Petitioner in this appeal to the New York State Commissioner of Education challenged the decision of the Board of Education concerning alleged bullying and harassment of a student by a teacher employed by the Board and sought to have the teacher dismissed because of the teacher alleged to having bullied and harassed a student. The Commissioner ruled that the appeal must be dismissed and the application denied.
The Commissioner's decision stated the school district’s Dignity Act coordinator had investigated the alleged wrongdoing and determined that there was insufficient evidence of a Dignity Act violation having occurred. An appeal to school district was denied by letter and this appeal to the Commissioner filed.
The School District contended that the appeal should be dismissed because of a number of procedural errors made by Petitioner, because the Petitioner failed to meet her burden of proof, and because the appeal had become moot as the teacher resigned had from the position at the end of the relevant school year.
Addressing procedural omissions alleged by the School District, the Commissioner said Petitioner’s application for removal must be denied for lack of the required notice, explaining §277.1 (b) of the Commissioner’s regulations requires "specific notice" with respect to removal applications pursuant to Education Law §306,* which is distinct from the notice required under §275.11(a) for appeals filed pursuant to Education Law §310 and proper notice is required to secure jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application".
In addition, the Commissioner observed that "a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied."
As the Petitioner 's removal application lacked the required notice the Commissioner denied the Petitioner's application seeking removal of the teacher.
Addressing the merits of Petitioner's appeal, the Commissioner said the Dignity Act defines “harassment” and “bullying,” as “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” and 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 .... **
Further, the Commissioner's decision states that a district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious and in an appeal to the Commissioner the 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.
The Commissioner determined that the record demonstrated that the School District appropriately responded to Dignity Act complaint submitted by Petitioner and the School District's Dignity Act coordinator "promptly investigated by interviewing the student and reviewing the complaint and supporting materials" and ultimately determined that the complaint “was not based on harassment, bullying, or discrimination as defined in [the Dignity Act], but rather [Petitioner’s] conflict with [the teacher’s] general teaching/advising style.”
With respect to the Petitioner’s evidence, the Commissioner said it consisted "of hearsay statements and [the Petitioner's] subjective interpretation of correspondence from the teacher".
Weighing the probative value of the parties’ submissions in the record, the Commissioner found that Petitioner [1] "failed to prove that the school district's decision was arbitrary or capricious" and the Petitioner had [2] "not identified any relief that can be awarded at this juncture as the teacher has resigned" and dismissed Petitioner's appeal.
* The Commissioner observed that Education Law §306 only applies to “school officers,” and not school employees such as a teacher.
** In a footnote to the Commissioner's decision the Commissioner indicated that a "fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment" (See Education Law §11 [7] [d]).
Click HERE to access this decision of the Commissioner posted on the Internet.