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Decision No. 15,589

Appeal of a STUDENT WITH A DISABILITY, by her guardian, from action of the Board of Education of the Springville-Griffith Institute Central School District regarding the denial of course credit.

Decision No. 15,589

(June 4, 2007)

Hodgson Russ LLP, attorneys for respondent, Ryan L. Everhart and Dylan A. Pauley, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Springville-Griffith Institute Central School District (“respondent”) denying course credit to her great-niece for courses taken while she was a student at respondent’s high school, as well as courses taken at schools she attended prior to transferring to respondent’s high school.  The appeal must be dismissed.

By order of the Surrogate’s Court, petitioner and her husband became the legal guardians of their great-niece after her mother’s death in 1993.  Additionally, petitioner and her husband were granted legal guardianship of their great-niece as an adult by the Surrogate’s Court on August 31, 2004.  Petitioner’s great-niece has been minimally diagnosed with cerebral palsy, emotional problems, seizure disorder and slow development.  Petitioner’s great-niece is borderline mentally retarded.

Petitioner’s great-niece has attended numerous schools and temporarily resided in at least two different group homes during her education.  In June 2003, she participated in graduation ceremonies and received an IEP (Individualized Education Program) diploma from Pioneer Central School District.  Subsequent to receiving her IEP diploma the student attempted to continue her education at Pioneer Central School District, but disputes over the content of the student’s IEP and an allegation of physical abuse at the group home in which she was residing, led petitioner to enroll her great-niece at respondent’s high school beginning September 2005.  The student was 20 years and 9 months old at the time of enrollment at respondent’s high school.

To assist her great-niece to obtain a local diploma, petitioner requested that the principal of respondent’s high school review the student’s transcript to see if transfer credit could be awarded to her for courses taken at the schools she previously attended.[1]  Petitioner was notified by letter dated October 6, 2005 that the principal determined that the student earned 10.75 credits toward a local high school diploma.  Petitioner disagreed with this determination and requested a meeting with the principal.  A meeting was held on October 27, 2005.

Following the meeting, the principal further investigated why the student was not awarded credit for courses she took during the 1999-2000 school year at Lockport High School.  He was told by the student’s guidance counselor at Lockport High School that the student was placed in self-contained, non-credit bearing courses and that the focus of her educational program was to meet her IEP goals and objectives.  In February 2006, the principal reviewed the student’s work from Baker Victory Services which the student attended from April 2001 through the end of the 2001-2002 school year.  The principal determined that her work was not at commencement level and therefore that he could not award her any additional credit toward a local diploma.

By letters dated November 1, 2005 and June 1, 2006, petitioner again requested reviews of her great-niece’s transcripts.  For reasons not made clear, it appears that the principal’s determinations made after the October 27, 2005 meeting were not shared with petitioner.

On July 7, 2006, the student received her final report card from respondent’s high school.  On July 11, 2006 petitioner wrote to the principal requesting a change on the student’s report card regarding her math and science credits within her vocational program.  The principal responded by letter dated August 15, 2006 refusing to change the report card.

On August 26, 2006 petitioner appealed to respondent.  By letter dated September 30, 2006, respondent’s superintendent informed petitioner that her great-niece was not eligible to receive a local diploma.  This appeal ensued.

Petitioner asserts that respondent improperly failed to award the student credits she earned and requests that I award credits to the student for her pre-transfer course work, as well as credits for math and science not reflected in the student’s final report card.  Additionally, petitioner requests that I waive the requirement that the student pass Regents or RCT exams to obtain a local diploma.  Alternatively, petitioner requests that I direct respondent to allow the student to take the RCT or Regents exams if compensatory education is ordered in petitioner’s pending special education hearing.  Finally, petitioner requests that I disregard respondent’s answer because it was filed one day late.

Respondent argues that some or all of petitioner’s claims are untimely and that some or all of petitioner’s claims are outside my jurisdiction.

I will first address the procedural issues. Petitioner requests that I disregard respondent’s answer because it was served one day late.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefore (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (seeAppeal of the City School Dist. of the City of Plattsburgh, 45 Ed Dept Rep 350, Decision No. 15,345; Appeal of Scanlon, et al., 41 id. 114, Decision No. 14,632; Appeal of Bronico, 32 id. 54, Decision No. 12,755).

Respondent received an extension of time until December 4, 2006 to submit its answer.  The answer was improperly served at the office of an advocacy group petitioner is associated with.  Petitioner received the answer from the advocacy group on December 2, 2006.  On December 5, 2006, respondent re-served the answer by placing another copy in the mail to petitioner’s home address.  Respondent admits that they served petitioner at the wrong address but states that they re-served the answer immediately upon being notified that they served the wrong address.  Additionally, petitioner admits that she received the answer on December 2, 2006 from a colleague at the advocacy group.  Because petitioner was already in receipt of the answer there is no prejudice to her as a result of respondent’s error.  Accordingly, I have considered respondent’s answer in deciding this appeal.

Respondent requests that I disregard petitioner’s reply, alleging that petitioner has used the reply to present new and additional information to further support the arguments contained in her petition.  The purpose of a reply is to respond to new material or affirmative defenses set forth 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 in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Additionally, respondent argues that petitioner’s appeal is time-barred An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeals of Sitaras, et al., 43 Ed Dept Rep 434, Decision No. 15,044; Appeal of Malek, 41 id. 312, Decision No. 14,697).  Petitioner states in her verified complaint that she received a response from her appeal to respondent on October 3, 2006.  The record contains a copy of the September 30, 2006 letter from respondent’s superintendent.  Therefore, I will not dismiss this appeal which was commenced October 31, 2006 on timeliness grounds.

Turning to the merits, petitioner asserts that respondent improperly failed to award the student credits she earned.  Section 100.5 (d)(5) of the Commissioner’s Regulations provides in pertinent part:

Transfer credit is awarded for work done outside the registered New York State high school awarding the credit.

(i) The principal shall evaluate the transcript or other records of a transfer student enrolling in a New York State high school.  Based on the student’s transcript or other records,the principal shall award the appropriate units of transfer credit towards a high school diploma.

(a) The principal shall grant transfer credit for all credit awarded by any New York State registered public or nonpublic high schools.

(b) The principal, after consultation with relevant faculty, may award transfer credit for work done at other educational and cultural institutions and for work done through independent study.  The decision as to whether or not to award transfer credit for work done at educational institutions other than New York State registered high schools shall be based on whether the record indicates that the work is consistent with New York State commencement learning standards and is of comparable scope and quality to thatwhich would have been done in the school awarding the credit.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).

Petitioner has failed to meet that burden here.  The principal’s affidavit describes his review of the student’s school record from the Pioneer Central School District and also states that he agreed to award the credits determined by the principal of the Pioneer Central School District, even though several credits were awarded in quarter increments -- not respondent’s usual practice.  The principal also described a discussion he had with the student’s guidance counselor from Lockport High School wherein he learned that the student was placed in self-contained, non-credit bearing courses which did not meet commencement level standards.  Finally, the principal described his review of the student’s work from Baker Victory Services which he found not to be at commencement level.

Additionally, the principal’s determination not to change the student’s final report card to reflect credit for the student’s math and science portion of her culinary arts program was explained in his August 15, 2006 letter to petitioner.  In that letter, the principal points out that the student only completed one year of a two-year culinary arts program, did not complete the required first two years of high school math and science courses and had not successfully completed the required New York State assessments in math and science.

Petitioner also requests that I overrule the decision of respondent and either award credit to the student myself or waive the requirement that she pass Regents or RCT exams in order to obtain a local diploma.  As discussed, I do not find that respondent’s decision with regard to the award of transfer credits was arbitrary or capricious and I therefore will not substitute respondent’s judgment in this matter, nor am I authorized to ignore the statutory and regulatory requirements imposed on all students to earn a New York State high school diploma.

Finally, petitioner requests that I direct respondent to allow the student to take the RCT or Regents exams if compensatory education is ordered in petitioner’s special education hearing.  Attached to petitioner’s reply is a December 4, 2006 decision of an Impartial Hearing Officer (IHO).  In that decision, the IHO ordered three months of compensatory education for petitioner’s great-niece.  Petitioner’s assistance to her great-niece in attempting to obtain a New York State high school diploma is laudable, however, it is well settled that the Board of Education has the power to place students in particular classes (Appeal of D.R., 43 Ed Dept Rep 409, Decision No. 15,035; Appeal of M.F. and T.L., 44 id. 467, Decision No, 15,234).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of D.R., 43 Ed Dept Rep 409, Decision No. 15,035; Appeal of M.F. and T.L. 44 id. 467, Decision No, 15,234). 

As previously discussed, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner submits no evidence that respondent has acted in an illegal, arbitrary or capricious manner and therefore I will not substitute my judgment for that of respondent’s with respect to the student’s three months of compensatory education.

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

THE APPEAL IS DISMISSED.

END OF FILE



[1] The principal of a New York State high school is authorized to conduct such a review in accordance with §100.5(d)(5)(i) of the Commissioner’s regulations.