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Decision No. 12,766

Appeal of a CHILD WITH A HANDICAPPING CONDITION, by his parent, from action of the City School District of the City of Albany, in relation to student attendance and denial of course credit.

Decision No. 12,766

(July 31, 1992)

Statewide Youth Advocacy, Inc., attorneys for petitioner, Betsey B. Swan, Esq., of

counsel

Stephen W. Herrick, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from respondent's denial of course credit to her son due to excessive absences. The appeal must be sustained.

The Board of Education of the City School District of the City of Albany ("respondent") has adopted a minimum attendance policy that applies to all students in grades nine through twelve. To receive course credit, the policy requires at least 85% classroom attendance. Consequently, the policy allows a maximum 28 absences in full year courses and 14 absences in half year courses. The policy provides for appeals for extenuating circumstances to a committee comprised of the school principal and an administrator and then to the superintendent of schools, who together with the board of education, renders a final decision.

Petitioner's son is fifteen years old and attends Albany High School. He is classified learning disabled. For the 1990-91 school year, he was placed in a self-contained skills development class with regular physical education. Petitioner's son was denied credit in English and physical education because of excessive absences that year in accordance with respondent's attendance policy. Although the student did not receive a final grade in English, his quarterly marks were 67, 65, 65, and 67, with a mid-year average of 66 and a final examination grade of 74. His quarterly marks in physical education were 94, 44, 73, and 81, with a mid-year average of 69. It is undisputed that respondent never gave this student a final grade or course credit due to his excessive absences, despite the fact that he had a final passing average in both English and physical education.

Petitioner contends that respondent exceeded its authority by denying her son credit when he earned passing grades in English and physical education. Although respondent does not dispute that the grades earned by the student in each marking period and on his final examination add up to a passing grade, the board argues that he was denied credit based on his failure to earn a final passing grade. In essence, respondent argues that although the student would have earned a passing grade in English and physical education, it properly denied him credit because it does not award students who exceed the number of allowable absences a final grade pursuant to its attendance policy.

A board of education may adopt a policy requiring minimum attendance for students to receive academic credit (Matter of Fitchett-Delk, 25 Ed Dept Rep 178; Matter of Laviolette, 24 id. 37; Matter of Dickerson, 20 id. 132). However, a student who earns a passing grade in a course may not be denied credit (Matter of Burns, 29 Ed Dept Rep 103; Matter of Shamon, 22 id. 428). In this case, the student actually passed his final examination in English and would have received a final passing grade in both English and physical education, were it not for the attendance policy's prohibition against calculating final grades for students who exceed the allowable number of absences. Similar to the facts in Burns, respondent's policy, as applied, is unreasonable because it resulted in an automatic loss of credit despite the fact that the student earned and received grades that, if averaged, would have constituted a final passing grade (Appeal of Shepard, 31 Ed Dept Rep 315; Matter of Burns, supra). Although respondent attempts to distinguish Burns by arguing that, unlike the student in Burns, this student did not actually earn a final passing grade, that distinction is immaterial when petitioner's son would have earned a final passing grade but for respondent's refusal to calculate it. By simply refusing to calculate the final grade respondent does not change the fact that the student had nonetheless earned a passing grade, and is thus entitled to receive course credit.

The record does not indicate that respondent factored petitioner's classroom participation into its determination of a final grade. Had respondent instituted a practice of factoring classroom participation into its determination for each quarterly marking period, it would have been consistent with prior decisions acknowledging that participation is logically related to a student's performance and properly reflected in a pupil's final grade (Appeal of Shepard, supra; Matter of Burns, supra; Matter of Shamon, supra; Application of Shannon, et al., 26 Ed Dept Rep 218).

Petitioner also contends that her son's absences were due to conduct related to his handicapping condition. Respondent argues that petitioner's claim should be dismissed for failure to exhaust administrative remedies, as her claim is, in essence, one of "extenuating circumstances".

Before addressing respondent's exhaustion argument, the legality of respondent's appeal process requires comment. In Appeal of Shepard, supra, I found facially invalid a policy that authorized a high school principal simply to discount a student's absences based on "extenuating circumstances" because the policy improperly distinguished between excused and unexcused absences. In contrast, respondent's policy is silent on whether the school principal and administrator may simply excuse certain student absences or allow students who demonstrate extenuating circumstances, opportunities to make up the work missed. The policy states:

Extenuating circumstances causing a student to be absent from class such as a prolonged illness and/or emergency surgery, where home-tutoring has not been possible, will warrant special consideration and may be appealed by a student and his/her parents if the student is under the age of eighteen. Students eighteen years of age or older may appeal without parental involvement.

To the extent respondent's appeal procedure does not excuse absences but rather accommodates a student who has a "prolonged illness" or other disability pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 USC '1400 etseq, and '504 of the Rehabilitation Act of 1973 ("Section 504"), 29 USC '794, and its effect is to trigger a referral to the CSE to determine whether there is a nexus between the absences and a disability, it is distinguishable from my decision in Appeal of Shepard, supra. An appeal process that ensures a student the opportunity to make up work missed due to a disability is consistent with the prohibition in federal law against denial of access to public school programs on account of a disability. While I believe that my interpretation is a fair reading of respondent's policy, to avoid future challenges to the validity of its policy, respondent would be well advised to be more precise in its language.

Although petitioner argues that her son's rights were violated because his absences were due to an inappropriate individualized education program, there is nothing in the record to suggest that petitioner was denied her rights under Part 200 of the Commissioner's Regulations to refer her son back to the committee on special education (CSE) to review his placement, or to request an impartial hearing to challenge a recommendation with which she disagrees.

Regarding respondent's argument that petitioner was required to exhaust administrative remedies, '310 of the Education Law provides for appeals to the Commissioner from official acts or decisions of school officers. Because respondent fails to articulate a legal mandate that requires exhaustion, I decline to dismiss this appeal on that basis. Moreover, although petitioner's claims relating to her son's handicapping condition are matters for the CSE, her claim challenging respondent's policy that denies credit for a student who has, in effect, earned passing grades, is appealable pursuant to Education Law '310. Consequently, I find that petitioner was not required to exhaust administrative remedies when challenging respondent's policy itself.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent henceforth ensure that its attendance policy is implemented in a manner consistent with this decision.

IT IS FURTHER ORDERED that, within thirty (30) days, petitioner's son be awarded a final passing grade and course credit in English and physical education for the 1990-91 school year in a manner consistent with this decision and that his educational records be modified to the extent necessary to reflect this action.

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