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Decision No. 13,498

Appeal of DWAYNE A. JOHNSTON, on behalf of his son, SAMUEL, from action of the Board of Education of the Cattaraugus Central School District relating to denial of high school credits and diploma.

Decision No. 13,498

(October 23, 1995)

Williams & Brown, Esqs., attorneys for respondent, Thomas P. Brown, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals determinations by the Board of Education of the Cattaraugus Central School District ("respondent") denying his son credit for certain courses taken during the 1994-1995 school year and a high school diploma. Petitioner requests that I set aside those determinations and direct respondent to grant his son credit for the courses he passed and issue him a diploma. The appeal must be sustained.

Petitioner's son was a senior in respondent's district during the 1994-1995 school year. The district had previously adopted a policy on school attendance and credit which provided that to obtain credit in a course, a student may not miss more than 20 days for a full-year course nor more than 10 days for a half-year course. The policy makes no distinction between excused and unexcused absences. The policy further provides that when a student has exceeded the number of absences allowed, the student and his parent must be notified that credit will not be granted. The student or parent may then file a written appeal with the Dean of Students. The Dean must then meet with the teacher or teachers involved and with the guidance counselor. Together, they may consider whether the absences were caused by chronic or acute illness substantiated by a physician's written explanation. If the student has made up missed classes and home assignments, the committee "may allow credit for said course as long as all other course requirements have been met by the appealing student."

Prior to April 1995, petitioner's son had exceeded the permissible number of absences in four different courses. An appeal was made to the Dean of Students, who met with the teachers involved on April 6, 1995, and denied the appeal. A further appeal to the superintendent was similarly denied on May 4, 1995. An appeal to the Commissioner was commenced on May 30, 1995, and on June 20, 1995, the board of education also denied petitioner's appeal.

On June 23, 1995, my Office of Counsel received petitioner's reply, which indicated that his son had already received final passing grades in two subjects in which credit had been denied. On that same day, Counsel and Deputy Commissioner for Legal Affairs Kathy A. Ahearn issued a limited stay directing respondent to allow petitioner's son to participate in the district's graduation exercises to be held on June 25, 1995.

On July 10, 1995, my Office of Counsel received from petitioner a copy of his son's "student progress report" dated June 23, 1995. That document indicates that credit was denied in three full-year courses and two half-year courses. The report further indicates that in all three full-year courses, petitioner's son received a passing final average; in the half-year courses, petitioner's son received one passing grade and one failing grade.

Although petitioner's son had clearly exceeded the limitations established in respondent's attendance policy, respondent allowed him to continue in his courses and take final examinations, and then computed final averages for him in all courses. In Matter of Burns (29 Ed Dept Rep 103), the Commissioner observed:

The Commissioner of Education will not ordinarily substitute his judgment for that of a Board of Education with regard to a student's grade absent a clear showing that the board's determination was arbitrary, capricious or unreasonable (Matter of Caskey, 21 Ed Dept Rep 138; Matter of MacWhinnie, 20 Ed Dept Rep 145). Although respondent's policy is consistent with prior Commissioner's decisions upholding district policies that deny credit based on excessive absenteeism (Application of McClurkin, 28 Ed Dept Rep 136; Matter of Rivers, 27 id. 73; Matter of Fitchett-Delk, 25 id. 178; Matter of Laviolette, 24 id. 37), I find the policy, as applied, unreasonable. Although respondent's policy provided for possible denial of credit after 10 absences in one semester and 15 absences over the course of a school year, it was respondent's judgment that petitioner had nonetheless earned passing grades in six out of eight of her subjects. As previously held, it is logically inconsistent to earn passing grades and then, in effect, be denied the grades actually earned through denial of course credit (Matter of Shamon, 22 Ed Dept Rep 428; Application of Shannon et al., 26 Ed Dept Rep 218). I find respondent's policy as applied, unreasonable because it resulted in an automatic loss of credit despite the fact that the pupil had earned passing grades for the course.

SeealsoAppeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 83; cf., Appeal of Strada, 34 id. 629 (where the student did not attend the course in question, nor did he take the final examination). In view of the foregoing, respondent must grant petitioner's son credit for those courses in which he earned final passing grades.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent grant credit for those courses shown on petitioner's son's student progress report dated June 23, 1995, in which Samuel received final passing grades, and, if petitioner's son is, with the addition of those credits previously denied, entitled to a high school diploma, respondent is directed to award the appropriate diploma forthwith.

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