not already participating in nationals were eligible. Petitioner maintains that the student was not informed of this requirement.
The student participated in the time trial and achieved first place. Since the student was already participating in the mixed relay at nationals, the coach offered the sprint relay position to the athlete who achieved second place. Petitioner thereafter filed a DASA complaint, alleging that two of the team’s coaches “intimidate[ed]” and “exclud[ed]” the student by not awarding him a position on the sprint medley team. By letter dated May 11, 2022, respondent’s DASA coordinator notified petitioner that he had investigated the allegation and determined that her allegations were unsubstantiated. This appeal ensued.
Petitioner generally asserts that the student was bullied and that respondent did not conduct a thorough DASA investigation. For relief, she asks that the DASA claim be reevaluated, that the coaches be terminated from their employment with the district, and that she receives an apology from a board member and the superintendent.
Respondent argues that petitioner has failed to demonstrate a clear legal right to the relief requested. Respondent further maintains that it adequately investigated petitioner’s DASA complaint.
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. On appeal, respondent submits evidence that the DASA coordinator interviewed fifteen individuals, including petitioner, the student, coaches, and the athletic director. Respondent submits detailed notes summarizing the statements of these witnesses. The DASA coordinator concluded that there was no evidence of bullying or harassment; at most, the coordinator found, petitioner’s child and some members of the track team misunderstood which students were eligible to fill the open spot on the sprint medley team. While unfortunate, this does not amount to bullying or harassment within the meaning of DASA. Petitioner’s evidence, which consists solely of her own assertions, is unpersuasive. Indeed, most of this evidence consists of hearsay characterizations of events that petitioner did not observe. Therefore, there is no basis in the record to conclude that respondent’s investigation was “biased” or that its determination was arbitrary or capricious (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).
I have considered petitioner’s remaining arguments and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 To the extent that petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employee to issue an apology (Appeal of I.I., 61 Ed Dept Rep, Decision No. 18,082; Appeal of X.R.O., 60 id., Decision No. 17,904).
 The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11  [d]).