Matter of E.L and La Cima Charter School

IN THE MATTER

OF

THE COMPLAINT OF E***** L***** CONCERNING LA CIMA CHARTER SCHOOL

     DECISION

_____________________________

E***** L***** (“complainant”), parent of a child (“student”) who attended La Cima Charter School (“La Cima” or “the school”), filed a complaint against the school regarding its utilization and enforcement of its bullying and disciplinary policies with respect to complainant and the student.  The complaint must be sustained in part.

Education Law §2855(4) provides that any individual or group may bring to a charter school’s board of trustees a complaint which alleges a violation of Education Law Article 56, the charter school’s charter, or any other provision of law relating to the charter school’s management or operation.  Thereafter, if the complainant subsequently determines that the charter school’s board did not adequately address the complaint, the complainant may present the complaint to the charter school’s charter entity, which must investigate and respond.  If the complainant subsequently determines that the charter entity has not adequately addressed the complaint, he or she may present that complaint to the Board of Regents (“Regents”), which shall investigate, respond, and issue appropriate remedial orders.  Section 3.16 of the Rules of the Regents delegates to the Commissioner of Education the authority to receive, investigate, and respond to complaints, and to issue appropriate remedial orders.

Complainant submitted an Education Law §2855(4) complaint to the school’s board of trustees (“board”) alleging that the student was bullied by her classmates; that the school had not taken appropriate action in accordance with the Dignity for All Students Act (Education Law Article 2) (“DASA”) to investigate and address the bullying; that the school did not employ its restorative justice practices; that the school improperly met with and/or interviewed the student without notifying complainant; and that complainant’s access to the school was improperly limited.  After receiving the board’s determination, complainant submitted the complaint to the Regents, the school’s charter entity.  Absent from the complaint to the Regents is any direct challenge to any disciplinary action taken against the student as a result of the above-outlined investigation into the student’s alleged actions.

There is no basis in the record to disturb the board’s determination that the school properly investigated and responded to complainant’s allegations of bullying.  In her complaint to the board dated November 19, 2018, complainant cites several instances of alleged bullying or harassment of the student in September, October, and November of 2018.  Two of the incidents involved physical altercations between complainant’s daughter and other students; and complainant and the school disagree about whether complainant’s daughter or the other students instigated the altercations.  To this end, much of the complaint concerns arguments over which version of the facts must be accepted and, in her complaint, complainant alleges that her version of the facts concerning the student’s actions are more credible than what the board eventually determined after its review and investigation of the facts.  In this regard, I will not substitute my judgment for that of the school with respect to findings of fact which rest on the credibility of witnesses when there is no evidence that the determination of credibility is inconsistent with the facts, or that the decision made was arbitrary and capricious.  The record here indicates that the school performed an investigation into complainant’s allegations, which included interviewing multiple witnesses, and putting together a “deep dive” document relating to its findings.  While complainant may disagree with the determinations made by school, and the board’s acceptance of such, the evidence presented on the record indicates that the board’s decision was not arbitrary or capricious, and I find no reason to substitute my judgment for the school.

In any case, it appears from the record that the school or its staff investigated each incident and took appropriate actions to address the incidents.  In some instances, the school had staff monitor the behavior of the students involved or separated the students, and no further incidents occurred between the two students involved.  In response to the two physical altercations, the school primarily responded by applying the school’s restorative justice practices, meeting with the students involved to discuss their behavior, and holding a parent conference with the parents of the students involved.  In addition, in response to the physical altercation on November 7, 2018, the record indicates that the school imposed in-school suspensions on students who participated in the fighting.  While complainant disagrees with the measures taken by the school, she has not met her burden of proving that the school failed to take actions reasonably calculated to end the harassment or bullying, eliminate any hostile environment, create a more positive school culture and climate, prevent recurrence of the behavior, and ensure the safety of the students involved, as required by Education Law §13(1)(e).  While complainant asserts that the school violated its restorative justice policy, she has not proven that the school acted in violation of its charter, Education Law Article 56, or any other provision of law relating to the school’s management or operation.

With respect to complainant’s assertion that the school violated the law by meeting with the student without notifying complainant,[1] I note that, to the extent that complainant argues that it was improper to meet with or interview the student in the absence of complainant and/or complainant’s designee, neither the provisions of the Education Law nor constitutional due process considerations require that a parent be present when a student is questioned by school personnel about possible infractions of school rules (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of M.W. and K.W., 55 id., Decision No. 16,903; Appeal of D.H., 47 id. 77, Decision No. 15,631).

Complainant also asserts that she was improperly denied access to the school.  Education Law §2855(4), which provides for charter school complaints, states in pertinent part that “[a]ny individual or group may bring a complaint to the board of trustees of a charter school alleging a violation of the provisions of this Article, the charter, or any other provision of law relating to the management or operation of the charter school” (emphasis added).  Complainant has not cited any provision of law or the school’s charter that was violated by the school’s alleged actions.  To the contrary, the record indicates that, on two occasions, complainant failed to follow the directions of school staff to sign in with the security officer, as required by the school’s policy.  On one occasion, she directly confronted students and threatened that she would report them to police.  On the other, she entered a classroom without signing in and refused sign in or leave the classroom.  Under the circumstances, La Cima appropriately limited complainant’s access to the school.

It does appear, however, that the school has failed to fully comply with DASA.  La Cima could not produce a DASA policy when requested, did not identify a DASA coordinator in school documents, and admitted that the DASA coordinator identified for purposes of State reporting is not the same person that families are expected to approach with reports of bullying and harassment.  The school could not produce written DASA reports for each allegation of bullying and harassment at issue, and the school’s determination that certain occurrences could not be classified as bullying were based, in part, on reasons that do not, in and of themselves, preclude a bullying determination (e.g. that the incident was a first-time occurrence).  By failing to develop policies and procedures that address all of the requirements of DASA, the school has violated the Education Law and its charter.

Finally, petitioner’s request for various forms of monetary relief must be denied as beyond my authority to grant.  There is no statute that authorizes the Regents, or the Commissioner on behalf of the Regents, to award monetary damages or costs or reimbursements in a charter school complaint, just as there is no authority for the Commissioner to grant monetary relief in an appeal under Education Law §310 (see Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

 

I have reviewed complainant’s remaining contentions and find them to be without merit.

 

THE COMPLAINT IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that, within thirty days of the date of this decision, the school shall submit, to the New York State Education Department’s Charter School Office, policies, procedures, and guidelines as required by the Dignity for All Students Act for review and approval consistent with the terms of this decision.

IN WITNESS WHEREOF, I, Betty A. Rosa, Interim Commissioner of Education of the State of New York, for and on behalf of the State Education Department, do hereunto set my hand and affix the seal of the State Education Department, at the City of Albany, this       day of                2020.

Interim Commissioner of Education

 

[1] I note again, as set forth above, that the complaint to the charter school’s board (as well as the board’s determination) was regarding the investigation in response to allegations of bullying.  Complainant has not challenged any discipline actually imposed on the student as a result of the at-issue incident(s).