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Decision No. 13,038

Appeal of BECKY PAYE, on behalf of her son William, from action of the Board of Education of the Saranac Lake Central School District regarding class placement.

Decision No. 13,038

(November 8, 1993)

Arthur F. Grisham, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, on behalf of her son, William, appeals the refusal of the Saranac Lake Central School District ("respondent") to place her son in a non-Regents English 12 class for the 1992-93 school year. The appeal must be dismissed.

During the 1990-91 school year, two weeks before his mid-year examination, respondent moved petitioner's son from his tenth grade English class, where he had an 80% average, to a Regents English class, which he ultimately failed. William also failed English 9 for the second time that school year.

During the 1991-1992 school year, William dropped his English 11 class mid-way through the year with a 60% average, requiring him to take English 11 and 12 in 1992-1993, his senior year. On two occasions, early in her son's senior year and again in a letter dated March 20, 1993, petitioner requested that William be transferred from English 12 Regents to a non-Regents class. Petitioner's request was based on William's poor performance in the course and his disinterest in receiving a Regents diploma or attending a college that required a Regents diploma. Petitioner also wanted William to pass the course to avoid attending summer school.

On May 12, 1993, the superintendent met with petitioner to discuss William's English placement and to prepare a potential schedule which would enable William to graduate by August 1993 or January 1994. The superintendent refused to transfer William to a non-Regents English course. This appeal ensued.

Petitioner requests an investigation of respondent's policies and practices relating to student transfers between courses. Respondent counters that the appeal should be dismissed as untimely. Furthermore, respondent asserts that its actions were proper because the board has discretion under Education Law '1709 to prescribe the courses taken by students.

I will first address the timeliness issue. An appeal to the Commissioner under Education Law '310 must be commenced within 30 days from the making of a decision or the performance of the act complained of, unless excused by the Commissioner for good cause (8 NYCRR 275.16). Since petitioner appealed respondent's May 12, 1993 refusal to change her son's classroom placement on May 25, 1993, the appeal is timely.

Nonetheless, the Commissioner of Education will only decide matters in actual controversy and will not render a decision upon a state of facts which no longer exist, or which subsequent events have laid to rest (Appeal of Auch, 33 Ed Dept Rep ___, Decision #12984, dated August 11, 1993; Appeal of Becker and Hargett, 29 Ed Dept Rep 419; Appeal of Vachon, 28 id. 276). Since petitioner's son completed his English 12 course in summer school, his placement is no longer an issue and this claim must be dismissed as moot.

Although petitioner's primary claims are procedurally defective, respondent's refusal on the facts of this case to grant a parental request to transfer William to a non-Regents course compels further comment. While it is true that Education Law '1709(3) vests boards of education with broad authority to prescribe for its students their course of study, such determinations cannot be arbitrary, capricious, or unreasonable (Appeals of Face, 31 Ed Dept Rep 8; Appeal of Stokes, 29 id. 409; Appeal of Womack, 27 id. 262). Respondent's papers indicate scholastic reasons for retaining petitioner's son in a Regents course despite his academic difficulties in the subject area since 9th grade. However, when, as here, a student continually struggles academically, is not seeking a Regents diploma and specifically requests a transfer to a non-Regents course, it may well be unreasonable to retain him in a Regents course.

It is unclear from the record before me to what extent the board's decision in this case reflects its actual policy. To the extent that it does, however, respondent board is urged to review its policies to ensure that these types of decisions take into account not only a student's scholastic ability, but the parents' sense of the student's needs and the broader interests of the student involved. To assist in the board's review, I am forwarding this matter to the appropriate Regional Field Team with direction that the team work with respondent to ensure that its placement policy considers students' needs and interests and past academic record, in addition to the school district's assessment of the students' academic abilities.

Petitioner also complains that she did not timely receive a final report card for William's 10th grade because he owed money for unreturned books. Respondent asserts, however, that on June 10, 1993, it rescinded its policy regarding the release of records for unreturned books. Moreover, petitioner did receive her son's 10th grade report card at the May 12, 1993 meeting. Because respondent has changed its policy regarding the release of student records and petitioner has now received copies of William's records, the matter is moot.

Finally, I note for the record that this change in policy was compelled by the requirements of the Family Educational Rights and Privacy Act ("FERPA" 20 U.S.C. 1232(g)), which gives parents the right to access their children's school records.