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Decision No. 13,340

Appeal of ROBERT J. KNAPP, individually and on behalf of his son, AARON L. KNAPP, from action of the Board of Education of the Colton-Pierrepont Central School District, Superintendent Joyce Monroe, and High School Principal Joseph Zelinski regarding student honors.

Decision No. 13,340

(January 24, 1995)

Arthur F. Grisham, Esq., attorney for respondents

SOBOL, Commissioner.--Petitioner appeals respondents' refusal to grant his son, Aaron, certain academic honors at graduation. The appeal must be dismissed.

In ninth grade, Aaron elected to accelerate his graduation from the district's high school. After completing the usual four year course of study in three years, Aaron graduated on June 25, 1993. Aaron ranked fourth in the graduating class with an average of 91.6%. At the time of Aaron's graduation, respondent board's policy provided for graduation awards to the valedictorian and salutatorian and honored all students graduating with an average of 85% or above. Under this policy, a student had to complete seven semesters to be eligible for the honor awards.

On graduation day, the high school secretary refused to give Aaron an honor sash. In addition, Aaron was not seated with the other honors students in the front row. During the ceremony, the superintendent neglected to shake Aaron's hand when she presented him with a National Honor Society certificate.

On July 12, 1993, petitioner appeared before respondent board and objected to his son's treatment at graduation. In response, on or about July 15, 1993, respondents sent Aaron a letter explaining that he was denied an honor sash and a front row seat at graduation in accordance with the board's policy. Respondents further stated that the policy was under reconsideration. This appeal ensued.

Petitioner contends that respondents treated Aaron unfairly at graduation and denied him honors and awards because he was an accelerated student. In addition, petitioner contends that, in previous years, respondents permitted other accelerated students to receive awards at graduation. Petitioner maintains that Aaron was traumatized by his treatment at graduation. Petitioner also maintains that respondents tried to intimidate petitioner.

Respondents contend that the appeal must be dismissed for failure to join necessary parties, untimeliness and failure to establish a clear legal right to the relief requested. Respondents also contend that the appeal is moot since graduation is over and the board subsequently decided to amend its policy to treat accelerated and non-accelerated students equally.

Before reaching the merits, I will address the procedural issues raised by respondents. Respondents contend that the appeal should be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law '310, must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Respondents maintain that a guidance counselor informed petitioner of the board's policy regarding graduation awards as early as 1991. Furthermore, respondents maintain that the events complained of occurred on or before June 25, 1993, the date of Aaron's graduation. Therefore, respondents argue that the appeal which was commenced on August 10, 1993 is untimely. It is not clear from the record when, and if, respondents informed Aaron of the graduation awards policy. In any event, petitioner appeals the board's refusal to take any action regarding Aaron's treatment at graduation. Petitioner appeared before the board on July 12, 1993. In response, the board sent a letter to Aaron on July 15, 1993. Therefore, to the extent petitioner appeals the board's refusal to act, I conclude that this appeal was commenced in a timely manner.

I also decline to dismiss this appeal for failure to join necessary parties. In his appeal, petitioner asks for an order directing respondent board to give Aaron all the recognition, respect and awards he earned. However, the petition does not specify which awards Aaron should have received. To the extent petitioner names specific awards for the first time in his reply, those allegations are disregarded, because a reply may not buttress allegations made in the petition or belatedly add assertions which should have been in the petition (Application of Verity, 31 Ed Dept Rep 485; Appeal of Pronin, 27 id. 203). Therefore, since petitioner fails to allege the denial of any specific awards, it is impossible to know which students, if any, would be adversely affected by a determination in favor of petitioner, and thus should be joined as parties. Accordingly, I will not dismiss the appeal on this ground.

The appeal, however, must be dismissed as moot. The Commissioner of Education will determine only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Langenmayr, 30 id. 322). Petitioner alleges that Aaron should have received an honor sash, should have been seated in the front row, and should have had his hand shaken by Superintendent Monroe. Since graduation has already occurred, no meaningful relief on these claims can now be granted. In addition, respondent has initiated a change in its graduation awards policy to treat accelerated and non-accelerated students equally. Therefore, this appeal is dismissed as moot.

Even if this appeal were not dismissed on procedural grounds, it would still warrant dismissal on the merits. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Pickreign, 28 Ed Dept Rep 163) and the burden of demonstrating a clear legal right to the relief requested (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). Petitioner alleges that Aaron was damaged by his treatment at graduation. Yet, petitioner offers no evidence of actual harm. Petitioner also requests that Aaron receive the recognition, respect and awards he earned. However, as noted above, the petition does not identify which awards Aaron should have received or contain any allegations to establish any actual entitlement to the awards. In addition, petitioner requests that respondent board reprimand the persons responsible for the demeaning treatment of petitioner's son at graduation. Petitioner, however, has failed to show that these persons did anything other than follow board policy. Lastly, petitioner has failed to demonstrate any intimidation by respondents. Accordingly, the appeal is dismissed.

Although this appeal is dismissed, I am constrained to comment on the board's policy. The policy in effect at the time of Aaron's graduation clearly discriminated against accelerated students. It has been held that it is inequitable for a board of education to treat three-year graduates on any different basis from four-year graduates (Appeal of Chesbrough, 32 Ed Dept Rep 647; Appeal of Pelletier, 27 id. 265; Matter of Roberts, 15 id. 269). In fact, respondent board of education was a party to Appeal of Pelletier, supra. In that case, I clearly stated that respondent board could not exclude an accelerated student from consideration for academic honors upon graduation (Appeal of Pelletier, supra at 268). Respondents are admonished for failure to comply with the Pelletier decision and subsequent decisions of the Commissioner. Respondents are directed to make diligent efforts in the future to remain better informed and to abide by the decisions of the Commissioner.

Respondents are also directed to submit to my Office of Counsel for review, within twenty days of the date of this decision, a copy of the revised policy demonstrating compliance with Appeal of Pelletier and this decision.

Finally, while I cannot grant petitioner the relief sought for the reasons set forth above, I note for the record that Aaron's academic record was certainly exemplary. Although it is most unfortunate that he was unjustly deprived of the opportunity to be considered for certain honors, that fact should not serve to diminish his outstanding accomplishments.

THE APPEAL IS DISMISSED.

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