Decision No. 18,257
Appeal of G.M., on behalf of her child, from action of the Board of Education of the Pawling Central School District regarding student bullying.
Decision No. 18,257
(March 22, 2023)
Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine A. Lanchantin, Esq., of counsel
ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Pawling 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 elementary school during the events described herein. On October 5, 2022, petitioner filed a DASA complaint alleging that two students (students “A” and “B”) engaged in the following conduct: (1) student A hit the student with his lunch bag, threw a chair at the student’s leg, and kicked her shoulder; (2) student A hit another classmate in the face; (3) student A hit the student in the arm with his lunch bag because she did not give him her drink; (4) an unnamed school employee directed the student to deliver student A’s backpack and lunch bag to him following his removal from the classroom; and (5) student B called the student a derogatory name. Petitioner acknowledged the existence of school “safety plans” but alleged that such plans had been ineffective.
By letter dated October 20, 2022, respondent informed petitioner of its determination that the incidents of which she complained, while substantiated, did not rise to the level of a DASA violation. This appeal ensued.
Petitioner challenges respondent’s determination, alleging that the conduct constituted bullying and harassment within the meaning of DASA. For relief, petitioner requests that respondent conduct an additional investigation of her complaint and issue a new determination.
Respondent contends that petitioner failed to state a claim and meet her burden of proof. Respondent contends that students A and B received appropriate consequences for violating the district’s code of conduct, but that their behavior did not rise to the level of bullying or harassment within the meaning of DASA.
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 be reversed only 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).
The record demonstrates that respondent appropriately responded to petitioner’s allegations of bullying and harassment. The principal promptly investigated each of the alleged incidents and addressed the misconduct of students A and B. Respondent also took remedial action to protect the student in school and prevent future bullying or harassment, including the implementation of a “stay away” agreement between the student and student A. The principal further explained the inappropriateness of the derogatory word to student B, who thereafter apologized to the student. Thus, petitioner has failed to meet her burden of proving that respondent acted in an arbitrary or capricious manner or that any additional relief is warranted (see Appeal of M.E., 62 Ed Dept Rep, Decision No. 18,248; Appeal of John and Jane Doe, 61 id., Decision No. 18,088; Appeal of I.I., 61 id., Decision No. 18,082).
To the extent they are not addressed herein, petitioner’s remaining argument are without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 While the determination indicates that the conduct was “unfounded,” the principal clarifies on appeal that, consistent with the evidence in the record, this was a typographical error.
 In my discretion, I have accepted respondent’s late memorandum of law.
 The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11  [d]).
 Petitioner argues that the derogatory word constituted sex-based harassment because her child is female, student B is male, and the word in question “is almost exclusively used ... toward  females.” However, as the principal indicated, “[n]o evidence exists that [student B’s] behavior was motivated” by the intent to target a “protected class.” Instead, it appears that student B, who was six years old, thoughtlessly “repeated a word he [had] heard used [in] a video game.”