Decision No. 13,027

(October 21, 1993)

McGuire, Kehl & Nealon, Esqs., attorneys for respondent, Jeffrey A. Kehl, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from action of the Board of Education of the City School District of the City of New Rochelle regarding her final grade in cosmetology. The appeal must be dismissed.

Petitioner attended New Rochelle High School and graduated in June 1982. She took a cosmetology course during the 1980-1981 school year and received a final grade of 43 for the course, in part because she did not complete the required number of training hours to receive a passing grade. The facts are in dispute over the actual number of hours required for course credit. Both petitioner and respondent agree, however, that the course hours were never completed by petitioner at either respondent's high school or elsewhere, and attempts by the parties to resolve the issue immediately following the issuance of the failing grade were unsuccessful.

Petitioner first sought review of this matter by the State Education Department (SED) in 1983, when she wrote to the Division of Occupational Instruction, which determined that she was 37 hours short of the required 1000 hours of training. Petitioner also corresponded sporadically with respondent between 1983 and 1989. In 1989, petitioner corresponded with SED's Office of Counsel, which advised that her claim was untimely. This appeal was filed in March 1993.

Petitioner alleges that she was improperly denied credit for the cosmetology course and seeks a determination that she was entitled to a passing grade. She also requests that she be issued a temporary cosmetology license and requests an official apology from the school district. Respondent contends that the appeal is not timely and should be dismissed since petitioner was assigned a failing grade over eleven years ago.

Before reviewing the merits of this appeal, it is necessary to address the procedural issue. Petitioner received the cosmetology grade in dispute in 1981. Even taking into account a period of negotiation in 1981 and 1982 between petitioner and respondent regarding the hours needed to receive a passing grade, the time to make an appeal to the Commissioner of Education has long passed. An appeal must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16). Although petitioner states that her delay in filing the petition is due to her attempt to exhaust all other administrative remedies over the years, and that SED had only recently determined that she was "eligible" to file an appeal, the record does not support that contention. As noted already, SED advised petitioner in 1989 that an appeal was untimely since the event complained of occurred in 1981. Furthermore, petitioner's claim of ignorance of the appeal process is not a sufficient excuse for her delay in commencing a timely appeal, except in unusual circumstances (Application of Aarseth, 32 Ed Dept Rep 626; Appeal of Savastano, 32 id. 326; Appeal of Saeger, 31 id. 528). In any event, there can be no explanation for a delay of over ten years, and I find that the appeal is untimely and must be dismissed.

Although the appeal is dismissed on procedural grounds, it must also be dismissed on the merits. Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law '1709[3]). Barring a finding that the determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Hickey, 32 Ed Dept Rep 12; Appeal of Kriaris, 31 id. 353). When a student challenges a final grade, she bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Timbs, 29 Ed Dept Rep 392).

Petitioner claims that her failing grade was unfair and advances numerous reasons why she should be awarded a passing grade. The record, however, does not support her claim. Complete grade books submitted by respondent show that petitioner did not earn a passing grade for the course. Moreover, I find no evidence that the district abused its discretion in assigning this student's cosmetology grade. Accordingly, there is simply no basis to substitute my judgment for that of the local school authorities.

While it is regrettable that petitioner harbors resentment over the failing grade, she apparently wishes to receive her cosmetology degree even at this late date. I thus urge her to enroll in an accredited program to achieve that goal, since the relief she requests through this appeal cannot be granted.

THE APPEAL IS DISMISSED.

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