Appeal alleging a violation of the New York State's Dignity for All Students Act supported only by hearsay evidence and subjective interpretations dismissed

The Dignity for All Students Act* [Dignity Act] seeks to provide the State’s public elementary and secondary school students with a safe and supportive environment free from discrimination, intimidation, taunting, harassment, and bullying on school property, a school bus and/or at a school function. 

In this appeal to the Commissioner of Education the Petitioner alleged that the teacher acted unprofessionally toward a student when she accused a certain student and others of cheating, and “intentionally ignored” the student thereafter.  For relief, Petitioner asked that the Commissioner find the teacher had violated the Dignity Act as well as her “removal” from employment with the school district.

Addressing the merits of the Petitioner's appeal, the Commissioner noted hat a district’s Dignity Act determination [1] will only be reversed upon a showing that it was arbitrary or capricious and [2] 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.

Finding that the record indicated 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]", the Commissioner found that Petitioner's conflict was with "the teacher’s general teaching/advising style” and the Petitioner’s evidence concerning the matter consisted of "hearsay statements and his subjective interpretation of the  correspondence [received] from the teacher".  

Weighing the probative value of the parties’ respective submissions, the Commissioner found that Petitioner "failed to prove that school district’s Dignity Act determination was arbitrary or capricious" nor had the Petitioner identified any relief that could have been awarded were he to have prevailed as the teacher had earlier resigned from her position with the school district.

* The Dignity Act amended the New York State Education Law by creating a new Article 2 – Dignity for All Students and, in addition, amended Section 801-a of such law addressing instruction in civility, citizenship, and character education and amended Section 2801 of said law by requiring Boards of Education to include language addressing The Dignity Act in their respective codes of conduct.

The text of the Commissioner's decision, Decision of the Commissioner of Education No. 18,551, is set out below and is posted on the Internet.

Decision No. 18,551

Appeal of E.G., on behalf of his child, from action of the Board of Education of the Whitehall Central School District regarding student bullying and application for the removal of a teacher.

Decision No. 18,551

(February 14, 2025)

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy and Victoria A. Mosley, Esqs., of counsel

ROSA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Whitehall Central School District (“respondent”) regarding bullying and harassment.  He also seeks the removal of a teacher in connection therewith.  The appeal must be dismissed and the application denied.

Petitioner’s child (the “student”) attended respondent’s high school at all times relevant to this appeal.  On May 8, 2024, petitioner filed a Dignity for All Students Act (“Dignity Act”) complaint alleging that the student’s English teacher engaged in bullying and harassment during the 2023-2024 school year.  The district’s Dignity Act coordinator proceeded to investigate.  By letter dated May 31, 2024, the coordinator determined that there was insufficient evidence of a Dignity Act violation.  An appeal to respondent was denied by letter dated June 20, 2024; this appeal ensued.

Petitioner alleges that the teacher acted unprofessionally toward the student when she accused her (and others) of cheating, tossed a packet of materials on to the student’s desk, and “intentionally ignored” the student thereafter.  For relief, petitioner requests a determination that the teacher violated the Dignity Act as well as her “removal” from employment with the district.

Respondent contends that the appeal should be dismissed on myriad procedural grounds.  Alternatively, respondent contends that petitioner failed to meet her burden of proof.  Respondent additionally argues that the application for removal is moot insofar as the teacher resigned her position within respondent’s district at the end of the 2023-2024 school year.

Initially, petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures 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 (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).[1]

Turning to the merits, the Dignity Act 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 [7]; 8 NYCRR 100.2 [kk] [1] [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 ....[2]

A district’s Dignity Act 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 New York State Commissioner of Education, 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 Dignity Act complaint.  Upon receipt thereof, respondent’s Dignity Act coordinator promptly investigated by interviewing the student and reviewing the complaint and supporting materials.  After doing so, the coordinator 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.”  Petitioner’s evidence, by contrast, consists of hearsay statements and his subjective interpretation of correspondence from the teacher.  Weighing the probative value of the parties’ submissions, I find that petitioner has failed to prove that respondent’s Dignity Act determination was arbitrary or capricious (see Appeal of G.M., 62 Ed Dept Rep, Decision No. 18,257; Appeal of M.E., 62 id., Decision No. 18,248; Appeal of John and Jane Doe, 61 id., Decision No. 18,088).  Moreover, petitioners have not identified any relief that can be awarded at this juncture as the teacher has resigned.

To the extent they are not addressed herein, petitioner’s remaining arguments are without merit.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

END OF FILE

 

---

[1] Additionally, Education Law § 306 only applies to “school officers,” not school employees such as the teacher (Application of Passer, 57 Ed Dept Rep, Decision No. 17,274). 

[2] The fourth and final definition, subsection (d), concerns the circumstances under which off-campus conduct may constitute bullying or harassment (Education Law § 11 [7] [d]). 

The Law and the Emoji - Part 2

N.B.: The trial court's decision was appealed. Below is Professor Goldman's analysis of the appellate court's decision, which included a dissenting opinion.

Thumbs-Up Emoji Formed Binding Sales Contract in Canada–Achter v. South West Terminal

December 20, 2024 · by Eric Goldman · in Emojis, Licensing/Contracts

This is the instant-classic lawsuit involving a Saskatchewan farmer who text-messaged a “thumbs-up” emoji in response to an offer to buy his flax. The lower court found that the seller’s thumbs-up emoji constituted assent to the buyer’s offer and awarded the buyer $82k (Canadian) in damages. Prior blog post. On appeal, the Saskatchewan Court of Appeals affirmed the decision on a 2-1 vote.

Note: as usual for Canadian opinions, this is a long read–220 paragraphs, approximately 28k words.

The Majority Opinion

For the most part, the majority opinion endorses the lower court decision, repeatedly saying (in essence) that the lower court judge got it right (or least didn’t make any obvious errors). The lower court judge should feel good about his work. That judge was surely dealing with an emoji interpretation case for his first time, and operates in a community not known for being at the cutting edge of technology law. Nevertheless, the lower court judge wrote a strong and thoughtful opinion that held up on appeal. At the same time, the majority opinion also reflects the standards for appellate review in Canada, which provide some deference to the lower court ruling.

I especially liked the majority’s framing that emoji interpretation isn’t really a new skill for common law courts:

human communication is often subtle. Words, phrases, gestures and symbols may carry more than one meaning. All of this gives rise to the potential for ambiguity and uncertainty and, indeed, litigation. The law has long accommodated for this, and courts are often called upon to determine the legal import of a multitude of communication types between individuals. The fact that, in this case, one part of the communication comprised an emoji simply provides a modern twist to this otherwise rather unremarkable observation

In other words, we need to be careful about overassuming emoji exceptionalism. When I do emoji law trainings for judges, I remind them that emojis are just another form of non-textual communication, and all of the techniques the judges routinely use to interpret human communication are likely to work with emojis as well.

(The most significant emoji exceptionism is the cross-platform depiction diversity issue I discuss in my paper, but that hasn’t generated much activity in court).

The seller argued that he had used the thumbs-up emoji to acknowledge receipt of the buyer’s text, not to assent to it. The majority says that is theoretically possible:

The judge would have committed error had he approached his decision by suggesting that a thumbs up emoji invariably means “I agree” or always bears something akin to that meaning. But he did not do that…

It is irrelevant that a thumbs up emoji may be used in other contexts to communicate other messages or ideas. What matters is the use to which it was put by Mr. Achter in the eyes of an objective observer

Nevertheless, the majority says that the seller chose this particular emoji in this particular context:

ALC submits that, if Mr. Achter had simply intended to acknowledge receipt of a draft contract from Mr. Mickleborough, “it is hard to imagine what other emoji would have been more apt”. However, the premise of this submission is that Mr. Achter was limited to communicating by way of emojis. It was Mr. Achter who chose to use the thumbs up emoji, when in the past he had used words like “looks good”, “ok” and “yup” in a similar situation to form binding contracts.

As a result, the emoji functioned as a signature:

The thumbs up emoji expressed Mr. Achter’s agreement to the contract and the act of sending the emoji with the metadata identified, or authenticated, Mr. Achter as the person expressing that agreement with that intention…

There may be some validity to the proposition that, taken together, the thumbs up emoji with the metadata that accompanied Mr. Achter’s text message could not result in a signature if his text message had not been sent in response to one from Mr. Mickleborough or if there had not been a history of authenticated communications between the parties. However, I do not need to decide if these hypothetical changes to the fact pattern would affect the result of this case.

While Canadian law resembles US law about electronic signatures, the emoji-as-signature issue may have been an easier call in the US courts. I think that the E-Sign and UETA laws in the US make it entirely clear that the emoji usage in this context would satisfy their requirements as a signature.

It appears the seller argued that a signature needs to be a newly created artifact, like how a wet-signature (ink on paper) creates something that didn’t previously exist. The majority does not agree:

I can agree with ALC that Mr. Achter did not create the thumbs up emoji for the purposes of signing contracts. However, the same can be said about the letters that together make up a person’s name. In either case, what is controlling is the use to which the thumbs up emoji or those letters are put.

The majority summarizes its conclusion:

Mr. Achter’s use of the thumbs up emoji communicated his agreement to the terms of the contract proposed by Mr. Mickleborough with the expectation that ALC would be held to it. Because Mr. Achter sent that emoji in a text message from his personal cellphone, there was electronic data that he knew would identify him as the maker of the mark and communicate his agreement to the contract. His text message therefore signed the contract as surely as if he had printed the photograph that Mr. Mickleborough had sent to him and then written his name on that print copy and returned it to Mr. Mickleborough.

The Dissenting Opinion

The dissent’s opinion wasn’t easy to read. The judge used a lot of Latin and seemingly hid his takeaway point. He says he “would take judicial notice of the fact that a thumbs-up emoji can signify approval or agreement.” However, he doesn’t think the signature requirement was satisfied because, I believe, the emoji would have needed to be affixed to the contract draft, not communicated in a message separated from the contract text.

This makes me wonder how the dissenting judge would interpret a multi-email negotiation where there is no single email defining the parties’ terms. Would the judge take the position that a contract never formed because there was no “signature” to the contract when the emails collectively would have to constitute the “contract”?

The dissent seems especially odd in light of the parties’ course of dealing. This buyer and seller had previously come to contract terms when the buyer sent a form contract and the seller replied with a brief text (e.g., “OK”) functioning as the signature to that contract. If the parties decide that’s how they would like to communicate with each other, the court should respect that.

Implications

I think this opinion reinforces some lessons we took away from the lower court ruling:

• Emoji law sits on top of longstanding legal principles, many of which the courts can apply without any exceptionalism.
• Using emojis as a communicative tool can have major legal significance. People often misperceive emojis as some second-tier form of communication with no legal implications of their usage. This case showed that a single emoji has substantial consequences–in this case, $82k (CAN). As usual, we are responsible for the words–and emojis–we choose.
• Emojis need to be interpreted in context. Emojis derive meaning from the content preceding them in a conversation, as do all other forms of human communication. Further, in this case, the parties’ course of dealing informed the emoji’s meaning. If the seller and buyer had never dealt with each other, the court might not have been as confident that the thumbs-up was assent and not just acknowledgment. But in the context of a pattern of similar dealings, it was more obvious that the emoji was assent.
• The fact that emojis have multiple meanings isn’t unusual. Many aspects of human communication develop multiple meanings, including slang. And that fact alone doesn’t mean that emojis are fatally ambiguous. Courts are very good at interpreting potentially ambiguous communications, whether that’s words, emojis, or anything else.

Case Citation: Achter Land & Cattle Ltd. v South West Terminal Ltd., 2024 SKCA 115.

The Law and the Emoji

A single 👍 emoji contained in an email that the sender alleged was simply intended to indicate “got it” resulted in a legal battle involving the payment of about $62,000 for certain goods and raised the question "Can an emoji seal a contract?".  

Source: The following was posted on the Internet at:

 https://99percentinvisible.org/?p=45069) (50) 😅⚖️ - YouTube

"In 2021, a Canadian farmer named Chris Achter responded to a buyer’s grain contract with a simple 👍 emoji. What followed wasn’t just a misunderstanding—it was a legal showdown that captured global attention.

"Achter, based in Saskatchewan, had a long-standing business relationship with the buyer. They often finalized grain deals over text. That year, when the buyer sent over a standard flax contract, Achter responded with a thumbs up. Months later, as drought conditions drove up flax prices, the buyer expected a delivery. None came.

"The buyer sued.

"The central question? Does a thumbs up emoji constitute a digital signature?

"A judge ruled that, yes, it did.

"According to Eric Goldman, a law professor at Santa Clara University, Achter later claimed the emoji was merely an acknowledgment—not acceptance. But the court disagreed, calling the emoji a “nontraditional but valid” form of agreement. The court awarded the buyer over $60,000 in damages.

"Goldman put it bluntly: “That single thumbs up emoji was worth tens of thousands of dollars.” 👍

"Goldman believes this approach should be the norm. “It’s exactly what we would hope the courts would do,” he said."

New York State Comptroller Thomas P. DiNapoli releases statement addressing the 2025-2026 New York State budget

"After extended deliberation, the Governor and Legislature have finalized a state budget.

"Major policy changes in the budget that will be felt across the state include the most significant changes to the Foundation Aid formula since its inception, long-awaited relief to small businesses by paying off the Unemployment Insurance Trust Fund loan, and reduced personal income tax rates for lower- and middle-income families starting in 2026. Other new funding initiatives include expanding access to community college for adult learners and preserving access to child care. The budget also fully funds the Metropolitan Transportation Authority’s $68.4 billion 2025-2029 capital plan, reflecting a major investment in transportation infrastructure in the New York City Metropolitan area.

"The budget includes significant state-funded increases in education, health and other spending, and authorizes an additional $23 billion in public authority backdoor borrowing. General aid for local governments is largely flat, despite growing signs of fiscal strain at the local level as pandemic aid has ended and costs continue to rise. Deep uncertainty surrounding tariffs, the economy and actions in Washington casts a long shadow on this budget.

"Market volatility and declining business and consumer confidence may upend the state’s revenue projections and increase the already sizeable outyear budget gaps. Actions by Congress may also have a large impact on the state’s finances in the months ahead, and may jeopardize many of the critical safety net programs that New Yorkers rely on and that have always been predominantly funded by the federal government. Federal changes being considered would shift significant costs for Medicaid, food benefits and other programs to states. While the state has a record $8.75 billion in its statutory reserves, these funds are needed to protect against economic and fiscal disruptions, and the state does not have the resources to backfill federal reductions on an ongoing basis.

"The time to develop a strategy and structural reforms is before a crisis, yet this budget includes no serious cost containment measures, particularly in Medicaid, where it is most needed. In these uncertain and disruptive times, the Legislature gave extraordinary powers to the Executive to make mid-year spending cuts in the event of budget imbalance. However, this provision creates further uncertainty for those that depend on state aid.

"The full financial and economic implications of this budget will be clearer when the Financial Plan is released, and close monitoring will be needed to ensure that the state is on a sustainable path and able to navigate the challenges ahead."

The Comptroller also noted that his office "will continue to carefully monitor economic conditions and the state’s cash position and release an analysis of the enacted budget in the coming weeks.”

###

Volunteer firefighter terminated after knowingly making false statements on a medical questionnaire regarding his physical condition

A volunteer firefighter was found guilty of disciplinary charges filed against him pursuant to Section 75 of the New York State Civil Service Law alleging misconduct and insubordination. 

The penalty imposed: terminated of the Petitioner's membership as a volunteer firefighter as the result of the firefighter's having "knowingly made false statements on a medical questionnaire regarding his physical condition."

The Appellate Division, citing Matter of Rutkunas v Stout, 8 NY3d 897 and other decisions, held that the firefighter's action demonstrated a disregard for the safety of other firefighters and the general public. 

In sustaining the imposing of  the penalty of termination, the Appellate Division  opined that the penalty imposed was "not so disproportionate to the offense as to be shocking to one's sense of fairness".

The text of Appellate Division, Second Department, is set out below:

Matter of Correra v Millwood Fire Dist.

2025 NY Slip Op 02587

Decided on April 30, 2025

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 30, 2025 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
MARK C. DILLON, J.P.
FRANCESCA E. CONNOLLY
LINDA CHRISTOPHER
BARRY E. WARHIT, JJ.

2022-06969
(Index No. 59594/22)

[*1]In the Matter of Robert Correra, petitioner,

v

Millwood Fire District, et al., respondents.

Gould & Berg, LLP, White Plains, NY (Jane Bilus Gould of counsel), for petitioner.

Pinsky Law Group, LLC, Syracuse, NY (Bradley M. Pinsky of counsel), for respondents.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78 to review a determination of the Millwood Fire District dated January 17, 2022. The determination adopted the findings of a hearing officer dated January 5, 2022, made after a hearing pursuant to Civil Service Law § 75, that the petitioner was guilty of a charge of misconduct and a charge of misconduct and insubordination, and terminated the petitioner's membership as a volunteer firefighter with the Millwood Fire District.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

The petitioner served as a volunteer firefighter with the respondent Millwood Fire District (hereinafter the District) beginning in 2003. Following a physical examination in 2020, which was required by the District to clear members for operational positions, the District suspended the petitioner's operational privileges and charged him with misconduct. The District alleged, inter alia, that the petitioner provided false information regarding his failure to disclose his designation by the Workers' Compensation Board as "permanently, partially disabled" on a form in connection with the 2020 physical examination. A disciplinary hearing pursuant to Civil Service Law § 75 was held on October 28, 2021. At the hearing, the District brought a second charge against the petitioner, alleging misconduct and insubordination, for improperly obtaining a physical examination while his operational privileges were suspended and for failing to provide a medical provider with the current job performance requirements for a firefighter.

In a report and recommendation dated January 5, 2022, the hearing officer found the petitioner guilty of both charges and recommended termination of the petitioner's membership as a volunteer firefighter with the District. On January 17, 2022, the District adopted the findings of the hearing officer and terminated the petitioner's membership. The petitioner thereafter commenced this proceeding pursuant to CPLR article 78 to review the District's determination, and the Supreme Court transferred the proceeding to this Court pursuant to CPLR 7803(g).

Generally, "judicial review of an administrative determination made after a hearing required by law, and at which evidence was taken, is limited to whether that determination is supported by substantial evidence" (Matter of Lipani v New York State Div. of Human Rights, 56 [*2]AD3d 560, 560; see CPLR 7803[4]). Substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180; see Matter of Ciganik v New York City Off. of Admin. Trials & Hearings, 224 AD3d 898, 899). Here, substantial evidence in the record supports the determination that the petitioner was guilty of misconduct and insubordination (see Matter of Guarnieri v County of Rockland, 226 AD3d 1018, 1019-1020; Matter of Sekul v City of Poughkeepsie, 195 AD3d 622, 625). The record demonstrates, among other things, that the petitioner knowingly provided false answers on his medical questionnaire regarding his failure to disclose his designation as permanently, partially disabled by the Workers' Compensation Board and improperly obtained a medical examination when his operational privileges were suspended and failed to provide the medical provider with the current job performance requirements for a firefighter.

In light of the fact that the petitioner, inter alia, knowingly made false statements on a medical questionnaire regarding his physical condition, which, under the circumstances, demonstrated a disregard for the safety of other firefighters and the general public, the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Rutkunas v Stout, 8 NY3d 897, 898; Matter of Kurot v East Rockaway Fire Dept., 61 AD3d 760, 761; Matter of Loscuito v Scoppetta, 50 AD3d 905, 906).

The petitioner's remaining contentions are without merit.

Accordingly, we confirm the determination, deny the petition, and dismiss the proceeding on the merits.

DILLON, J.P., CONNOLLY, CHRISTOPHER and WARHIT, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court