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Decision No. 13,074

Appeal of JOYCE KOVALSKY, on behalf of her son Joseph, from action of the Board of Education of the City School District of the City of Troy and Mario Scalzi, Superintendent, regarding attendance at summer school.

Decision No. 13,074

(December 27, 1993)

Ruberti, Girvin & Ferlazzo, P.C., attorneys for respondents, James A. P. McCarthy, Esq., of counsel

Petitioner appeals respondents' refusal to allow her son, Joseph, to attend summer school. The appeal is dismissed.

The Board of Education of the City School District of the City of Troy ("respondent board") has this policy:

Students who fail a course because of attendance and exceed 40 days of absence will not be allowed to repeat the course in summer school, and must retake the course the following year.

The policy further provides:

A quarterly grade of Incomplete (I) will render a student ineligible for a final examination. A student will have an opportunity to complete all assignments within the succeeding marking period to adjust the grade of incomplete to a numerical grade. A standing grade of Incomplete will be computed as a zero. Two grades of Incomplete in a course of more than 40 class absences (20 for a half year course) will result in the student repeating the course in its entirety and the student will not be allowed to repeat the course in summer school.

During the course of a one semester class in the second half of the 1992-93 school year, petitioner's son, a senior, was absent 55 out of approximately 90 class days and received two grades of incomplete for the two marking periods of that class. On June 24, 1993, school district officials informed petitioner that Joseph would not graduate because he would not receive credit for the course. In addition, respondents would not allow Joseph to attend summer school to retake the class. While the record is not clear, it appears that school district officials offered petitioner's son the option of retaking the course in September 1993 or taking the course at a college level program. If Joseph passed the course at college, credit would be transferred back, and respondent board would issue a diploma to Joseph. Apparently, Joseph rejected these options. Petitioner commenced this appeal on June 29, 1993 requesting that a stay issue to allow her son to attend summer school. The stay request was denied on July 6, 1993.

Petitioner contends that respondent board has improperly prevented her son from attending summer school. Pursuant to Education Law ''2503(1) and 1709(3), a board of education of a city school district is authorized to prescribe the course of study which students of the district shall complete and to regulate the admission of students from one class to another. Decisions involving the regulation of admission of students to class are within the discretion of the board of education and will not be overturned unless such decisions are arbitrary, capricious, unreasonable or educationally unsound (Matter of Reilly and Juliano, 20 Ed Dept Rep 191; Matter of Delaney, 15 id. 130; Matter of Raffone, 13 id. 245; Matter of Talbot and Suskind, 10 id. 83). Respondent board contends that its policy is reasonable and educationally sound and was initiated to encourage attendance at school during the regular school year and to discourage students from viewing the shorter summer session as an alternative to regular school attendance. Petitioner offers no argument to counter respondent board's contention. Therefore, petitioner's argument that this policy is improper is rejected.

Petitioner also contends that the policy should not apply to her son because she had no notice of the policy and because such policy was developed by the superintendent and not the board of education. These contentions are without merit. The record reflects that respondent board has been applying its summer school admittance policy since at least the 1986-87 school year and that copies of the policy are sent to parents and students on a yearly basis. There is no evidence that petitioner did not receive a copy of the policy per respondents' ordinary practice. Moreover, pursuant to Education Law '2508(3) and (6), the superintendent of a small city school district is authorized to adopt a policy, such as the instant one, governing the promotion of students and eligibility for summer school.

Petitioner also seems to argue that respondent board is obligated to provide a summer school program. However, a board of education is under no obligation to provide such a program (Matter of Hannahs, 21 Ed Dept Rep 706).

I have reviewed petitioner's remaining contentions and find them without merit.