Decision No. 12,588

(September 27, 1991)

Charles E. Crandall, III, Esq., attorney for petitioner

Scolaro, Shulman, Cohen, Lawler and Burstein, Esqs., attorneys for respondents, Henry F. Sobota, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondents' determinations requiring her daughter to take a make-up examination. The appeal must be dismissed.

During the 1990-91 school year, petitioner's daughter was a tenth grade student in respondent Herkimer Central School District (the district). She was enrolled in one of several Regents Social Studies classes taught by respondent Steele. On November 6, 1990, respondent Steele announced to each of his classes that he would be giving a unit test the following day. The district, however, had scheduled a mandatory assembly for the first few periods of that school day. Consequently, respondent Steele informed his morning students, including petitioner's daughter, that they would have to take the examination after school on November 7.

Believing that it was improper to conduct an examination after school, petitioner's daughter raised the issue with the school principal. The parties disagree regarding the substance of the discussion that ensued. The record indicates, however, that the principal agreed that scheduling the examination after school had been an error. The principal apparently told petitioner's daughter that she would not be disciplined if she failed to appear for the examination after school on November 7, and that he would pursue the matter further with respondent Steele. Although the examination was given after school, as scheduled, petitioner's daughter and four other students left school at the regular dismissal time, without taking the exam.

The present appeal arises from the parties' dispute regarding the substance of the conversation between petitioner's daughter and the school principal and whether, in agreeing that students did not have to take the exam after school, the principal excused students from the exam altogether, or merely until they could take a make-up test during the regular school day. The record indicates that one of the five students who failed to appear for the exam after school arranged with respondent Steele to take a make-up examination the following day. The remaining four students, including petitioner's daughter, did not attempt to schedule a make-up exam.

At the beginning of the 1990-91 school year, respondent Steele informed his students that any failure to complete a unit examination would result in the deduction of 4 points from the student's report card average. At an open house on November 19, 1990, petitioner learned from respondent Steele that her daughter's quarterly grade would be reduced from 81 to 77, in light of the student's failure to take the examination in question. Petitioner wrote to the school principal on November 21, 1990, arguing that such a grade reduction violated the principal's previous directive that students would not be disciplined for failing to appear for the examination after school. The principal replied on December 20, 1990, indicating that petitioner's daughter was not entitled to have the points restored to her average, because she had not made up the exam.

On January 2, 1991, petitioner appealed the principal's decision to respondent Moorhead, the superintendent of schools. By letter dated January 18, 1991, respondent Moorhead concluded that the four students who had not made up the examination would be required to take a make-up exam. Consequently, respondent Moorhead directed respondent Steele to offer the students an opportunity to make up the test. Respondent Steele then provided each of the four students with information regarding the proposed date of a make-up exam, and the material to be covered. Three of the students indicated that they would avail themselves of this opportunity. Petitioner's daughter, however, refused to take the make-up exam.

Petitioner asks me to restore her daughter's grade for the first quarter of 1990 to 81. I do not find that petitioner is entitled to such relief. Petitioner has submitted no evidence supporting her version of the conversation between her daughter and the principal. The district, on the other hand, has submitted the principal's sworn affidavit, wherein he states that he never told the student that she would not have to make up the examination. It would have been unreasonable, moreover, for respondents to have exempted petitioner's daughter from completing this course requirement (see, e.g., Appeal of Augustine, 30 Ed Dept Rep 13). The record indicates that respondent Steele reminded his students on November 9, 1990, of their obligations to schedule make-up tests for any examinations missed during the first quarter. As indicated, petitioner's daughter made no effort to fulfill this academic requirement. Grades for the first quarter of 1990 were based on the results of six unit exams. There is no legitimate reason for calculating this student's grade with only five exams, when every other member of the class was required to submit six. This is especially so, as petitioner's daughter was given ample opportunity to make up the examination in question.

The Commissioner of Education will not substitute his judgment regarding the determination of a student's grade, absent a clear showing that the determination was arbitrary, capricious or unreasonable (Appeal of Richardson, 29 Ed Dept Rep 70, 72; Appeal of Bittner, 25 Ed Dept Rep 314). There has been no such showing on the record before me. I note, in any event, that restoring the student's first quarter grade to 81 would have no effect on her final grade in the course. Considering the student's grades for the remaining three quarters of the school year, she would have received a final course grade of 80 whether her first quarter grade was 77 or 81.

Petitioner also asks for an order prohibiting respondents from conducting examinations at times other than during the regular school day. Although such a practice is discouraged, petitioner has not demonstrated that the order she seeks is compelled by the Education Law. On the record before me, therefore, I will not issue such an order.

THE APPEAL IS DISMISSED.

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