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Decision No. 12,813

Appeal of JUDITH VITELLO, on behalf of her son Jason, from action of the Board of Education of the West Irondequoit Central School District and Dr. Joseph R. Sproule, Superintendent.

Decision No. 12,813

(September 25, 1992)

The Legal Aid Society, attorneys for petitioner, Patti W. Moss, Esq., of counsel

Mousaw, Vigdor, Reeves, Heilbronner & Kroll, Esqs., attorneys for respondents, Daniel R. Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondents' decision to deny petitioner's son admission to summer school to take a Participation in Government class and credit for an English 12 class that he attended at the East High Evening School Program in the Rochester City School District. She requests that I order respondents to permit Jason to take Participation in Government in summer school commencing July 1, 1992, and also order respondents to extend credit for English 12. Petitioner further requests that I review respondents' truancy policy. The appeal must be sustained in part.

Petitioner's son was enrolled as a 12th grade student in the West Irondequoit Central School District during the 1991-92 school year. The record indicates that he needed the following credits to obtain a local diploma: English 11 (1 credit), English 12 (1 credit) and Participation in Government (1/2 credit).

Prior to the start of the school year, the principal of West Irondequoit High School permitted petitioner's son to enroll in the English 12 class at the East High Evening School Program in the Rochester City School District. The principal informed petitioner's son that credit for the English 12 class was conditioned upon, among other things, his passing all of his courses at West Irondequoit High School.

During the course of the school year, petitioner's son withdrew from the English 11 class, which he was failing at the time. On April 8, 1992 petitioner's son received a report card indicating that he was failing the Participation in Government class. The report card noted that he had failed to turn in major assignments and was frequently absent. On April 17, 1992 petitioner met with the school guidance counselor who informed her that her son might also be dropped from that class because of excessive truancy in that class, and that if he was dropped, he would not be able to take the class during summer school. On May 13, 1992 petitioner was again informed that her son was failing the Participation in Government class and would not be recommended for summer school unless he did more work in the course. On May 18, 1992 he was dropped from the Participation in Government class because of excessive unexcused truancy.

On May 26, 1992 respondent superintendent notified petitioner that, while her son could attend summer school for English 11, he was not eligible to attend summer school for Participation in Government. That decision was based on the student's lack of effort and poor attendance in that course during the regular school year. Petitioner was also informed that her son would not be credited with the grade he received in the English 12 course at the Rochester evening program. This appeal ensued.

Pursuant to an interim order issued by me on July 1, 1992, petitioner's son was granted the opportunity to attend summer school for Participation in Government. The record indicates that he elected not to attend summer school, but instead registered to take a General Equivalency Diploma (GED) exam. The Commissioner will determine only matters which are in actual controversy and will not render a decision upon a matter which subsequent events have laid to rest (Appeal of Gierlach, 31 Ed Dept Rep 123; Appeal of Ambris, 31 id. 41; Appeal of Sileo, 28 id. 313). Since petitioner's son has been offered an opportunity to attend summer school, but has chosen not to do so, this issue is dismissed as moot.

Petitioner maintains that respondents acted arbitrarily and capriciously when they refused to grant her son credit for English 12 even though he received a passing grade in that course. The Commissioner of Education will not ordinarily substitute his judgment for that of a board of education with regard to a student's grade absent a clear showing that the board's determination was arbitrary, capricious or unreasonable (see Education Law '1709[3]; Appeal of Hermus, 30 Ed Dept Rep 404; Matter of Ravnitzky, 18 id. 83). In this instance, respondents have refused to give a student credit for a grade he earned in another school district. It is logically inconsistent and against sound educational policy to deny a student credit for a course in which the student has actually earned and been granted a passing grade (Appeal of Burns, 29 Ed Dept Rep 103; Appeal of Shannon, et al., 26 id. 218; Matter of Shamon, 22 id. 428). I have reviewed respondents' contentions on this issue and find them without merit. Accordingly, petitioner's son must be granted credit for the grade he received in English 12 from the Rochester City School District.

Respondents' truancy policy provides that a student who misses a specified number of class periods will be denied credit for the courses and will be removed from the class. Petitioner maintains that respondents' policy is arbitrary and capricious. Specifically, petitioner notes that respondents' policy imposes academic sanctions, i.e., denial of course credit for unexcused absences but not excused absences. A board of education may adopt a policy establishing minimum attendance requirements to receive academic credit (Appeal of Rivers, 27 Ed Dept Rep 73; Appeal of Dickershaid, 26 id. 111; Matter of Laviolette, 24 id. 37), but such an attendance policy may not distinguish between unexcused and excused absences, for purposes of imposing the academic sanction of the denial of course credit. As stated in Matter of Shamon, supra:

Such a policy is logically inconsistent, in that students who have "excused" absences have equally missed "necessary" work which ought to have been made up in some other fashion to avoid loss of credit or reduction in a grade (Matter of Gibbons, 22 Ed Dept Rep 134 [1982]). If respondent desires to establish a minimal attendance requirement before credit will be granted -- and certainly classroom performance is an appropriate consideration for granting credit -- it must do so without distinguishing between excused and unexcused absences.

Respondent board attempts to defend its policy by insisting that such policy is not an attendance policy but is actually "a disciplinary policy dealing with insubordination based upon unauthorized class cuts." I find that argument unpersuasive. As a disciplinary policy, it is improper, since it results in the suspension of a student from a particular class because of truancy. As stated in Appeal of Ackert, 30 Ed Dept Rep 31, 33:

In considering the authority of school boards to discipline students, '3214 of the Education Law provides for suspension of students who are "insubordinate or disorderly or whose conduct otherwise endangers the safety, morals, health or welfare of others" or "whose physical or mental condition endangers the health, safety or morals of himself or of other pupils." (Education Law '3214[3][a][1] and [2]). To the extent that '3214 of the Education Law refers to truancy, school officials are authorized to establish schools or set apart rooms in public school buildings for their instruction and for pupils with irregular attendance (Education Law '3214[1]). Notably, truancy is omitted from '3214 as a basis for suspension. Moreover, because the State Constitution provides that all children of the State are entitled to attend the public schools, (NY Const. Art. 11, '1) any statute limiting that right must be narrowly construed. Therefore, I conclude that school authorities are not empowered under '3214 to suspend students for truancy . . . a student may not be suspended, expelled or dropped from school attendance for truancy.

Although I fully appreciate respondents' concerns on this issue, I must conclude that the school district's present truancy policy is not authorized by law and is contrary to sound educational policy. In view of this conclusion, it is not necessary for me to address petitioner's contention concerning procedural due process of law. Finally, the fact that petitioner's son was dropped from the Participation in Government class because of respondent board's improper policy, is not a basis for granting petitioner's son academic credit for that course. The record shows that at the time the student was dropped from the class, he was clearly failing that class.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondents' determination to deny academic credit in English 12 to petitioner's son for the 1991-92 school year be, and the same hereby is, annulled; and

IT IS FURTHER ORDERED that respondents award petitioner's son credit in English 12 in accordance with the terms of this decision.

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