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Decision No. 15,802

Appeal of A STUDENT WITH A DISABILITY by his father, from action of the Three Village Central School District regarding a grade determination.

Decision No. 15,802

(August 1, 2008)

Lamb & Barnosky, LLP, attorneys for respondent, Eugene R. Barnosky, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Three Village Central School District (“respondent”) regarding 11 grades of zero assigned to his son as a penalty for cheating.  The appeal must be dismissed.

Petitioner’s son is a student with a disability attending respondent’s high school.  During the 2007-2008 academic year, he was a junior enrolled in many advanced placement classes.  As an accommodation for his learning disability, the student’s Individualized Education Program (“IEP”) allowed him computer-assisted testing conditions with extended time and rest periods.  The extended testing time was only to be made available during a resource room period with supervision by a special education teacher.

The student’s advanced placement physics teacher became concerned that the student’s exams and quizzes were not being returned the same day they were given.  Additionally, the physics teacher noticed that the student’s knowledge of the subject matter in class was not aligned with his near perfect test scores.  On November 16, 2007, the student failed an unannounced quiz given in his advanced placement physics class.  The physics teacher then shared his concerns with the assistant principal.

With the superintendent’s approval and knowledge, the assistant principal began monitoring the student’s network folder and found tests in various stages of completion.  In late November, the assistant principal and the physics teacher observed the student working on an advanced placement physics assessment, through a computer monitoring system, during the student’s resource room time.  At the end of the resource room, the assessment was incomplete and contained wrong answers.  However, the next day the assessment was submitted fully completed and with correct answers.

The assistant principal then monitored the student’s computer network folders as well as the top 10 students in the junior and senior classes.  On January 15, 2008, the assistant principal prepared a memo to the superintendent describing the process used by the student.  On January 22, 2008, the principal and assistant principal met with the student and his parents, making them aware of the investigation into the student’s alleged cheating.  On January 24, 2008, the school district’s computer programmer prepared a report stating that testing protocols and academic integrity were violated when the student copied tests from his special education teacher’s memory stick to his student folder, enabling him to change his test answers during non-school hours and in an unsupervised setting.

On February 4, 2008, the principal and assistant principal again met with the student and his parents and explained that they had concluded their investigation and that the principal had decided that the student had cheated.  He received grades of zero on nine tests and two assignments.

On February 15, 2008, petitioner met with the superintendent to discuss the decision.  Petitioner was not allowed to question the computer programmer at this meeting, although petitioner specifically asked that he be present.  By letter dated February 25, 2008, the superintendent confirmed the decision to change 11 of the student’s grades to zero.  This appeal ensued. Petitioner’s request for a stay was denied on March 18, 2008.

Petitioner contends that the collection of computer data and its subsequent analysis were not performed in accordance with the federal rules of evidence and requests that I therefore find respondent’s decision arbitrary and capricious and that I order his son’s grades restored.  Petitioner further contends that his inability to question the computer programmer during the February 15, 2008 meeting with respondent denied his son due process.  Petitioner also requests that I find that the conduct of the physics teacher, the assistant principal and the superintendent was unprofessional and improperly interfered with the investigation of his son’s alleged cheating.

Respondent argues that its determination was not arbitrary, capricious or unreasonable and that petitioner has failed to establish a clear legal right to the relief requested.

Initially, I must address a procedural issue.  Petitioner submitted a response to respondent’s memorandum of law claiming that respondent’s memorandum of law raised new assertions that were not part of the pleadings.  Respondent requests that I disregard this additional submission as it was submitted without my prior approval, in violation of §276.5 of the Commissioner’s regulations.  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Madison and Maudlin, 45 Ed Dept Rep 415, Decision No. 15,370; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329; Appeal of Andrews, et al., 45 id. 248, Decision No. 15,312).

Petitioner’s reply to respondent’s memorandum of law does not raise new issues nor introduce new exhibits to the claims originally raised in the appeal.  Rather, petitioner used the reply to argue that respondent’s memorandum of law raised new assertions that were not part of the pleadings.  Additionally, much of petitioner’s reply to respondent’s memorandum of law restates the allegations described in his petition.  Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, I have accepted this reply for consideration.   

The appeal, however, must be dismissed on the merits.  Petitioner claims that he was denied due process because he was not given the opportunity to confront and question the school district’s computer programmer at the February 15, 2008 meeting with the superintendent.  Petitioner, however, is not entitled to a full evidentiary hearing under Education Law §3214, since this case involves grade reductions, not a disciplinary suspension (Appeal of Megan M., 38 Ed Dept Rep 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293).  Petitioner and his son met with the principal and assistant principal twice to discuss the matter.  Petitioner also presented his appeal to the superintendent.  Under these circumstances, I find that petitioner received the appropriate due process.

Petitioner also argues that the computer evidence does not conform to the Federal Rules of Evidence.  It has been established that a case regarding a grade reduction does not require a hearing (Appeal of Megan M., 38 Ed Dept Rep 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293).  Even when a hearing is held, the hearing officer is not required to strictly adhere to the rules of evidence (Appeals of M.S., Sr. and M.D., 41 Ed Dept Rep 285, Decision No. 14,687).  Accordingly, there is no requirement that the computer evidence relied on by respondent conform to the Federal Rules of Evidence.

I will not substitute my judgment for that of school officials on a student’s grade absent a clear showing that the determination was arbitrary, capricious or unreasonable (Appeal of K.K. and E.K., 47 Ed Dept Rep 301, Decision No. 15,703; Appeal of John W. and Lorraine W., 37 id. 713, Decision No. 13,965).  Where a student is found to have compromised the integrity of even one portion of an examination, a grade of zero, after a full investigation by the school district of the circumstances surrounding the grade, and once a student has had an opportunity to present his version of the incident, is not arbitrary or capricious (Appeal of K.K. and E.K., 47 Ed Dept Rep 301, Decision No. 15,703; Appeal of Thomas and Judith K., 30 id. 245, Decision No. 12,450).

In this case, the documentation relied on by respondent was gathered over several months of investigation.  The investigation included a network folder comparison to other top students in the school and a review by the school district’s computer programmer.  Also, the assistant principal and the physics teacher observed the student working on an advanced placement physics assessment during his resource room period, which differed from the assessment he submitted for grading on the very next day.  Additionally, petitioner and his son were given opportunities to meet with the principal and assistant principal to provide explanations.  Based on the record before me, I cannot conclude that the decision to change the grades to zero was arbitrary, capricious or unreasonable.

In view of this disposition, I need not discuss the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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