Appeal of T.K.O. II and A S.O., on behalf of their son, T.K., from action of the Board of Education of the West Irondequoit Central School District regarding student grading.

Decision No. 13,297

(December 2, 1994)

Nixon, Hargrave, Devans & Doyle, Esqs., attorneys for respondent, David J. Mooney, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the actions of the Board of Education of the West Irondequoit Central School District ("respondent") regarding their son. The appeal must be dismissed.

The petition herein is disjointed, making it very difficult to determine the nature of petitioners' complaints. Apparently, petitioners' son, T.K., was a senior at respondent's high school during the 1992-93 school year. It appears that on March 4, 1993, T.K. was involved in an altercation with a school security guard and was suspended for five days. A suspension hearing was held on March 18, 1993. Subsequently, petitioners met with the superintendent concerning alleged hearing improprieties. At that meeting, petitioners were represented by counsel. Sometime, in mid-March 1993, it appears that T.K. was again involved in inappropriate behavior. However, the record does not reveal what school officials did in response. It appears that T.K. may have been suspended for the balance of his senior year and received instruction at an alternate site.

A dispute arose between petitioners and respondent concerning T.K.'s final grade in English. Correspondence and conversations between the parties ensued. It appears that T.K. began attending college in September 1993 and respondent planned to issue him a high school diploma upon completion of freshman English. In a letter dated May 16, 1994, respondent informed petitioners that it had reviewed complaints raised by them and regretted that a satisfactory resolution could not be reached. This appeal followed.

Petitioners claim that respondent conducted an improper suspension hearing and request sanctions. Respondent raises several procedural defenses, including failure to exhaust administrative remedies, untimeliness and mootness. Respondent also contends that it acted properly.

Before reaching the merits, I will address the procedural issues. With respect to exhaustion of administrative remedies, I have repeatedly held that the decision of a superintendent rendered after a superintendent's hearing must be appealed to the board of education before the initiation of an appeal to the Commissioner of Education (Appeal of Savastano, 32 Ed Dept Rep 326; Appeal of Holliday, 29 id. 373; Appeal of Elkins, 27 id. 99). Education Law ' 3214(3)(c) specifically requires that an appeal from the decision of a superintendent be made to the board of education. While there is little evidence in the record concerning the suspension generally, there is no evidence that petitioners sought respondent's review of the superintendent's determination. Because petitioners failed to exhaust their administrative remedies, this appeal must be dismissed.

Petitioners claim that they did not pursue the suspension issue because of "threats" by the superintendent. Specifically, petitioners allege that the superintendent threatened to press for a more severe penalty if petitioners appealed. Respondent asserts that the superintendent merely pointed out that a new hearing would also address T.K.'s additional acts of insubordination that took place since the first disciplinary hearing.

Based upon the record before me, I cannot conclude that respondent threatened petitioners. However, I remind the superintendent that the extent of the penalty sought in a disciplinary action should reflect the gravity of the student's offense, and not respondent's desire to avoid further administrative proceedings. Moreover, the record indicates that petitioners were represented by competent counsel at the meeting with the superintendent. Thus, while it is regrettable that petitioners' decision to forgo further action may have been influenced by the superintendent's statements, petitioners apparently understood their legal rights and made an informed choice not to pursue them.

Respondent also claims that the petition is untimely. Appeals before the Commissioner of Education must be commenced within thirty days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). The claims raised in this appeal are well beyond the thirty-day requirement since the facts upon which they were based primarily occurred in 1993. Even if the May 16, 1994 letter is liberally interpreted as respondent's final action, the petition was not filed until June 21, 1994, more that thirty days from the date of the letter. Therefore, I find

the petition untimely.

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 Burton, 33 Ed Dept Rep 211; Appeal of Hickey, 32 id. 12; Appeal of Kriaris, 31 id. 353). When a student challenges a final grade, he bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Timbs, 29 Ed Dept Rep 392).

Petitioners claim that their son's grade was altered and that respondent mishandled the matter. The record indicates that petitioners have had numerous disputes with respondent concerning their son's behavior and grades. While the record is incomplete, it appears that T.K. has already received his high school diploma, as respondent agreed to issue it upon T.K.'s completion of college freshman English. Moreover, based on the record before me, I find no evidence that respondent abused its discretion in assigning grades to T.K. Accordingly, there is no basis to substitute my judgment for that of the local school authorities.

I have considered petitioners' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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