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Decision No. 12,947

Appeal of FREDRICA ZINKOWSKI, on behalf of her son, Dale A. Zinkowski, from action of the Board of Education of the Central Islip Union Free School District, relating to withdrawal from a course.

Decision 12,947

(June 9, 1993)

Pelletreau & Pelletreau, attorneys for respondent, Kevin A. Seaman, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to permit her son to withdraw from Math 12X. The appeal must be dismissed.

Petitioner's son, a twelfth grade student in respondent's high school, has been enrolled in Math 12X since the beginning of the 1992-93 school year. In or about the week of October 12, 1992, the district forwarded to petitioner a progress report which indicated that her son received "test failures" in Math 12X. Thereafter, on October 22, 1992, petitioner attended "Open School Night" and met with her son's math teacher. Petitioner claims that, at that time, the math teacher told her that her son was having trouble in Math 12X. Petitioner further claims that they agreed that her son should drop Math 12X and take some other elective. The high school principal, however, denies that the student's math teacher told petitioner that her son should drop Math 12X and instead alleges that the math teacher advised petitioner that he was available to provide extra help to her son. The principal further alleges that the teacher offered extra help at certain set times and also offered to accommodate the student's schedule.

On October 23, 1992, petitioner contacted the head of guidance and requested a form to withdraw her son from Math 12X. According to petitioner, the head of guidance assured her that if the paperwork took too long, he would make sure an "F" grade was removed from her son's record.

On November 2, 1992, in the ninth week of the school's ten week marking period, petitioner submitted an "Application for Program Change Form." The student's Math 12X teacher noted on the form that the student "could pass if he tried to study and worked in class, I don't feel he has made a fair effort." The teacher further noted that the student had cut class three times, had failed to complete classroom and homework assignments and had not sought extra help. The student's guidance counselor also commented that the student's problem was not one of ability or background but rather the desire to do the work.

Under respondent's policy, a student is not allowed to withdraw unilaterally from a course and must demonstrate reasonable effort before a course withdrawal will be permitted. In accordance with this policy, the high school principal denied the student's request to withdraw from Math 12X. In making his decision, the principal considered the teacher's and counselor's comments and determined that the student should seek the extra help offered by the teacher before he would be allowed to withdraw.

The principal discussed his decision, and the bases for it, with petitioner. The principal offered to review the student's efforts through the end of the first semester, January 29, 1993, and if the student showed no ability to profit from the course despite a full and concerted effort, he would then be permitted to withdraw.

Petitioner rejected the principal's offer and insisted that she was entitled to withdraw her son from Math 12X. Petitioner denied that her son had "cut" any classes although she admitted that twice her son went to art class to work on his portfolio instead of attending Math 12X. Petitioner also claimed that it would be a problem for her son to go for extra help because he left school early to go to his job.

Petitioner appealed the principal's decision to the superintendent. The superintendent reiterated the principal's offer which petitioner again rejected. Subsequently, the board of education upheld the superintendent's decision. As a result, petitioner's son received a failing grade in Math 12X for the first semester of the 1992-93 school year. On February 8, 1993, petitioner commenced this appeal.

Petitioner contends that as a parent she has the right to withdraw her son from Math 12X. Petitioner requests that respondent: remove her son from Math 12X immediately, expunge the final grade of "F" from his permanent school record, and notify all the colleges that were sent her son's record that the "F" grade was incorrect.

Respondent contends that the board of education has the authority to regulate the withdrawal of students from class pursuant to Education Law '1709(3). Respondent maintains that its policy, which requires a student to demonstrate reasonable effort prior to being permitted to withdraw from a course, is rational.

Education Law '1709(3) authorizes a board of education:

[to] prescribe the course of study by which pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.

Consistent with that authority is the power to establish standards for the assignment of grades and course withdrawal policies (Appeal of Rathke, 24 Ed Dept Rep 373). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement absent evidence that the board acted in an illegal, arbitrary or capricious manner (Appeal of Amoia, 28 Ed Dept Rep 150; Appeal of DiMicelli, 28 id. 327). Nor will the Commissioner substitute his judgment for that of a board of education on the assignment of a student's grade or grading policy absent clear evidence that the board's determination was arbitrary, capricious or unreasonable. (Appeal of Timbs, 29 Ed Dept Rep 392).

In an appeal to the Commissioner, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Amoia, supra). On the record before me, petitioner has failed to establish that respondent has acted arbitrarily or capriciously. Under respondent's policy, a student may not unilaterally withdraw from a course and must demonstrate effort before a course withdrawal will be permitted. Respondent had the authority to promulgate such a policy pursuant to Education Law '1709(3). Moreover, the policy was applied properly in this instance. The principal considered all of the circumstances surrounding the student's withdrawal request, including input from the student's teacher and guidance counselor, the student's class "cuts", failure to turn in homework assignments and failure to seek extra help. I, therefore, do not find that respondent's refusal to permit petitioner's son to withdraw from Math 12X was arbitrary, capricious or unreasonable.