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Decision No. 13,965

Appeal of JOHN W. and LORRAINE W. on behalf of their son, TODD W., from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding a grade determination.

Decision No. 13,965

(June 24, 1998)


Covey, Roberts, Buchanan & McGroddy, attorneys for petitioners, George Hunter Roberts and Ellen Hyman-Browne, Esqs., of counsel

Kaye, Scholer, Fierman, Hays & Handler, LLP, attorneys for respondent, Peter A. Walker and Scott B. Goldberg, Esqs., of counsel

MILLS, Commissioner.--Petitioners challenge the decision of the Board of Education of the Katonah-Lewisboro Union Free School District ("respondent") to award their son, Todd, a zero on his 12th grade Precalculus final as a penalty for cheating on the examination. The appeal must be dismissed.

On June 13, 1997, while a high school senior in respondent’s district, Todd sat for his final examination in Precalculus. Following the exam, the teacher, Ellen Johnston, discovered that Todd handed in a completed version of the wrong test. In an affidavit submitted in response to petitioners’ appeal, Ms. Johnston explained that she had prepared two different versions of the test to administer to the two sections of the class she taught. She kept the different versions in separate piles and, on June 12, 1997, administered the final exam to her first section by distributing, to the students, the version designed for that section. Thereafter, Ms. Johnston failed to secure the extra copies of that version of the test.

On June 13, 1997, Ms. Johnston administered the final examination to the other section, in which Todd was enrolled. She recalled that, prior to distributing the test, she specifically checked the exam that was located at the top of the pile in order to ensure that it was the version designed for that section.

Todd admitted that he was the first student in his section to receive the distributed exam on June 13 and that his test was taken from the top of the pile. The other students in the class received their tests from the same pile.

Later, while grading the examination, Ms. Johnston discovered that Todd had submitted a completed version of the wrong test, i.e., the version used in the earlier section. His test paper had also been creased.

Ms. Johnston notified petitioners of the incident and, on June 20, 1997, met with petitioners and Dr. Karen Benedict, the school principal. Todd did not attend the meeting because, according to petitioners, none of the school administrators had requested his presence there.

Thereafter, by letter dated June 26, 1997, Dr. Benedict informed petitioners that Ms. Johnston had corrected the test and that, although Todd had earned a grade of 52, his report card would reflect a grade of zero for the test. Dr Benedict further indicated that Todd would pass the course despite this grade. Dr. Benedict also expressed her disappointment that Todd did not attend the meeting with his parents to give his explanation of the incident.

On June 27, 1997, petitioners, by their attorney, wrote to Dr. Benedict and requested a hearing. At the ensuing hearing on August 19, 1997, petitioners, their attorney, Ms. Johnston, the Chairman of the Mathematics Department and counsel for the school district attended, and Dr. Benedict presided. Todd also attended and was afforded an opportunity to testify.

Dr. Benedict issued her written decision on November 4, 1997. After considering the statements of Todd and Ms. Johnston, the comments of the attorneys for the parties, and her review of the student’s final exam submission, Dr. Benedict concluded that Todd had improperly obtained a final examination intended for the other section, and assigned him a grade of zero for the test.

Petitioners contend that the principal’s decision was arbitrary, capricious, factually unsupported and based on an unwarranted assumption after the teacher discovered that the test paper was creased. Petitioners maintain that, at the hearing, the teacher was unable to eliminate the possibility that she had handed the pupil the wrong exam, and admitted that she did not verify each examination before distributing the tests to each student. Petitioners further maintain that their son had no reason to cheat inasmuch as he already had earned quarterly marks of 87, 73, 74 and 77 in Precalculus, with a mid-term grade of 54. Thus, in their view, receiving a grade of 52 for a test that he allegedly possessed prior to the examination, undermines the claim that he had cheated. Moreover, Todd explained that he had creased the paper to prevent himself from viewing one set of the questions while he worked on the other set.

Petitioners further maintain that the district did not comply with the procedures set forth in its Student/Parent Handbook inasmuch as the principal did not question Todd about the incident prior to concluding, on June 26, 1997, that he had cheated.

Petitioners request that I direct respondent to assign the grade of 52 to Todd’s Precalculus final and to expunge all references of this incident from his records.

Respondent contends that the decision was lawful in all respects, and was neither arbitrary, capricious nor unreasonable. Respondent also contends that the petition should be dismissed because petitioners lack standing to maintain this appeal, petitioners have failed to exhaust their administrative remedies, and the petition is time-barred.

Initially, I must address a procedural issue. The reply submitted by petitioners includes an affidavit which contains new allegations not set forth in the petition. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of Corbett, 34 Ed Dept Rep 138; Appeal of Post, 33 id. 151). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (Appeal of Corbett, supra; Appeal of Post, supra; Appeal of Taber, et al., 32 Ed Dept Rep 346). Therefore, I will not consider the affidavit attached to petitioners’ reply.

I find that there is no merit to any of the procedural defenses raised by respondent. In the first place, Education Law "310 provides that any aggrieved person may appeal to the Commissioner. Under that section, although a person over the age of 18 is legally competent to maintain an appeal (Appeal of Strada, 34 Ed Dept Rep 629; see, also, Appeal of Farber, 33 id. 424), a parent may petition on behalf of his or her child (Appeal of Strada, supra). Accordingly, I find that petitioners have standing to bring this appeal, and their son need not have signed the petition, nor submitted a separate affidavit, on his own behalf (Appeal of Strada, supra).

Secondly, the petition is timely. Contrary to respondent’s claim, the record shows that petitioners are challenging the principal’s determination, dated November 4, 1997. Inasmuch as this appeal was commenced on December 3, 1997, within 30 days of the making of that decision, I will not dismiss the appeal as untimely (8 NYCRR "275.16).

Additionally, petitioners were not required to appeal to the board before seeking my review. Under Education Law "1709(3), the board of education is the final authority in the district with respect to matters of grading (Appeal of Hickey, 32 Ed Dept Rep 12; Matter of Buecker, 18 id. 229). However, nothing in the statute or the Commissioner’s regulations requires that petitioners appeal first to the board before exercising their right to initiate this appeal pursuant to Education Law "310 (see, e.g., Appeal of Deleewerk, 37 Ed Dept Rep 453; cf., Appeal of Snetzko, 37 id. 264; Appeal of Miller, 36 id. 126). Consequently, there is no basis to dismiss this appeal for failure to exhaust an administrative remedy.

The appeal, however, must be dismissed on the merits. I will not substitute my judgment for that of school officials with regard to the determination of a student’s grade absent a clear showing that that determination was arbitrary, capricious or unreasonable (Appeal of Hickey, supra; Appeal of Timbs, 29 Ed Dept Rep 392; Appeal of Richardson, 29 id. 70). Moreover, where a student is found to have compromised the integrity of an examination, giving him a grade of zero, after a full investigation by the school district of the circumstances surrounding the zero grade and after affording the student an opportunity to present his version of the incident, is not arbitrary and capricious (see, e.g., Appeal of Thomas and Judith K., 30 Ed Dept Rep 245; Matter of Ford, 21 id. 393).

Here, the principal conducted a hearing and offered petitioners and their son an opportunity to testify and dispute the claim. Petitioners offer, in support of their case, only that Todd had not cheated and that he had legitimately explained the reason that his test papers were creased. Their argument, however, is undermined by Todd’s admission that he received the first test from the top of the pile that the teacher was holding. Indeed, by affidavit, the teacher attested that she kept the two versions of the examination separate; that, prior to distributing the test to Todd’s section, she specifically checked the examination on the top of the pile to ensure that it was the version designed for that section; that she confirmed that the pile did consist of the correct version; that the first examination she distributed on June 13, 1997 was taken from the top of the pile, which she had already checked, and that, during the process of grading the examination, she discovered that Todd had submitted a completed version of the test that had been distributed to the other section. Based on these submissions, I cannot conclude that the principal’s decision was arbitrary or capricious.

While it is regrettable that the principal did not interview the student prior to rendering her initial decision on July 26, 1997, any deficiencies therein were corrected when she provided petitioners and their son with notice of the incident, an explanation of the circumstances surrounding the claim, and, ultimately, an opportunity to present their side of the story at a hearing. Under these circumstances, I find that petitioners received the process due.

I have reviewed the parties’ remaining contentions and find them without merit.