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Decision No. 12,741

Appeal of EDITH M. HICKEY, on behalf of TONYA HICKEY, from action of the Board of Education of the Wayland Central School District, regarding student grading.

Decision No. 12,741

(July 2, 1992)

Harris, Beach & Wilcox, Esq., attorneys for respondent, James A. Spitz Jr., Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from action of the Wayland Central School District's Board of Education (respondent) regarding her daughter's final summer school grade in Global Studies II. The appeal must be dismissed.

Petitioner's daughter attended respondent's high school. During the 1989-90 school year, the student received a failing grade in Global Studies II and attended the 1990 summer session. On August 7, after three absences, the student walked out of class following a dispute with her teacher. Although the student was suspended by the principal for the remainder of the summer session, respondent agreed to provide her with a tutor to complete the course. Nonetheless, the student failed both the final examination and the course. Petitioner commenced this appeal.

Petitioner alleges that her daughter's grade in Global Studies was improperly calculated and that she should have received a 71% in the course instead of a failing grade. Regarding her daughter's failing grade during the school year, petitioner argues that respondent's policy requiring students to earn a grade of 70% to pass a course, while other districts only require a 65%, is unreasonable.

Respondent asserts that to the extent petitioner is appealing her daughter's grade for the 1989-90 school year, the appeal is untimely. Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies. In any case, respondent asserts that the student's final grades were proper.

Regarding the procedural issues, respondent argues that this appeal must be dismissed for failure to exhaust administrative remedies. Although petitioner apparently seeks review of the action of the board of education regarding her daughter's grade, the record indicates that other than some informal discussions with various school board members, she never sought or obtained the board's formal review of her daughter's grade. Since petitioner appears to challenge the board's action, but never requested its review prior to commencing this appeal, the appeal is premature and must be dismissed.

To the extent respondent argues that petitioner's challenge of her daughter's Global Studies grade during the regular school year is untimely, notably, petitioner is not specifically seeking review of her daughter's year end grade. Instead, she contends that, because neighboring school districts only require a grade of 65% to pass a course, respondent's requirement that students receive a 70% is unfair. Since petitioner is not challenging her daughter's year end grade, but challenges the district's underlying policy, I find her appeal of the policy timely.

Although the petition is dismissed on procedural grounds, it would have been dismissed on the merits as well. Decisions regarding student grading rests initially with the classroom teacher and ultimately with the board of education (Education Law '1709(3)). In such appeals, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Timbs, 29 Ed Dept Rep 392, 394).

To support the contention that her daughter should have received a passing grade, petitioner submits various grades her daughter received on her assignments and papers in the course that, according to petitioner's calculations, add up to a passing grade. Notably, petitioner weighs every grade equally while respondent weighted the same grades differently based on the nature of the assignments. Petitioner also argues that her daughter's final examination grade should have been higher. In response to her concerns, both respondent's superintendent and the department chairperson independently reviewed the student's test score and arrived at a lower grade than the classroom teacher. Education Law '1709(3) grants school boards the final authority in assigning student grades. Barring a finding that the determination was arbitrary, capricious or otherwise unreasonable, it will not be set aside (Appeal of Kriaris, 31 Ed Dept Rep 353, 355). Because I find no evidence that the district abused its discretion in assigning this student's grade, there is no basis to substitute my judgment for that of the local school authorities (Appeal of Hermus, 30 Ed Dept Rep 404; Appeal of Timbs, 29 id. 392). For the same reasons, I do not find that respondent abused its discretion by designating 70% as the minimum passing grade while neighboring districts allegedly adopted a 65% as its minimum passing grade.

Petitioner also implies that her daughter, once expelled from class, received a failing grade because the tutor assigned to her did not adequately prepare her for the test. A board of education is responsible for providing every student with genuine opportunities to acquire the knowledge necessary to pass the courses offered to its students. Although respondent's board of education was not obligated to provide this student with a tutor over the summer, once it did so, it was required to offer genuine instructional opportunities to assist the student in passing her course. Although petitioner argues that the tutor was inadequately prepared to assist her in preparing for her final examination, she presents no evidence to support her contention. Accordingly, petitioner's claim that her daughter's failure in the course resulted from a failure in the provision of education is not supported by the record.