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Decision No. 12,775

Appeal of NORMA S., on behalf of her son MICHAEL, from action of the Board of Education of the Batavia City School District, regarding student grades.

Decision No. 12,775

(August 5, 1992)

Stakel, Suttell, Found, Rybak & Earl, Esqs., attorneys for respondent, Daniel A. Rybak, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from the decision of the Board of Education of the Batavia City School District ("respondent") affirming a decision to issue her son a failing grade in M.P. Wood I. The appeal must be dismissed.

At the time this appeal was commenced, petitioner's son was a tenth grade student at Batavia High School. During his first semester, he enrolled in M.P. Wood I. In February 1990, petitioner was notified that her son had failed the course because he had not completed his final project. It is not disputed that completion of a final project was a course requirement. After petitioner met with the school principal to review her son's failing grade, the student was given additional time to complete his project. However, even with the additional time, the student failed to complete the project and consequently did not receive credit for the course. The principal reviewed the matter and upheld the failing grade. The board of education affirmed. This appeal ensued.

Petitioner alleges that her son completed the final project for M.P. Wood I and should, therefore, receive a passing grade. Alternatively, she argues that the teacher sabotaged her son's efforts to pass the course, violated school policies by failing to notify her that her son was failing, and neglected to provide him with adequate instruction. Petitioner also alleges that the superintendent, the principal, the teacher and several members of the school board were rude in response to informal efforts to resolve the matter. Petitioner also contends that her son is learning disabled with an attention deficit disorder and that respondent failed to provide appropriate services to him. Petitioner asks that I annul her son's failing grade and order the district to issue a passing grade, formally reprimand the superintendent, the principal and the teacher, initiate an investigation, and guarantee her son adequate help from staff at Batavia High School in the future. In addition, she seeks an order to enable her son to attend a nearby school without payment of tuition should respondent fail to provide her son an adequate education. Respondent contends that its actions were neither arbitrary, capricious nor unreasonable.

According to the record, petitioner's son was identified learning disabled in August 1980 and was placed in a special education class until the end of sixth grade. Although the record is unclear, it appears that petitioner rejected respondent's offer to place her son in a resource room the following year. Thereafter, he apparently received no special education services until eighth grade. According to respondent, by the end of eighth grade, he was declassified but received, nonetheless, a resource room and declassification support services (in response to petitioner's insistence that her son continued to need special education). Apparently, although Commissioner's regulations only provide for declassification services for one year (8 NYCRR 100.2[u]), respondent continued to provide petitioner's son with the services through tenth grade. It is undisputed that when petitioner requested that respondent's committee on special education (CSE) review her son's failing grade in his woodworking course, the CSE declined, stating it lacked jurisdiction.

Despite petitioner's contention that her son successfully completed his final project the second time, I find no evidence to support her contention. With regard to student grades, I will not substitute my judgment for that of a board of education, absent a clear showing that the board's determination was arbitrary, capricious or unreasonable (Appeal of Wilcox, 31 Ed Dept Rep 116; Appeal of Richardson, 29 id. 70). Upon the record before me, I find no basis to substitute my judgment. The record indicates that this student had ample opportunity to complete his final project and receive credit for the course. He, nonetheless, failed to do so and petitioner has not established that her son ever completed his final project. Instead, she seems to suggest that, as a handicapped child, her son was denied the right to free appropriate public education. The record indicates that the teacher sent to petitioner a March 19, 1990 guidance report advising her that

when I asked . . .[your son] to cut a board to size on the tablesaw he could not accomplish it nor did he have any idea on how to go about doing it. . . My observation at this point is that. . . [your son] enjoys helping someone do a task . . . but he just isn't able to perform shop operations himself....

At that point, the teacher further advised petitioner that it was best if her son attempt the course again the following year. In the absence of any evidence to the contrary, I find no basis to set aside respondent's determination to uphold the teacher's decision regarding this student's grade.

Although there is no basis for substituting my judgment, I find the teacher's observations significant in light of this student's long history of learning problems. Notably, even though petitioner's son was declassified in 1988, he was reviewed annually by the CSE and received declassification support services for three years thereafter (8 NYCRR 100.2[u]). A review of this student's last IEP demonstrates that he continued to have organizational problems after he was declassified. Given the nature of this student's problems, the fact that he experienced difficulty completing his independent woodshop project is understandable. Nonetheless, there is no indication that petitioner sought the CSE's involvement regarding her son's difficulties in his course until after he failed the second time. Unfortunately, by that time, it was too late to offer him any accommodations to which he may have been entitled because of his handicapping condition.

Although petitioner contends that her son is learning disabled, the record indicates that he was declassified in 1988. In this appeal, petitioner seems to contest the recommendation of respondent's CSE and suggests that her son's failure is due to the lack of an appropriate education. However, there is no evidence that petitioner either requested an impartial hearing pursuant to Education Law '4404 or was deprived notice of her right to challenge at an impartial hearing any recommendation of the CSE. If petitioner was dissatisfied with the educational placement of her son, or its underlying decision to declassify him, her avenue of redress was to request an impartial hearing. Since petitioner should have requested an impartial hearing before initiating an appeal and failed to do so, I am constrained to dismiss petitioner's claims regarding her son's need for special education for failing to exhaust administrative remedies (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 104).

I have considered petitioner's other claims and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE