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Decision No. 14,228

Appeal of DOROTHEA ADRIATICO, on behalf of her daughter STEPHANIE, from action of the Board of Education of the Greenport Union Free School District regarding an attendance policy.

Decision No. 14,228

(October 13, 1999)

Long Island Advocacy Center, Inc., attorneys for petitioner, Deborah R. Monheit, Esq., of counsel

Guercio & Guercio, attorneys for respondent, Vanessa Sheehan, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Greenport Union Free School District ("respondent") to deny her daughter, Stephanie, course credit due to excessive absences. The appeal must be sustained.

Respondent has a minimum attendance policy which provides that credit will be withheld and the student given a failing grade when a student exceeds 30 absences from a full year course. The policy further provides that parents will be notified by mail when a student reaches half of the maximum number of absences allowed for a course and that a copy of such notification will be issued to the teacher. The policy also states that a parent-student-administrator conference will be held when a student reaches two-thirds of the maximum allowable absences. In addition, the policy provides that when a student exceeds the maximum allowable absences for a course, the teacher will cease evaluating the student's assignments and examinations for the course.

During the 1998-99 school year, Stephanie was a ninth grade student at Greenport High School. As part of her coursework, Stephanie was enrolled in Earth Science, Math 1, Global Studies and English, all full year courses.

On November 9, 1998, petitioner was first notified by letter that respondent was concerned over the number of days Stephanie had been absent from class. According to the letter, Stephanie had already exceeded 30 absences in three classes and was within two days of exceeding 30 absences in her six remaining classes.

From December 1998 through January 1999 respondent sent petitioner four additional letters with updated information on the number of absences Stephanie had accumulated per class. Within this correspondence petitioner was informed that the district’s attendance policy allowed only 30 absences in a full-year course, that Stephanie would not receive credit for courses in which she had more than 30 absences, and, that she should schedule an appointment with Stephanie’s guidance counselor to discuss the matter. There is no evidence in the record that petitioner contacted respondent in response to these letters. By December 1998, Stephanie had more than 30 absences in all of her classes.

Thereafter, Stephanie continued to attend class and her assignments and examinations were evaluated through the end of the school year up until the final examination period. Although the district has refused to issue fourth quarter grades to Stephanie, the record indicates that Stephanie was passing all four of the classes at issue through the end of the fourth quarter and prior to the final examinations period.

At the end of the school year, respondent’s high school principal realized that Stephanie’s work had been evaluated throughout the school year even though she had exceeded respondent’s attendance policy absence limit in the beginning of the school year. On June 16, 1999 he issued a memorandum to faculty advising them to allow Stephanie to submit assignments and take exams, but not to evaluate her work. In addition, he stated that Stephanie was to receive no credit on her report card for every marking period and final exam that occurred after she exceeded the absence limit.

On June 18, 1999 Stephanie took the Global Studies examination. On that same date, when she went to take the Earth Science examination she was informed by the school principal that while she would be permitted to take her final examinations, they would not be graded. Stephanie became upset, left the school, and did not take her remaining final examinations.

Respondent refused to evaluate Stephanie’s Global Studies examination, issue grades for Stephanie for the fourth marking period or allow her to take makeup final examinations. Respondent further denied Stephanie course credit for all of her courses. This appeal ensued.

On July 22, 1999, I granted petitioner’s request for interim relief in part and ordered respondent to evaluate and issue a Global Studies final examination grade and administer and grade final examinations and/or Regents examinations for Earth Science, Math 1 and English for Stephanie. As of the date of this decision Stephanie has taken final examinations in Global Studies, Math 1 and English. She has not taken the Regents Examination in Earth Science.

Petitioner contends that respondent’s attendance policy is illegal on its face because it imposes an academic penalty for lack of attendance by requiring that a student receive a failing grade when the student exceeds 30 absences in a class. Petitioner also argues that respondent’s attendance policy as applied to Stephanie is arbitrary and capricious because, although Stephanie had exceeded the 30 day attendance requirement in all of her classes by December 1998, respondent continued to evaluate her assignments and examinations up until the final examination period. As a result of respondent’s conduct toward Stephanie during the course of the school year, petitioner maintains that respondent waived its right to withhold her fourth quarter grades, refuse to evaluate her final examinations, or deny her course credit. For the same reasons, petitioner also maintains that respondent is guilty of laches. Petitioner requests that I direct respondent to: (1) administer the Regents Examination in Earth Science to Stephanie at no cost to petitioner; (2) issue fourth quarter and final grades for Stephanie and (3) provide Stephanie credit for Earth Science, Math 1, Global Studies and English. Petitioner further requests that I find respondent’s attendance policy in violation of New York State Education Law.

Respondent maintains that its attendance policy is legal, with the possible exception of the "failing grade" provision which it acknowledges is problematic and has never been implemented. Respondent also argues that its attendance policy was implemented in a manner consistent with Commissioner’s decisions and the State Education Department’s Attendance Policy Field Memorandum dated August 1995. Respondent submits that Stephanie received a copy of the attendance policy contained in the student handbook and is therefore charged with knowledge of the contents therein. Further, respondent states that a failure on its part to apply its attendance policy in this case would amount to a preference and reward bestowed upon a student for her lack of attendance. Respondent also argues that the doctrines of waiver and laches cannot be applied against respondent. Finally, respondent submits that in light of the fact that Stephanie chose not to take three of her final examinations, she is not entitled to a makeup examination in those courses and that, therefore, this matter is moot.

As a preliminary matter, petitioner offers new allegations in her reply and her memorandum of law contains a new exhibit. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been included in the petition (Appeal of Breud, et al., 38 Ed Dept Rep 748, Decision No. 14,133; Appeal of John W., 37 id. 713, Decision No. 13,965; Appeal of Ehnot, 37 id. 648, Decision No. 13,948). Therefore, while I have reviewed petitioner’s reply, I have not considered those portions that contain new allegations that are not responsive to new material or affirmative defenses set forth in the answer. Likewise, I note that a memorandum of law may not be used to belatedly add assertions or exhibits which are not part of the record (Appeal of O’Shaughnessy, 35 Ed Dept Rep 57, Decision No. 13,464; Appeal of Coombs, 34 id. 253, Decision No. 13,301; Appeal of the Bd. of Educ., Tuxedo Union Free School District, 33 id. 626, Decision No. 13,171). Accordingly, in making this determination I have not considered the exhibit improperly included in petitioner’s memorandum of law.

Respondent argues that because Stephanie voluntarily chose not to take her final examinations, she is not entitled to participate in makeup exams, and the matter is, therefore, moot. In support of this argument, respondent cites a prior decision in which Commissioner Sobol upheld a district’s refusal to administer a makeup examination and assignment of a zero for the exam to a student found to have intentionally and voluntarily absented himself from the exam to gain an unfair advantage over other students who had taken the exam on the scheduled date (Appeal of Augustine, 30 Ed Dept Rep 13, Decision No. 12,375). However, the facts in this case are distinguishable from those present in Augustine. As is set forth more fully below, I find that Stephanie’s failure to take her final examinations was not purely an act of her own volition, but rather was caused in part by respondent’s failure to properly implement its attendance policy. Therefore, I refuse to dismiss the matter as moot.

Turning to the merits, the Commissioner of Education will not ordinarily substitute his judgment for that of a board of education with regard to a student’s grade absent a clear showing that the board’s determination was arbitrary, capricious or unreasonable (Appeal of Kroll, 35 Ed Dept Rep 372, Decision No. 13,575; Appeal of Timbs, 29 id. 392, Decision No. 12,331; Appeal of Burns, 29 id. 103, Decision No. 12,235). In addition, a board of education may adopt a policy requiring a minimum attendance for students to receive academic credit (Appeal of Pasquale, 36 Ed Dept Rep 290, Decision No. 13,727; Appeal of Hansen, 34 id. 235, Decision No. 13,292; Appeal of Ackert, 30 id. 31, Decision No. 12,383). However, once a district adopts a policy, the procedures embodied in that policy must be adhered to (See, Appeal of K.D., 37 Ed Dept Rep 702, Decision No. 13,962; Appeal of Pronti, 31 id. 259, Decision No. 12,636; Appeal of Nuttall, 30 id. 351, Decision No. 12,491; Appeal of Brenner, 28 id. 402, Decision No. 12,153).

Recognizing the importance of early parent involvement and its correlation to improved student attendance, respondent adopted a policy which requires parental notification as well as a parent-student-administrator conference before a student exceeds the maximum allowable absence limit and is denied course credit. The record in this case clearly evinces respondent’s continuous failure to properly implement the requirements of its own policy. First, respondent failed to notify petitioner by mail when Stephanie reached half of the maximum allowable absences in each course as required by its policy. Instead, respondent waited until Stephanie had either exceeded the absence limit or was within a few days of exceeding the limit. Second, the policy indicates that a parent-student-administrator conference will be held when a student reaches two-thirds of the maximum allowable absences. There is no evidence in the record that respondent satisfied this requirement. Accordingly, I find that respondent’s failure to follow its own policy essentially precluded petitioner from having any meaningful opportunity to make a difference in Stephanie’s attendance record at an early stage.

Furthermore, respondent’s policy indicates that when a student exceeds the attendance requirements for a course, his or her teacher will cease evaluating the student's assignments and examinations. Generally, a school district may stop grading a student after determining that the student has violated its attendance policy (Appeal of Shepard, 31 Ed Dept Rep 315, Decision No. 12,651). However, in this case respondent concedes that Stephanie’s work had been evaluated up to the final examination period, even though she had already exceeded the maximum number of absences permitted under respondent’s attendance policy in December of 1998. Respondent submits that it should not be prohibited from prospectively implementing its attendance policy due to errors made by Stephanie’s teachers who continued to grade Stephanie’s assignments and examinations throughout the school year in contravention of respondent’s attendance policy. Respondent suggests that district administrators were not aware of the fact that Stephanie continued to be evaluated by her teachers after she had exceeded the attendance policy absence limit, and that once they were made aware of this error, they took corrective action. I find that the failure to follow respondent’s attendance policy extended well beyond Stephanie’s teachers. The record demonstrates that there was a district-wide failure to properly implement respondent’s attendance policy.

As set forth above, respondent’s policy imposes certain parental notification requirements on district administrators, not teachers. In fact, respondent’s secondary school principal and its superintendent signed the late notification letters that were sent to petitioner. In addition, Stephanie’s third quarter report card, issued by the high school, specifically states the number of Stephanie’s absences per class and awards Stephanie grades for those classes despite the fact that she had already exceeded the maximum number of absences permitted under respondent's attendance policy. In light of these facts, district administrators should have known that Stephanie continued to be evaluated after she exceeded the attendance policy absence limit, but failed to take action until the final examination period. I remind both respondent board and the district's administrators that they have an affirmative obligation to ensure that school teachers and other district personnel fully understand the official policies of the district and consistently implement such policies. Likewise, as I have stated previously, if school district officials are to demand adherence to district rules, they must be vigilant in their own compliance with those same rules (Appeal of K.D.; supra).

I do not find the cases cited by respondent for the proposition that equitable estoppel does not apply against a governmental subdivision controlling under the facts in this case. Given the pervasive failure of respondent’s teachers and administrators to properly implement its attendance policy, I find respondent’s "last-minute" application of the same to be unreasonable. Therefore, based on the unique facts presented in this record, I will substitute my judgment for that of respondent.

Finally, a district may not artificially reduce the grade actually earned on an assignment or examination as a penalty for exceeding an attendance policy absence limit (Application of a Child with a Handicapping Condition, 32 Ed Dept Rep 83, Decision No. 12,766; Appeal of Burns, supra; Appeal of Shannon, 26 id. 218, Decision No. 11,733). Therefore, I find that portion of respondent’s attendance policy that automatically imposes a failing grade upon students who violate the policy invalid.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent administer the Regents Examination in Earth Science at no cost to the petitioner at the next available opportunity; issue grades for Stephanie in Earth Science, Math 1, Global Studies and English for the fourth quarter and calculate a final grade in those courses; award Stephanie credit for each course in which she earns a final passing grade; and

IT IS FURTHER ORDERED that respondent’s attendance policy be modified in accordance with this decision and that respondent provide me with a copy of the policy as modified within thirty (30) days of receipt of this decision.

END OF FILE