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Decision No. 13,272

Appeal of PETER C., on behalf of KRISTA C., from action of the Board of Education of the Cassadaga Valley Central School District regarding denial of course credit.

Decision No. 13,272

(October 11, 1994)

Hodgson, Russ, Andrews, Woods & Goodyear, Esqs., attorneys for respondent, David A. Farmelo and John J. Christopher, Esqs., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's denial of course credit to his daughter, Krista, due to excessive absences. The appeal must be dismissed.

Respondent Board of Education of the Cassadaga Valley Central School District has a minimum attendance policy. To receive course credit under the policy, a student must attend at least 85% of the classes for a particular course. Consequently, the policy allows a maximum of 28 absences in full year courses and 14 absences in half year courses.

The second semester of the 1993-94 school year in the Cassadaga Valley district began on February 1, 1994. Thirteen school days into the second semester, the high school principal notified petitioner in writing that Krista had already accumulated 8 absences in her Painting II class. A second letter dated February 25, 1994 was sent to petitioner informing him that Krista had accumulated 7 absences in Sculpturing II. A third letter dated March 2, 1994 was sent to petitioner informing him that Krista had accumulated 6 absences in her English class. All three letters restated respondent's policy that only 14 absences were permitted during a one semester course and that, if a student accumulated 14 absences, the student would receive no course credit. Each letter also advised petitioner to phone the high school principal if he had questions concerning this matter. No telephone calls were made by petitioner to the principal.

By May 20, 1994, Krista had been absent a total of 18 days and tardy on 18 additional days. At that time, Krista's teachers for Painting II, Sculpture II, Economics and English sent written notices to petitioner, advising that Krista was failing those courses. By letter dated May 26, 1994, the principal informed petitioner that because Krista had exceeded the allowed number of absences for these courses, she would not receive credit for them. That letter also advised petitioner that:

Additionally, you have a right to appeal the accuracy of our attendance records if you feel an error has been made. If you wish to follow this procedure, please notify me in writing to request a hearing on this matter.

Petitioner did not request a hearing. This appeal ensued.

As a preliminary matter, petitioner offers new allegations and exhibits in his reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR 275.3). It is not meant to buttress allegations contained in the original petition or add assertions or exhibits that should have been contained in the petition (Appeal of Konkoski, 33 Ed Dept Rep 303; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Accordingly, in making this determination, I have not considered the new allegations or exhibits improperly included in petitioner's reply.

Petitioner contends that respondent improperly denied Krista credit in courses for which she had earned passing grades. Respondent denies that allegation.

A board of education may adopt a policy requiring minimum attendance for students to receive academic credit (Appeal of Rivers, 27 Ed Dept Rep 73; Appeal of Dickershaid, 26 id. 111; Matter of Laviolette, 24 id. 37; Matter of Dickerson, 20 id. 132). However, it is improper to apply such a policy in a way that would deny a student credit for a course in which the board of education has determined that the student's academic performance has earned a passing grade (Appeal of a Child with a Handicapping Condition, 32 Ed Dept Rep 83; Appeal of Burns, 29 id. 103; Matter of Shamon, 22 id. 428). There is no evidence in the record before me, however, to support petitioner's contention that Krista earned passing grades in the courses in question. In fact, the record indicates that respondent never determined that Krista had earned passing grades and that she was actually failing all her courses.

Petitioner also contends that respondent failed to provide his daughter with a hearing, as allegedly required by respondent's attendance policy. That contention, however, is not supported by the record. Rather, the principal's May 26, 1994 letter to petitioner clearly advised petitioner and Krista of their right to a hearing. Petitioner simply did not request a hearing.

Petitioner also maintains that respondent failed to provide certain services that Krista required because of medical problems. Other than petitioner's mere assertions, however, he provides no evidence of those medical problems. Nor does he show that medical problems affected Krista's ability to attend school. Moreover, there is no evidence in the record that petitioner informed respondent of Krista's medical difficulties or that respondent was even aware of such problems. In any event, if petitioner continues to believe that Krista has medical difficulties that may affect her academic performance, he should immediately request that she be evaluated by respondent's committee on special education (CSE). Indeed, if respondent suspects that Krista may have a disability, it must initiate the CSE review process (8 NYCRR 200.4) or provide for her needs pursuant to '504 of the Rehabilitation Act of 1973.