Responding to DASA Complaints

The Dignity for All Students Act (“DASA”) has been the subject of recent decisions issued by the New York State Commissioner of Education (the “Commissioner”). DASA prohibits bullying and harassment of students in public schools and at school activities; it is non-disciplinary. Under DASA, bullying and/or harassment is defined as “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying” that may result, or may reasonably be expected to result in, physical injury or emotional harm to a student. 8 NYCRR §100.2(kk). As recently highlighted by the Commissioner, it is important to remember that “[b]ullying and harassment can be a single incident or a series of related incidents. Appeal of M.C. and T.H., 64 Ed Dept, Decision No. 18550 quoting 8 NYCRR 100.2(kk)(1)(ix).

Under DASA, when a complaint is lodged, an investigation must be undertaken promptly. This investigation should be conducted by a DASA coordinator, or another person designated by the DASA coordinator if the DASA coordinator is unavailable. The investigation should typically include interviewing the person who made the complaint, the alleged victim in the complaint, any witnesses to the alleged bullying or harassment, and the alleged bully/harasser. Once the investigation is completed, the investigator will determine if the allegation of bullying/harassment is founded or unfounded. The parties (the alleged victim and the alleged bully/harasser) should then be informed of the determination. Importantly, even if the determination is that the complaint is unfounded, the district may still want to take steps to address the claim. For example, in addition to, or in place of a disciplinary consequence, which may be warranted where there is a violation of the Code of Conduct, it may be appropriate to address a situation using restorative meetings or educational presentations to classes, grades, or even the entire student body.

A DASA determination may be appealed to the Commissioner. The Commissioner has held that “[a] district’s Dignity Act determination will only be reversed upon a showing that it was arbitrary or capricious”. Appeal of E.G., 64 Ed Dept, Decision No. 18,551. The party bringing the appeal bears the burden of proof. In reviewing a DASA determination, the Commissioner typically will scrutinize the district’s response to the DASA complaint, particularly to see if the district responded in accordance with the DASA law and regulations, as well as its own policies. Significant factors may include the district’s response time in relation to the complaint (was the complaint promptly investigated) as well as the thoroughness of the investigation. In addition, even where the Commissioner determines the district’s determination regarding the DASA complaint to be arbitrary or capricious, the district’s effort to positively address the school culture in response to the DASA complaint may be viewed by the Commissioner as a mitigating factor. In a recent decision, the Commissioner held that, while the district erred in finding that a complaint was unfounded, “no relief is warranted… as respondent has implemented, or attempted to implement, appropriate remedies to address the situation between the student and classmate”. Appeal of M.C. and T.H., 64 Ed Dept, Decision No. 18550. In that case, the district had recommended counseling for the student and proposed a safety plan. The Commissioner held that “although respondent erred in its conclusion, it nevertheless responded to the bullying and harassment reported by petitioners and proposed appropriate supports in connection therewith”. Id.

If you have any questions about DASA, the investigation process, or potential solutions and training to address issues relating to bullying and harassment, please contact our office.