Decision No. 13,592

(April 17, 1996)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, Rochelle J.

Auslander, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Pine Bush Central School District ("respondent") to award his son a grade of 62 for Social Studies 12 Economics. The appeal must be dismissed.

Petitioner is the parent of Todd Fatjo. During the 1994-95 school year, Todd was a senior in respondent's high school. Todd received a grade of 52 for the third quarter in Social Studies 12 Economics, a course required for graduation, although his report card indicated that he received a grade of 62. The facts are in dispute as to when petitioner was notified of this error. Petitioner claims that he received his son's report card on or about March 31, 1995 listing a mark of 62 for the course. On May 19, 1995, petitioner received an interim report for his son with no indication of a changed or corrected mark for the course. Respondent claims that Todd was told by his Economics teacher, Mr. Graham, that he had received a grade of 52 at the end of the third quarter marking period. In April 1995, the teacher reviewed a list of grades and noticed that there was a mistake in Todd's report card. He wrote the correct grade on a correction sheet and submitted it to the guidance office. Due to a clerical error, that change was never recorded and petitioner was not informed that Todd had received a grade of 52 for the course.

Petitioner claims that his wife contacted respondent on June 16, 1995 concerning Todd's graduation. Respondent's guidance counselor told Mrs. Fatjo that Todd would not be graduating because he failed Social Studies 12 Economics and informed her that Todd had received a grade of 52 for the third quarter marking period. On June 24, 1995, petitioner received his son's final report card in the mail with marks of 62, 60 and 77 with a final average of 60. Petitioner and his wife went to the school and met with the superintendent and the principal. The principal brought the teacher's marks and stated that the third quarter grade was a 52 and not a 62 as previously reported. Petitioner informed respondent's superintendent and principal that he had never been notified that the mark was changed. Todd was not permitted to graduate on June 24, 1995 because of the failing grade.

During the week of June 28, 1995, petitioner and the superintendent had several conversations concerning the problem but were unable to reach a resolution. On June 30, 1995 petitioner and his wife met with the guidance counselor to examine their son's files. The file contained a hand written notation dated June 26, 1995 changing the mark to a 52. This appeal ensued.

Petitioner alleges that respondent acted arbitrarily, capriciously and unreasonably with regard to his son's grade. Petitioner also seeks an order implementing a policy of timely notification of any grade changes. He also seeks an order directing respondent to issue Todd a diploma. Respondent raises two procedural defenses that the appeal is moot and untimely. Respondent also contends that it did not act in an arbitrary, capricious or unreasonable manner with regard to Todd's grade.

Before reaching the merits, I will address respondent's procedural claim that the appeal is moot. Respondent claims that, even if Todd received the incorrect grade of 62, that would give him a final average of 64, which is not a passing grade for the course. Since the course is a graduation requirement, Todd would have failed to graduate even with the incorrect grade. The record also indicates that Todd attended summer school at a neighboring high school to take the Economics course and achieved a passing grade. He received his high school diploma on or about August 23, 1995. The Commissioner of Education will decide only matters that are in actual controversy and will not render a decision upon facts that no longer exist or which subsequent events have laid to rest (Appeal of Lanior, 34 Ed Dept Rep 562). Since the record indicates that Todd would have failed the course even with a grade of 62 and since he has already received his high school diploma, the issue is moot.

The appeal 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 Oates, 34 Ed Dept Rep 244; Appeal of Burton, 33 id. 211; Appeal of Hickey, 32 id. 12). 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).

In this case, it appears that there was an unfortunate error in the correction of Todd's third quarter grade and petitioner was not informed about the correct grade in a timely manner. Petitioner did not realize that the course failure affected Todd's graduation until June 16, 1995 when petitioner's wife spoke to respondent's guidance counselor. However, petitioner's argument that respondent's actions were so negligent that it should be forced to award Todd a grade he did not earn is without merit. I have reviewed the record in this case and, although I sympathize with petitioner's frustration, I cannot conclude that respondent acted improperly and there is a basis to award Todd a grade he did not earn. Respondent is reminded to review its grading procedures to ensure timely notification of failing grades, especially involving graduating seniors.

THE APPEAL IS DISMISSED.

END OF FILE

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