Appeal of D.F. and N.F., on behalf of their son J.F., from action of the Board of Education of the Commack Union Free School District regarding grading.

Decision No. 16,624

(June 30, 2014)

Lamb & Barnosky, LLP, attorneys for respondent, Rita Fishman Sheena, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal the determination of the Board of Education of the Commack Union Free School District (“respondent”) regarding their son’s Geometry midterm examination grade. The appeal must be dismissed.

During the 2012-2013 school year, petitioners’ son, J.F., was a sophomore in respondent’s high school. Respondent asserts that, in response to an August 2012 memorandum from the State Education Department (“Department”), the district adopted the Department’s procedures concerning the use of communication devices during Regents examinations for its mid-year assessments (“cell phone rule”), which were administered during the week of January 21, 2013. According to respondent, the cell phone rule was taken verbatim from the Department’s August 2012 policy concerning the prohibition of student use and possession of communication devices, including cell phones, during the administration of State examinations. Like the Department’s policy, respondent’s cell phone rule provided that “[i]f you keep a cell phone or any of these items with you, your exam will be invalidated and you will get no score.”

On January 24, 2013, respondent administered, and J.F. sat for, the Geometry midterm examination in respondent’s high school cafeteria. During the examination, a proctor noticed an outline of a cell phone in the side-leg pocket of J.F.’s cargo sweatpants. According to respondent, the proctor asked J.F. if he had a cell phone in his pocket and J.F. replied, “[y]es,” but that it was “not on.” Another proctor approached J.F. and asked him the same question. J.F. said nothing and handed her his cell phone. According to respondent, the proctors asked J.F. to finish his midterm, in accordance with the cell phone rule. According to petitioners, J.F. completed his two-hour midterm believing that it would be graded and counted toward his final Geometry grade. At the end of the exam, the high school math department coordinator (“coordinator”) advised J.F. that he would receive a zero for the Geometry midterm because he brought his cell phone into the examination. The coordinator subsequently spoke to J.F.’s mother, who met with an assistant principal that afternoon.

On January 25, 2013, an assistant principal met with petitioners and J.F. According to respondent, during the meeting, J.F. admitted that he had a cell phone in his pocket during the Geometry midterm and that he knew he should not have had it with him in the testing room. He further admitted that he had placed his cell phone in a locker before his two prior midterms but did not do so for the Geometry midterm.

On February 7, 2013, petitioners met with respondent’s assistant superintendent and principal at petitioners’ request. According to petitioners, the assistant superintendent declined to modify the decision to give J.F. a zero on the Geometry midterm. This appeal ensued.

Petitioners assert that respondent’s decision to give J.F. a zero on the Geometry midterm examination was arbitrary and capricious and in violation of its disciplinary and non-discrimination policies. They claim that respondent violated the district’s disciplinary policy by failing to notify petitioners prior to giving J.F. a zero; failing to consider J.F.’s anecdotal record or consult with J.F.’s guidance counselor prior to “determining his punishment”; and failing to prove or allege that J.F. cheated on the midterm. Petitioners further contend that respondent violated its non-discrimination policy by “searching” only males during the examination and not “searching” other students during J.F.’s three other midterms that week. Finally, petitioners argue that respondent “capriciously and arbitrarily” searched students for cell phones during midterms. Petitioners seek to have J.F.’s Geometry midterm grade reinstated, validated, and counted toward his final Geometry grade.

Respondent denies any wrongdoing, including the allegations that any students were searched, and asserts that petitioners have failed to exhaust their administrative remedies. Respondent further asserts that the district acted reasonably in the adoption of the cell phone rule and enforcement of such rule during midterm examinations.

I will first address the procedural issues. Respondent argues that the appeal should be dismissed for failure to exhaust petitioners’ administrative remedies. Specifically, respondent maintains that, pursuant to Board Policy #1350, petitioners were required to appeal the February 7, 2013 determination of the “superintendent’s designate [sic]” to the board. However, while Board Policy #1350 establishes a complaint process, it is permissive rather than mandatory since it provides that a complainant “may appeal” a superintendent’s resolution to the board. Respondent has not articulated any requirement in statute, regulation, or board policy which would require that petitioners appeal to the board before exercising their right to initiate an appeal pursuant to Education Law §310 (see Appeal of A.P., 48 Ed Dept Rep 380, Decision No. 15,891; Appeal of Amara S., 39 id. 90, Decision No. 14,182; Appeal of Deleewerk, 37 id. 453, Decision No. 13,903). Moreover, the record contains no evidence of any written correspondence notifying petitioners of their right to appeal the determination or the existence of a rule or regulation that requires an appeal to respondent. Therefore, I decline to dismiss the appeal for failure to exhaust administrative remedies (see Appeal of Olka, 48 Ed Dept Rep 10, Decision No. 15,776; Appeal of Defonce, 34 id. 118, Decision No. 13,252).

The appeal, however, must be dismissed on the merits. Petitioners appear to claim that J.F. was denied due process because respondent failed to notify petitioners prior to giving J.F. a zero; to consider J.F.’s anecdotal record or consult with J.F.’s guidance counselor prior to “determining his punishment”; or to prove or allege that J.F. cheated on the midterm. Petitioners, however, are not entitled to a full evidentiary hearing under Education Law §3214, since this case involves a grade reduction, not a disciplinary suspension (Appeal of a Student With a Disability, 48 Ed Dept Rep 94, Decision No. 15,802, aff’d sub nom Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of Megan M., 38 id. 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293). The record indicates that petitioner N.F. met with an assistant principal following the examination to discuss the matter. Petitioners and their son also met with another assistant principal the next day and with the principal and assistant superintendent on February 7, 2013, to discuss the matter. Under these circumstances, I find that petitioners and J.F. received appropriate due process.

Petitioners also claim that respondent’s decision to give J.F. a zero for violating the cell phone rule was arbitrary and capricious. Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (see Education Law §1709[3]; Appeal of B.M., 46 Ed Dept Rep 550, Decision No. 15,592; Appeal of Shaver, 38 id. 570, Decision No. 14,096; Appeal of Krom, 37 id. 459, Decision No. 13,905). Education Law §1709(3) gives boards of education of union free school districts broad authority "to prescribe the course of study by which the pupils of the schools shall be graded and classified ....” 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 (Education Law §1709[3]; Appeal of a Student With a Disability, 48 Ed Dept Rep 94, Decision No. 15,802; aff’d sub nom Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526; Appeal of T.M. and A.M., 45 id. 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Schmitt, 39 id. 617, Decision No. 14,329). 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 after the student had an opportunity to present his version of the incident, is not arbitrary or capricious (see Appeal of a Student With a Disability, 48 Ed Dept Rep 94, Decision No. 15,802; aff’d sub nom Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of K.K. and E.K., 47 id. 301, Decision No. 15,703; Appeal of Thomas and Judith K., 30 id. 245, Decision No. 12,450).

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882). On the record before me, petitioners have failed to meet this burden.

According to respondent, the possession of a cell phone during testing affects the integrity of the test-taking process, and therefore, its rule against possession of cell phones during midterm and Regents examinations is reasonable. Petitioners have not demonstrated that respondent’s rule is arbitrary, unreasonable, or in violation of law, or that it was an abuse of discretion for respondent to deny J.F. academic credit for the Geometry midterm for violating its cell phone rule.

The record also demonstrates that petitioners and J.F. received numerous notices regarding respondent’s cell phone rule and the consequences for noncompliance with that rule prior to and on the day of the Geometry midterm exam. For example, on January 16, 2013, the assistant principal sent an email directing all homeroom teachers to read a statement to their students on January 17 and 18, 2013. The statement advised students that they were not allowed to bring any communication devices, including cell phones, with them during the administration of any midterm or Regents examination, and that “[i]f you keep a cell phone or any of these items with you, your exam will be invalidated and you will get no score.” On January 18, 2013, the assistant principal read a similar message over the public address system and a message to parents and students was posted on the high school’s website. This message was also sent via telephone and email to all high school students and parents on January 21, 2013. In addition, on the day of the Geometry midterm, multiple announcements were made by the proctors as students entered the cafeteria, reminding them not to bring their cell phones into the cafeteria. Before the test began, students were warned to put all personal belongings against the wall along the side of the cafeteria. Once the students were seated, a proctor announced the testing protocols on a microphone, including the cell phone policy, and that failure to comply would result in a grade of zero on the midterm assessment.

Moreover, as discussed above, petitioners and their son were given multiple opportunities to meet with school officials to discuss the incident and provide explanations. J.F. admitted that he left his cell phone in a locker during his two prior midterms, but did not do so for his Geometry midterm. Based on the record before me, I cannot conclude that the decision to give J.F. a grade of zero on the Geometry midterm was arbitrary, capricious, or unreasonable.

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

THE APPEAL IS DISMISSED.

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