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Decision No. 15,719

Appeal of LISA R. JOBSON, on behalf of her son RYAN, from action of the Board of Education of the Onteora Central School District regarding class rank.

Decision No. 15,719

(February 1, 2008)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Bryn S. Pace, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Onteora Central School District (“respondent”) regarding her son’s class rank.  The appeal must be dismissed.

Petitioner’s son, Ryan, transferred to respondent’s Onteora Middle-High School in September 2004, at the beginning of his sophomore year.  Previously, he attended Woodstock Day School (“WDS”), a nonpublic school.  Upon transfer, the district obtained Ryan’s WDS transcript containing narrative academic performance evaluations instead of letter or numerical grades.  Accordingly, Ryan was assigned “P”s, or passing grades, for his ninth grade coursework.

In September 2006, respondent’s Onteora Middle-High School began calculating cumulative grade point averages and class ranks for the 2007 graduating class based on each student’s last six semesters of school.  Any student enrolled in the district by tenth grade was eligible for class ranking.

Because Ryan had been assigned “P” grades for his ninth grade coursework, the district requested a final transcript from WDS, which it received on September 15, 2006.  The final transcript contained both letter grades and grade point grades, both of which could have been converted to numerical grades corresponding to respondent’s grading system.  Accordingly, the district contacted WDS, which advised it to use Ryan’s letter grades to calculate his grade point average for ninth grade.  By using the district’s grade conversion scale, the district calculated Ryan’s cumulative grade point average, which placed him tenth in his class.  On October 11, 2006, class ranks were announced.

On December 14, 2006, WDS sent a corrected transcript to the district reflecting an increase in Ryan’s science grade.  By letter dated January 12, 2006, petitioner requested that Ryan’s grade point average and class rank be amended, which the district declined to do.  Petitioner appealed the determination to respondent which did not change Ryan’s grade or class rank.  This appeal ensued.

Petitioner claims that the district altered Ryan’s grades to lower his grade point average and prevent him from obtaining the valedictorian award.  She argues that respondent’s actions were arbitrary, capricious and racially motivated.  Petitioner seeks a determination that her son was first in his graduating class.

Respondent contends that the class rank determination was not arbitrary or capricious and that the decision not to revise Ryan’s grade point average was reasonable.  Respondent also claims that the petition is untimely and moot and should be dismissed for failure to join necessary parties.

Respondent objects to petitioner’s reply on the grounds that it is not verified and contains material that should have been in the petition.  Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a reply is not properly verified, as in the instant case, it must be disregarded (Appeal of Hazeltine, 45 Ed Dept Rep 479, Decision No. 15,387; Appeal of Perez, 42 id. 71, Decision 14,779; Appeal of Nocerino, 40 id. 244, Decision No. 14,472).  Furthermore, 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).

Respondent also argues that the appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Meringolo, 45 id. 128, Decision No. 15,281; Appeal of Kelly, 45 id. 38, Decision No. 15,253).

In this case, at the very least, the selected valedictorian of the 2007 graduating class would be affected if I were to declare Ryan first in his class.  Accordingly, that student is a necessary party to this appeal.  Such student, however, was not named in the caption nor served with the notice of petition or petition.  Accordingly, the appeal must be dismissed for lack of joinder.

The appeal must also be dismissed as untimely.  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). 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 appealed the class rank determination to respondent on December 12, 2006 and again at its June 5, 2007 meetings, at which time it refused to change the ranking.  Petitioner commenced this appeal on July 19, 2007, well after the 30-day period and offers no reasonable excuse for her delay.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  The determination of class rank and the designation of valedictorian are decisions for the local board of education which should not be altered unless arbitrary or irrational (Appeal of Lynch, 42 Ed Dept Rep 398, Decision No. 14,892; Appeal of Armella and MacIntryre, 40 id. 451, Decision No. 14,525; Appeal of Perino, et al., 36 id. 305, Decision No. 13,732).  Here, respondent has a policy of determining class rank based on the student’s weighted cumulative grade point average from grades nine to eleven.  Moreover, it is respondent’s policy and practice to convert a transfer student’s grades to correspond to respondent’s grading system.  Upon the advice of WDS, respondent converted Ryan’s WDS letter grades to numerical grades in accordance with the district’s grade conversion scales.  I do not find this policy and practice to be arbitrary or irrational.  Nor do I find it unreasonable that respondent did not recalculate class rank based on Ryan’s revised transcript, which was received after the class ranking and valedictorian award were determined and announced.

     To the extent petitioner alleges racial discrimination, I find petitioner has not met her burden of proof.  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 fails to provide any substantial evidence to support her claim of racial discrimination.

THE APPEAL IS DISMISSED.

END OF FILE