MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Sweet Home Central School District ("respondent") to award her son, Brett, an August 1997, rather than a June 1997, graduation diploma. The appeal must be dismissed.

Petitioner’s son, Brett, was enrolled in 12^th grade English Literature during the final semester of the 1996-97 school year. Petitioner alleges that he took the final examination and received a grade of 65%. On June 19, 1997, petitioner was notified that Brett had failed the course. Petitioner alleges that an open-book re-test was given on June 24, 1997, because a large percentage of the class also had failed.

On June 25, 1997, the principal notified petitioner that her son passed the re-test with a grade of 90%. However, later, upon the complaint of certain teachers, the test was re-graded and it was determined that petitioner's son had failed the examination because of plagiarism. On June 27, 1997, the principal notified petitioner of this fact and informed her that, while her son could participate in the graduation ceremony that evening, he would not be graduating.

Following the June 27 graduation, Brett was informed that he had failed the English Literature course and, thus, would not be receiving a June graduation diploma. Accordingly, Brett attended English 12 at summer school. Brett passed the English 12 summer school course and was later awarded an August 1997 diploma.

Petitioner requests that I uphold Brett's grade of 90% on the re-test and confer a June 1997 diploma upon him based on that grade. She also requests that Brett receive credit for the summer school course which he completed and that his grade be computed into his final grade point average ("GPA").

Respondent submits a minimal response to the petition, substantially denying petitioner's allegations, and contends, without more, that the petition should be dismissed as untimely and for failure to state a claim.

Before reaching the merits, I will address the procedural issue of timeliness. 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, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). The record reveals that petitioner commenced this appeal on December 8, 1997. Respondent admits that this appeal is from the district's November 10, 1997 decision regarding the August graduation date. Accordingly, based upon respondent's own admission, I find that the appeal is timely inasmuch as it was commenced within 30 days of the decision appealed.

However, the appeal must be dismissed on the merits. Under Education Law "1709(3), boards of education are vested with broad discretion to "prescribe the course of study by which the pupils of the schools shall be graded and classified and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant." Thus, it is well settled that the Commissioner will not substitute his judgment for that of a board of education with regard to the determination of a student’s grade absent a clear showing that the board’s determination was arbitrary, capricious or unreasonable (Appeal of Hickey, 32 Ed Dept Rep 12; Appeal of Timbs, 29 id. 392; Matter of Richardson, 29 id. 70). Further, in an appeal to the Commissioner of Education challenging a final grade, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Marcia E., 35 Ed Dept Rep 331; Appeal of Timbs, 29 id. 392; Appeal of Amoia, 28 id. 150).

Petitioner has not met that burden here. It appears from the petition that respondent's decision to award an August 1997 diploma was predicated upon the failing grade which petitioner’s son received in June after it was determined that he had plagiarized a portion of the re-test. Petitioner does not deny that her son may have plagiarized a portion of the test, thereby, compromising the integrity of the examination. Accordingly, under these circumstances, it was not unreasonable for respondent to re-grade the examination and to change the grade initially granted to the student (Matter of Buecker, 18 Ed Dept Rep 229). Indeed, to do otherwise, as petitioner requests, would be to allow Brett to benefit from his conduct to the disadvantage of the other students who took the examination fairly.

Petitioner has not submitted any other evidence to show that respondent's determination was improper or that she is entitled to any of the relief requested. Accordingly, based on the record before me, I cannot conclude that respondent's determination is arbitrary, capricious or unreasonable.

Finally, there is no merit to petitioner's claim that her son should receive credit for the summer school course he completed. Based on the Student Progress Report, which petitioner submits as Exhibit B, it is evident that credit was awarded for the summer course and applied towards graduation.

THE APPEAL IS DISMISSED.

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