Decision No. 13,349

(January 30, 1995

Stuart Frum, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals the determination of the Board of Education of the Westport Central School District ("respondent") to uphold the assignment of a grade of zero to his son. The appeal is dismissed.

In April 1994, petitioner's son, Joseph, was asked to give an oral report as part of his "introduction to occupations" course. Prior to the presentations, the teacher gave the students performance objectives. One objective was "demonstrating personal appearance." When Joseph began his report, the teacher interrupted and stated that to comply with the "demonstration of personal appearance," Joseph must remove his hat. After refusing to remove his hat, Joseph was told to sit down and was given a zero for the report. Respondent board upheld the grade. This appeal followed.

Petitioner asserts that the grade was improper because it constituted a reduction for disciplinary reasons. Respondent counters that Joseph earned a zero for failure to complete the assignment satisfactorily, and that the grade was not a disciplinary measure.

When a student challenges a grade, he bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Burton, supra; Appeal of Timbs, 29 Ed Dept Rep 392). It is well settled that decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law '1709(3)). Absent a finding that a grade 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). Moreover, a teacher must be given some latitude to determine how to teach a lesson (Malverne Union Free School District v. Sobol and Morgan, 181 AD2d 371).

By its very nature, an "introduction to occupations" course seeks to prepare students for work opportunities. Part of the requirement for the presentation in Joseph's class was a "demonstration of personal appearance." This requirement was clearly rationally related to the objectives of the course. Indeed, the inclusion of the proper "personal appearance" component educates students about how to present themselves in a competitive job market. Joseph wore his hat during the presentation even though the teacher told the students that effective "demonstration of personal appearance" precluded wearing a hat. Thus, the record reflects that Joseph received a zero on the assigned oral presentation because he did not satisfactorily complete the assignment, i.e., did not effectively "demonstrate personal appearance." On the record before me, the teacher appears to have reasonably exercised her discretion in assigning this grade, especially in light of course objectives that were clearly communicated to the students.

Petitioner also asserts that respondent violated Joseph's First Amendment rights by requiring him to remove his hat. However, there is no evidence in the record that Joseph's hat was symbolic speech of either a political or religious nature (see, West Virginia Board of Education v. Barnette, 319 US 624; Zorach v. Clauson, 343 US 306). Accordingly, Joseph's wearing of the hat does not trigger First Amendment protections.

Moreover, a school board may regulate student dress where there are legitimate educational reasons to do so, such as teaching students socially appropriate behavior, eliminating potential health or safety hazards, preserving the integrity of the educational process or avoiding school violence (Appeal of Pintka, 33 Ed Dept Rep 228). Even if viewed as a board proscription of student dress, respondent's action was proper because it taught Joseph the socially appropriate behavior for a job interview. Respondent's regulation of Joseph's dress was thus not only an integral part of the lesson to be learned, but was based on a legitimate educational concern.

THE APPEAL IS DISMISSED.

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