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Decision No. 12,651

Appeal of BETH A. SHEPARD, on behalf of her daughter Beth, from action of the Board of Education of the Hilton Central School District, relating to attendance.

Decision No. 12,651

(February 25, 1992)

Statewide Youth Advocacy, Inc., attorney for petitioner, Jennifer A. Strus, Esq., of counsel

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, attorneys for respondent, Daniel Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from a decision of respondent Board of Education of the Hilton Central School District upholding the superintendent's finding that her daughter was guilty of insubordination for violating its attendance policy and preventing her from taking final examinations. The appeal must be sustained in part.

Petitioner's daughter was in the ninth grade at Hilton High School at the time this appeal was commenced. Respondent's attendance policy requires 90% minimum attendance for a student to remain in class and receive course credit. In other words, a student may not exceed 18 absences in a full year course. According to respondent, petitioner's daughter was absent a total of 26 days during the school year in question, including several days when she was suspended from school. Prior to excluding the student from her regular school program for the remainder of the school year, the superintendent scheduled a hearing pursuant to '3214(3)(c) of the Education Law, to consider whether the student had violated respondent's attendance policy, and whether her actions constituted insubordination. The hearing was held on April 18, 1991. Following the hearing, the superintendent found the student guilty of insubordination, denied her credit in each of her courses and suspended her for the remainder of the school year. Because the student was below compulsory school age, the superintendent also ordered home tutoring.

Petitioner appealed the superintendent's decision to respondent Board of Education. Although respondent affirmed the superintendent's decision to deny course credit, the board concluded that home tutoring did not provide an appropriate education for a student under the compulsory school age. Accordingly, respondent directed that the student be placed in the high school's alternative education program. Petitioner rejected that placement and the student received home tutoring instead. This appeal ensued.

Petitioner contends that respondent improperly counted as absences days when her daughter was suspended from school and not provided alternative instruction. In addition, petitioner contends that respondent cannot deny her daughter credit for courses she was passing even if she exceeded the permissible number of absences. Petitioner also argues that respondent erred by suspending her daughter from school in response to her attendance problem.

Respondent contends that petitioner's daughter was not actually suspended from instruction during the days she was absent because she received all of her class work and was allowed to take her quizzes or tests; that petitioner's daughter had not earned final grades in her classes and could, therefore, be denied credit; and that the suspension was not a disciplinary sanction since the student was offered alternative instruction.

A school district may not count days when a student is suspended from school as absences unless the student is offered alternative instruction and fails to attend (Appeal of Ackert, 30 Ed Dept Rep 31). The obligation to provide alternative education applies to all suspensions, not only suspensions in excess of five days (Turner v Kowalski, 49 AD2d 943). Although this student was given class work and opportunities to make up tests on the days she was suspended from school, there is no indication in the record that instruction was also provided. Alternative instruction need not match in every respect the instructional program previously offered to a pupil, however, a program that offers little or no instruction does not constitute adequate alternative instruction (Matter of Malpica, 20 Ed Dept Rep 365). Without evidence that the district offered alternative instruction during this student's suspension, she may not be considered absent on those days (Appeal of Ackert, supra). Respondent, therefore, erred in counting the student absent on days when she was suspended from school without providing alternative instruction. Moreover, even if the district did not provide adequate alternative instruction, assuming that the student completed the work assigned to her during her suspension from class, respondent would have no basis for marking her absent.

While the record indicates some disagreement between the parties regarding the actual number of absences, it appears that once the dates of suspension from school are discounted, the student had only 18 absences in at least 3 of her classes -- an insufficient number to sustain a violation of respondent's attendance policy. Of the 24 absences listed in General Math, 6 resulted from suspensions (5 out of school and 1 in school); of the 25 absences in Spanish IA, 7 resulted from suspensions; and of the 24 absences in Introduction to Occupations, 6 were the result of suspensions. In Science and English the student was absent in excess of the maximum absences. The record is inconclusive regarding the student's absences in Global Studies.

As previous decisions recognize, it is logically inconsistent to deny credit for classes where a student has earned passing grades (Matter of Burns, 29 Ed Dept Rep 103; Matter of Shamon, 22 id. 428). However, the facts in this case are distinguishable because the student had not earned final passing grades at the time the policy was imposed. In this case, respondent does not seek to reduce grades already earned, or deny the student a final grade. Instead, respondent simply stopped grading the student after determining that she had violated its attendance policy. Assuming that the student could not have earned a final passing grade without earning a passing grade for the last marking period or on her final examination, the denial of credit would be based, at a minimum, on an incomplete grade and would have, therefore, been proper.

Petitioner also challenges respondent's finding that her daughter was insubordinate because she violated the district's attendance policy. Section 3214(3) of the Education Law authorizes a superintendent to suspend a student from school for insubordination. Truancy, however, is an academic problem not properly sanctioned by suspension (Matter of Ackert, supra). To address problems of truancy, a board of education is only authorized to establish special classes or schools that provide the same number of hours and days of attendance as required for all students under the compulsory school age (Education Law '3214[1] and [2]). Notably, in this case respondent directed that the student, once suspended, be placed in its high school's alternative program. While petitioner objects to respondent's alternative program in her reply, stating that it "consisted of warehousing students in one room with no individual instruction whatsoever", she offers no proof as to the content or adequacy of the program. Petitioner not only failed to provide sufficient evidence of the inadequacy of respondent's alternative program, she refused to send her daughter there. Accordingly, even though I find respondent's suspension of this student for truancy improper, I cannot find that she was prejudiced since there is nothing in the record to establish that the alternative educational program offered was inadequate as a matter of law.

Finally, I note that respondent's attendance policy is invalid on its face, in that it appears to excuse certain absences, by treating college visits, or music lessons as the equivalent of regular attendance. Additionally, the policy authorizes the high school principal to discount a student's absences based on extenuating circumstances. The underlying rationale of attendance policies that deny credit or reduce grades for non-attendance is based on a recognition of the vital role classroom attendance and participation play in academic achievement. An attendance policy that distinguishes between excused and unexcused absences is arbitrary since in either case the pupil has missed the opportunity for classroom participation (Matter of Dickershaid, 26 Ed Dept Rep 111; Matter of Shamon, supra; Matter of Gibbons, 22 id. 134). Therefore, I find respondent's policy arbitrary because it creates exceptions for certain student absences.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's attendance policy be modified in accordance with this decision and that respondent provide me with a copy of the policy as modified within thirty (30) days of receipt of this decision.

IT IS FURTHER ORDERED that within ten (10) school days of this decision petitioner's daughter be graded for the final marking period when she received home tutoring, be offered the opportunity to make up any final examinations given in the six classes for which she was disallowed credit at a mutually agreed upon time and be awarded credit for each course in which she earns a final passing grade.

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