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Decision No. 13,727

Appeal of ANTHONY PASQUALE, on behalf of his son THOMAS, from action of the Board of Education of the Wayland-Cohocton Central School District regarding denial of course credit.

Decision No. 13,727

(January 7, 1997)

Harris, Beach & Wilcox LLP, attorneys for respondent, David W. Lippitt, Esq., of counsel

Petitioner appeals the denial of course credit to his son, Thomas, due to excessive absences. The appeal must be sustained in part.

The Board of Education of the Wayland-Cohocton Central School District ("respondent") has a minimum attendance policy. Under it, a student may not miss more than 24 classes in a full year course or 12 classes in a semester course. If a student is absent from class more than the allowed number of days, he or she is denied credit for the course. Respondent's policy further provides that when a student misses a class due to participation in a school sponsored activity, participation in such activity will be treated as an extension of the student's classroom activity. Thus, the student will be considered to be in attendance in class for that day.

In addition to its written attendance policy, respondent has an unwritten policy which permits students to make up class work, regardless of the reason for the absence, until the student exceeds the maximum number of absences permitted by respondent's attendance policy. This unwritten policy only allows a student to make up class work, not class participation. Therefore, if a student exceeds the maximum number of allowed absences, the student will be denied course credit even if the student has made up all missed class work.

Petitioner's son Thomas was a tenth grade student at respondent's high school during the 1994-95 school year. Among other things, Thomas was enrolled in Math Course IIR and French 2, both full year courses, and Health, a semester course.

According to his teachers' records, prior to the district's April spring break, Thomas was absent from Math Course IIR fifteen times, French 2 eighteen times, and Health four times. The district's attendance record shows that before the spring break, all of Thomas' absences from Health, and at least ten of his absences from Math and French, were for legitimate medical reasons. In addition, at least three of Thomas' absences from French 2 were for music lessons. Petitioner alleges, and respondent does not dispute, that Thomas made up all class work and assignments after each of these absences.

Prior to the district's spring break, petitioner informed the high school principal that his two sons, Thomas and Conrad, would not be in school for two weeks following the break because they would be taking an extended family vacation. At that time, the principal warned petitioner that missing ten days of school after the break would result in Thomas exceeding the maximum number of allowed absences and would result in his losing credit in Math Course IIR, French 2 and Health. Nevertheless, Thomas was absent from school from April 24, 1995 to May 5, 1995, a total of ten school days.

On or about May 8, 1995, the high school principal notified petitioner that Thomas had exceeded the maximum number of allowed absences under respondent's attendance policy and would be denied credit in Math Course IIR, French 2 and Health. Thereafter, Thomas continued to attend all three classes but was denied the opportunity to turn in and/or receive grades for assignments completed after May 5, 1995. As a result, Thomas did not receive a fourth quarter grade in these three courses. In addition, Thomas was denied the opportunity to take the Math Course II Regents and the French 2 and Health final examinations.

Petitioner commenced this appeal on June 13, 1995 and requested a stay to permit Thomas to take the Regents examination in Math Course II, and final examinations in French 2 and Health. The district subsequently decided to permit Thomas to take the Math Course II Regents with the understanding that his grade would be withheld pending a decision in this appeal. On June 22, 1995, Commissioner Sobol denied petitioner's stay request.

Petitioner contends that Thomas made up all the work he missed due to absences and, therefore, should not be denied credit. Petitioner further contends that Thomas was denied credit based on inaccurate attendance records. In addition, petitioner maintains that respondent's policy, which does not count school sponsored activities as absences, is invalid. Petitioner also argues that some of Thomas' absences were due to Attention Deficit Disorder. Petitioner requests that I direct respondent to remedy its refusal to allow Thomas to take the final examinations and grant him credit for all make-up work. Petitioner further requests that I invalidate respondent's attendance policy.

Respondent contends that its minimum attendance policy is valid. Respondent further contends that although a student is allowed to make up class work, a student can never make up missed class participation. Respondent also maintains that petitioner never presented any evidence to suggest that Thomas' absences were in any way related to his disability. Respondent denies that its attendance records are inaccurate.

Initially, I must address a procedural matter. The record reveals that petitioner's reply contains new factual allegations and exhibits not previously stated or set forth in the petition. A reply is not meant to buttress allegations contained in the petition or to add assertions or exhibits that should have been in the petition and which respondent could have answered (Appeal of Taber, et al., 32 Ed Dept Rep 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, while I have reviewed petitioner's reply, I have not considered the portion that contains new allegations and exhibits that were not originally contained in the petition.

Turning to the merits, a board of education may adopt a policy requiring a minimum amount of attendance for students to receive academic credit (Appeal of Hansen, 34 Ed Dept Rep 235; Appeal of Ackert 30 id. 31; Appeal of Dickershaid 26 id. 111). However, such attendance policy may not distinguish between excused and unexcused absences, for purposes of imposing the academic sanction of the denial of course credit (Appeal of Hansen, supra). In determining a student's attendance grade, it is irrelevant whether a student's absence on any particular day is excused or not because, in either case, the student has missed the opportunity for classroom participation (Appeal of Shepard, 31 Ed Dept Rep 315; Appeal of Dickershaid, supra; Matter of Shamon, 22 id. 428).

In this case, respondent argues that its attendance policy does not distinguish between excused and unexcused absences. The record shows, however, that respondent's attendance policy does make an exception for certain absences. Specifically, when a student is absent due to a school sponsored activity, such as a music lesson, the student is not considered to be absent for purposes of respondent's policy. An attendance policy which excuses certain absences, by treating college visits, or music lessons as the equivalent of regular attendance, is invalid (Appeal of Shepard, supra). Therefore, I find respondent's policy to be arbitrary because it creates exceptions for certain student absences. Accordingly, I cannot uphold respondent's decision to deny credit based on an invalid policy.

Petitioner also contends that some of Thomas' absences were related to Attention Deficit Disorder ("ADD"). The record indicates that petitioner was afforded the opportunity to establish that nexus, but failed to produce any evidence to establish that any of Thomas' absences were related to ADD.

I note, however, that in its present form, respondent's unwritten make-up policy does not appear to ensure a student with a disability the full opportunity to make up an absence due to that disability. An attendance policy should be flexible enough to accommodate a student who has a disability pursuant to the Individuals with Disabilities Education Act ("IDEA"), 20 USC '1400 et seq., and '504 of the Rehabilitation Act of 1973 ("Section 504"), 29 USC '794. A policy which ensures a student the opportunity to make up work due to a disability is consistent with the prohibition in federal law against denial of access to public school programs on account of a disability (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 83). To avoid future challenges, respondent would be well advised to clarify this point in its attendance and make-up policies.

I further find that respondent's policy is overbroad in its application to non-disabled students. In effect, respondent's policy precludes a student who has made up all missed class work from avoiding the denial of credit. If a district allows a student the opportunity to make up missed class work, that make up must mitigate the loss of credit which would otherwise result from the student's absence (Appeal of Hegarty, 31 Ed Dept Rep 232). Otherwise, a student who is absent for legitimate reasons, who makes up and receives grades for all missed class work, could still potentially lose course credit. I find this result to be contrary to sound educational policy.

In light of this decision, I need not address the parties remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent's attendance and make-up policies be modified in accordance with this decision; and

IT IS FURTHER ORDERED that to the extent Thomas has not already re-taken and passed French 2 and Health that respondent give Thomas credit for all work completed in these courses during the 1994-95 school year; give Thomas the opportunity to complete any work he was prevented from completing in these courses after May 5, 1995; offer Thomas the opportunity to make-up the final examinations in these courses at a mutually agreed upon time; and award Thomas credit for each course in which he earns a final passing grade; and

IT IS FURTHER ORDERED that respondent release Thomas' grade on the Math Course II Regents examination, and to the extent Thomas has not already re-taken and passed Math Course IIR, that respondent give Thomas credit for all work completed in this course during the 1994-95 school year; give Thomas the opportunity to complete any work he was prevented from completing in this course after May 5, 1995; and award Thomas credit for Math Course IIR if he earns a final passing grade.

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