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Decision No. 14,149

Appeal of MEGAN M. from action of the Board of Education of the Albion Central School District regarding student grading.

Decision No. 14,149

(June 29, 1999)

Woods, Oviatt, Gilman, Sturman & Clarke, LLP, attorneys for petitioner, Donald W. O'Brien, Jr., Esq., of counsel

David Lippitt, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Albion Central School District ("respondent") to award petitioner a zero on her calculus final exam. The appeal must be dismissed.

Petitioner was a senior at respondent's Charles D'Amico High School during the 1997-98 school year. She was enrolled in a college-level calculus course during the first semester of that year, with the final exam given on January 21 (Part I) and 22 (Part II), 1998. Students taking the course were required to use programmable calculators for portions of the coursework. Sometime before the 1997 Christmas break, petitioner's teacher, Ms. Dora Hayes, gave each student in the class a 12-page handout as a study aid for the upcoming final exam. On January 21, prior to starting Part I, which consisted of 20 multiple-choice problems taken directly from the study guide, Ms. Hayes briefly checked each student's calculator for the presence of unauthorized programs or problems. The students were allowed to use the calculators for some of the questions, but Ms. Hayes warned that she would be watching for excessive use of the calculators.

On January 22, when petitioner arrived for Part II of the exam, she asked Ms. Hayes if Part I had been graded. Ms. Hayes informed her that she had scored 100 on Part I. Ms. Hayes again checked the students' calculators before beginning the test. During the administration of Part II, several students were called out of class to the principal's office. After petitioner handed in her test paper, Ms. Hayes asked to speak with her in the hallway, where she informed petitioner that several students, including petitioner, were suspected of cheating on Part I of the exam. Petitioner was then called to the principal's office.

Principal Gary Mix asked petitioner if she had used an unauthorized calculator program with exam answers on it that was used by several other students while taking Part I. Petitioner admitted that she had knowledge of such a program, but denied using it to cheat on the exam. Later that day, and the next day, Friday, January 23, Mr. Mix met with petitioner and her father. Mr. Mix informed them that four students admitted having and using the unauthorized program during the exam and that the students identified petitioner as having and using the same program. Mr. Mix offered petitioner the option of retaking the test or receiving a zero on the exam. Petitioner declined the retest. Mr. Mix also explained the district's various penalties that might be imposed on the cheaters.

On January 23, respondent's superintendent, Ronald L. Sodoma, sent a notice to petitioner's parents, scheduling a hearing for February 3, 1998. On January 30, 1998, Mr. Sodoma informed petitioner's parents that because the district was not going to suspend petitioner, no hearing would be held, but petitioner could appeal the zero grade to him. On March 2, 1998, petitioner's attorney submitted an appeal to Mr. Sodoma, which Mr. Sodoma rejected by letter, dated March 9, 1998. Petitioner then appealed to respondent. Initially, petitioner intended for her attorney to represent her at the appeal to respondent. However, at its April 6, 1998 meeting, respondent informed petitioner and her parents that the attorney would not be allowed to appear, preferring instead to hear from petitioner directly. Respondent held a special meeting on Monday, April 13, 1998, where petitioner made her presentation to the board. After adjourning to deliberate, respondent advised petitioner that her appeal had been denied. This appeal ensued.

Petitioner contends that she did not cheat on the examination and that she was denied due process because she was never given the opportunity to confront her accusers and that the accusers' statements are only circumstantial evidence against petitioner. She contends that she programmed problems from the study guide into her calculator as a study aid because Ms. Hayes had told students that would be acceptable. She alleges that she deleted those problems before the exam. Petitioner further contends that, despite repeated requests, she was denied the opportunity to review the evidence against her. Petitioner argues that she was not given a meaningful opportunity to retake the test because Mr. Mix told her that she would have to take the retest immediately, during her lunch break. In support of her claim, petitioner points to her past academic achievements and extra-curricular activities. She contends that she studied numerous hours for the exam and that she memorized the handout, resulting in her high score. Petitioner requests that I reverse respondent's determination and award her a grade of 100 on Part I of the exam and that her test and course grade be adjusted accordingly. Petitioner further requests that her school records be expunged of all references reflecting or alluding to the cheating allegations.

Respondent contends that its determination was not arbitrary or capricious or unreasonable. Respondent further contends that petitioner was not denied due process. Respondent supplies an affidavit from Ms. Hayes that states that she specifically told students that the problems from the study guide were not to be programmed on their calculators, even as a study aid. Ms. Hayes also states that she confronted petitioner two weeks before the exam for copying a homework assignment. Respondent points to petitioner's refusal to retake the exam as further proof of her guilt and contends that petitioner was not limited to a lunch hour retest, but was told only that she must take it that day. Respondent requests that I dismiss the appeal.

Initially, I must address a procedural matter. Following the commencement of this appeal, petitioner submitted supplemental affidavits by three of her calculus classmates, dated August 1998. One affidavit supports petitioner's claim that Ms. Hayes told the students they could program the study problems into their calculators as a study aid. Petitioner asks that I consider them since they are in response to respondent's submissions and because two of the students waited until after graduation to make their affidavits because they feared retaliation by respondent. Additionally, petitioner's attorney states that there were scheduling problems due to summer vacation. Pursuant to the authority granted by section 276.5 of the Regulations of the Commissioner of Education (8 NYCRR "276.5), I have accepted these affidavits for consideration.

The appeal, however, must be dismissed on the merits. Petitioner claims that she was denied due process because respondent did not allow her confront her accusers or challenge the evidence against her. Petitioner, however, is not entitled to a full evidentiary hearing under Education Law "3214 since this case involves a grade reduction, not a disciplinary suspension (Appeal of Thomas and Judith M., 29 Ed Dept Rep 277, Decision No. 12,293). Petitioner and her father met with Mr. Mix twice to discuss the matter. Petitioner also presented her appeal of the decision with the assistance of an attorney to the superintendent, and then to respondent. Under these circumstances, I find that petitioner received all the process she was due.

With regard to the merits of the grade reduction, 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 John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,965; Appeal of Hickey, 32 id. 12, Decision No. 12,741; Appeal of Timbs, 29 Ed Dept Rep 392, Decision No. 12,331). Moreover, where a student is found to have compromised the integrity of an examination, giving her 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 her version of the incident, is not arbitrary and capricious (Appeal of John W. and Lorraine W., supra; Appeal of Thomas and Judith K., 30 Ed Dept Rep 245, Decision No. 12,450; Matter of Ford, 21 id. 393, Decision No. 10,730).

Respondent's determination was based on a thorough investigation. In particular, respondent submits detailed affidavits by other students. Student L.D. states in her affidavit that she personally observed the unauthorized program. She explains how the program was hidden to escape detection, requiring two minutes of scrolling to locate it, and how it was given a different name by each of the alleged cheaters. She names petitioner as one of the students who had the program on her calculator. Student F.E., who admitted to cheating, and who Ms. Hayes names as the person from whom petitioner copied her homework two weeks before the exam, supports L.D.'s statement. Initially she stated that petitioner had the program and used it to cheat. She later modified her statement to say that petitioner could have used it to cheat, but she wasn't sure.

Mr. Mix states in his affidavit that on January 22, 1998, a parent informed him that petitioner and three other students had developed a program and hidden it under games on their calculators. He then interviewed the alleged cheaters and several other students. He states that one student told him that she had overheard petitioner talking about how she had used the program during the exam, although she later recanted that statement. He also states that F.E. specifically told him during the investigation that petitioner had cheated on the exam, but did not question her about changes to her affidavit because he did not want to be accused of pressuring her.

Mr. Mix also compared all of the student's performance on Part I of the exam against their course average and 4th quarter average. The students accused of cheating scored well above their averages and, in general, much higher than the students who were not suspected of cheating. According to respondent, petitioner had an 83 course average and a 78 4th quarter average. Measured against the 100 she scored on Part I, this created a gap of 17 points and 22 points respectively. Other alleged cheaters also had large gaps, some in the 20-point range and as high as 36 points.

Additionally, I must note that in circumstances such as these it is difficult, if not impossible, to obtain direct evidence of cheating. The unauthorized program was apparently well hidden and easily deleted after the exam. It contained features to hide it from view when the teacher approached. Petitioner admits knowing of the existence of the program and the affidavits make it clear that the purpose of the program was to facilitate cheating on the exam. Petitioner, therefore, had knowledge of a plan that ultimately undermined the integrity of the exam. Where the integrity of an examination is compromised and a student is found to have been involved in related activities, giving the student a zero on the examination constitutes an appropriate sanction (Appeal of Wilhelm and Lynn R., 31 Ed Dept Rep 509, Decision No. 12716; Appeal of Thomas and Judith M.,supra). She was also given an opportunity to retake the test, which she declined. In light of petitioner's unusually high score, the student affidavits and detailed interviews, I cannot determine that respondent's determination was arbitrary, capricious or without rational basis.