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Decision No. 12,944

Appeal of GAIL B. CHESBROUGH, on behalf of her daughter, Tauna B. LaFazia, from action of the Board of Education of the Indian River Central School District relating to selection of class valedictorian and salutatorian.

Decision No. 12,944

(June 9, 1993)

Grossman, Kinney, Dwyer & Reitz, P.C., attorneys for respondent, Marc H. Reitz, Esq. and Susan T. Johns, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's decision to award the valedictorian honor to a student who completed the usual four year high school course of study in three years. The appeal must be dismissed.

Petitioner's daughter is a senior in respondent's high school who will graduate in June 1993. The 1993 senior class includes a student who elected to accelerate her graduation by attending summer school. It is not disputed that this accelerated student has met all requirements for graduation in three years and is eligible to graduate in June.

In November 1992, petitioner objected to the scholastic ranking of the accelerated student with the rest of the senior class to the extent such ranking would deprive traditional seniors, who would otherwise be ranked first and second, valedictorian and salutatorian honors. On December 17, 1992, respondent decided to continue its past practice of ranking accelerated students with the rest of the graduating class and selecting the student with the highest academic average at the end of the first semester of the senior year as valedictorian and the student with the second highest average as salutatorian. In January 1993 the district ranked the students in the senior class. The accelerated student ranked first in the class and was selected valedictorian. Fellow student, Robert C. Young, II, ranked second and was selected salutatorian. Petitioner's daughter ranked third in the class.

Upon the district's designation of valedictorian in January, petitioner once again presented her views to the board in February. On February 11, 1993, respondent reaffirmed its decision of December 17, 1992 to continue its past practice of selecting a valedictorian and salutatorian. Petitioner commenced this appeal on March 17, 1993.

Petitioner argues that the accelerated student did not satisfy the requirements of a "regular" full time student in accordance with the 1992-93 student handbook, did not meet the physical education requirement set forth in the Commissioner's regulations, and, therefore, should not receive the honor of valedictorian. Furthermore, petitioner argues that the board's decision deprives traditional seniors of the valedictorian and salutatorian honors and speeches at graduation. Petitioner requests that I overrule the board's decision to allow the accelerated student to graduate as the sole valedictorian of the senior class and further requests that I direct the board to accept the compromise proposed by members of the senior class to name Robert C. Young II and the accelerated student co-valedictorians and her daughter salutatorian. In addition, petitioner requests that I direct the board to support the spirit of the Education Department's "New Compact For Learning" and update its student handbook to include provisions regarding accelerated students.

As a threshold matter, respondent argues that petitioner lacks standing to maintain an appeal on behalf of Robert C. Young, II. Furthermore, respondent contends that the appeal must be dismissed because it is untimely and because petitioner has failed to join the accelerated student as a necessary party. Lastly, respondent maintains that it has the authority to determine the criteria for the selection of valedictorian and salutatorian, and, under its criteria, the accelerated student properly earned the valedictorian position.

Respondent's contention that petitioner lacks standing to appeal on behalf of Robert C. Young, II, is correct. To maintain an appeal to the Commissioner of Education pursuant to Education Law '310, a party must be aggrieved in the sense of having suffered personal damage or impairment of his or her civil, personal or property rights (Appeal of DePasquale, 30 Ed Dept Rep 361). While petitioner may bring an appeal on behalf of her daughter, she may not assert the rights of another student (Appeal of Allert, Dec. No. 12909). Therefore, I will consider petitioner's claims only to the extent they concern her daughter.

Respondent's other procedural arguments constitute grounds for dismissal of this appeal. An appeal to the Commissioner must be instituted pursuant to 8 NYCRR '275.16 within 30 days from the making of the decision or the performance of the act complained of. However, the Commissioner may excuse a failure to commence an appeal for good cause shown in the petition. Respondent argues that petitioner should have commenced this appeal within 30 days from the board's decision of December 17, 1992. Assuming arguendo that petitioner did not understand the effects of the December decision, respondent further contends that petitioner failed to commence an appeal within 30 days of the January designation of valedictorian or within 30 days of the board's decision of February 11, 1993. Petitioner's efforts to gain a reconsideration or reversal of the board's decision on February 11, 1993, do not extend the time in which an appeal must be taken (Appeal of Hall, 32 Ed Dept Rep 377; Appeal of Zeff, 29 id. 5; and Appeal of Vachon, 28 id. 276). Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Reynolds, 29 Ed Dept Rep 288; Appeal of Schwartz, 28 id. 258). I find no unusual circumstances to excuse the delay in this case. Accordingly, the appeal must be dismissed as untimely.

Petitioner's failure to join the accelerated student as a party also necessitates dismissal of this appeal. Petitioner is required to name any individual as a party whose rights would be adversely affected by a determination in favor of the petitioner (Application of a Child with a Handicapping Condition, 31 Ed Dept Rep 212; Appeal of Boeddener, 28 id. 578). In this case, the accelerated student is a necessary party because petitioner seeks an order denying her the honor of valedictorian and naming her co-valedictorian. This relief would adversely affect the accelerated student. Since petitioner does not name the accelerated student as a respondent, the appeal must be dismissed for failure to join a necessary party (Appeal of Nordin, 32 Ed Dept Rep 17).

The appeal must also be dismissed on the merits. Designation of the valedictorian or salutatorian of a class is a local award for which reasonable standards may be imposed by a board of education (Appeal of Boutros, 27 Ed Dept Rep 209). In this case, the board decided to follow its past practice of ranking accelerated students with the graduating class and designating the two students with the highest rankings valedictorian and salutatorian, respectively. Based on this decision, the accelerated student, who ranked first, was selected valedictorian.

There is no merit to petitioner's argument that the accelerated student should not receive the valedictorian honor because she failed to meet the physical education requirement and certain other requirements set forth in the student handbook. The requirements cited by petitioner do not address the selection of valedictorian or salutatorian, or the treatment of accelerated students. Moreover, the Commissioner's regulations permit a student to accelerate (8 NYCRR '100.5[e]) and provide for a waiver of the physical education requirement when an accelerated student is otherwise eligible to receive a diploma (8 NYCRR '100.5[a][3]). I have reviewed petitioner's other contentions and likewise find them to be without merit.

As former Commissioner Nyquist stated in Matter of Roberts, 15 Ed Dept Rep 269:

It is inequitable for ... any board of education, to treat three-year graduates on any different basis from four-year graduates ... [S]tudents who elect to pursue an accelerated program of studies should not be discriminated against in the assignment of a rank in class.

Accordingly, respondent's policy of including accelerated students in its class ranking determination is proper.

In light of the tension which the record reveals, however, respondent should consider including a section in the student handbook regarding accelerated graduation to better inform students and their parents.

THE APPEAL IS DISMISSED.

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