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Decision No. 12,628

Appeal of REGINA HEGARTY on behalf of her son, Kevin, from action of the Board of Education of the Garden City Union Free School District in relation to a student attendance policy.

Decision No. 12,628

(January 6, 1992)

Cullen & Dykman, Esqs., attorneys for respondent, Carl A. Laske, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the decision of the Board of Education of the Garden City Union Free School District to count her son absent from his English class on November 1, 1990 and, consistent with its attendance policy, assign him compensatory work to offset the classroom work he missed. The appeal must be dismissed.

The attendance policy at issue here provides:

When a student exceeds 7 absences in any quarter and fails to make up missed and compensatory work within a prescribed time period, the teacher will assign a grade of zero for all missed and compensatory work and will compute the quarter average numerically rather than by letter grades. Compensatory work is that given at the eighth absence to offset missed classroom time.

Petitioner's son was a junior at the Garden City Senior High School at the time this appeal was commenced. On November 1, 1990, he was absent from his English class for the eighth time. His absence was occasioned by his observance of a Roman Catholic Holy Day of Obligation, All Saints Day. Following the eighth absence, petitioner was notified in writing by her son's English teacher that he was in violation of the attendance policy and was required to complete a compensatory work assignment. Petitioner appealed to the superintendent of schools and to respondent's board of education. Her appeals were denied and this appeal ensued.

Petitioner does not challenge the validity of respondent's attendance policy. Instead, she challenges its application to her son on November 1, 1990. While petitioner concedes that her son missed his eighth English class that day, she contends that such non-attendance should be deemed a "religious observance" rather than an absence. Petitioner further contends that because the observance of religious holidays is recognized by the State Education Department, her son's absence should have been excused.

Respondent contends that petitioner's appeal should be dismissed because it was not timely. In addition, respondent claims that its school attendance policy is non-discriminatory because it does not consider the reasons for a student's absence, but simply determines whether the student was present for any given class.

An appeal to the Commissioner must be commenced within thirty days from the making of the decision or the performance of the act complained of, except upon good cause shown (8 NYCRR 275.16). Petitioner appeals from respondent's decision dated February 26, 1991. This appeal was not commenced until May 7, 1991, more than two months after the Board's determination. Petitioner does not provide any excuse for this delay, and, therefore, I must dismiss the appeal as untimely.

The appeal must also be dismissed on the merits. A student's absence from school for religious observance is a legal absence and may be excused upon written request of a parent (see, Education Law '3210[1][b]; 8 NYCRR '109.2). However, the law nevertheless recognizes school days missed for religious observance or any other reason as "absences."

A board of education may adopt a policy establishing minimum attendance requirements to achieve academic credit (Appeal of Ackert, 30 Ed Dept Rep 31; Appeal of Rivers, 27 id. 73; Appeal of Dickershaid, 26 id. 111; Matter of Fitchett-Delk, 25 id. 178; Matter of Laviolette, 24 id. 37; Matter of Dickerson, 20 id. 132). An attendance policy that recognizes the importance of classroom attendance in relation to academic performance is proper. (Matter of Burns, 29 Ed Dept Rep 103; Appeal of Dickershaid, supra). Attendance policies, however, that distinguish between excused and unexcused absences improperly impose academic sanctions as a disciplinary measure. As such, they are contrary to law (Appeal of Dickershaid, supra; Matter of Shamon 22 id., 428). Because respondent's attendance policy treats excused and unexcused absences in an identical manner, I find respondent's policy consistent with my prior decisions.

Nor is there evidence that respondent's attendance policy treats one religious holiday differently from others. To the contrary, any absence for religious observance is treated the same as any other absence, whether excused or unexcused. In addition, respondent's policy provides any student who has been absent from a class eight times the opportunity to complete make-up assignments to offset the work missed in class. Furthermore, there is no suggestion that respondent's interest in assigning make-up work is punitive. Instead, it appears to be genuinely geared toward fostering academic achievement. Notably, the policy does not result in an automatic loss of credit or reduction of grades unless the student chooses not to avail him/herself of the opportunity to make up the work missed.

Because respondent's attendance policy treats excused and unexcused absences equally without regard to the reason for the absence and extends to any student who misses eight classes a genuine opportunity to make up the work missed, I find that the policy appropriately furthers the goals of education. Having found that the policy was equally and fairly applied to petitioner's son, I find no basis to overrule the board's decision.

THE APPEAL IS DISMISSED.

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