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Decision No. 13,407

Appeal of LINDA HYNDS, on behalf of her daughter, LISA HYNDS, from action of the Board of Education of the Riverhead Central School District regarding attendance.

Decision No. 13,407

(May 4, 1995)

Smith, Finkelstein, Lundberg, Isler and Yakaboski, Esqs., attorneys for respondent, Frank A. Isler, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to allow her daughter to attend English class. The appeal must be sustained.

The Board of Education of the Riverhead Central School District ("respondent") has an attendance policy for high school students. The policy provides that if a student "cuts" class four times, the student is removed from that course. The policy also states that "unauthorized lateness of more than 15 minutes constitutes a class cut."

Lisa is a ninth grade student at respondent's high school. The record does not indicate Lisa's age. However, in light of her grade level, it appears Lisa is of compulsory attendance age. Between October 21, 1994 and November 21, 1994, Lisa was more than 15 minutes late for her first period English class four times. By letter dated November 30, 1994, respondent informed petitioner that because of the cuts, Lisa was ineligible to earn credit for that course. The letter further stated:

Please be advised that Lisa will be dropped from this course and assigned to a structured studyhall (sic) during first period for the remainder of the school year, should she cut the class again.

On December 15, 1994, Lisa was again more than 15 minutes late for her English class. By letter dated January 3, 1995, respondent informed petitioner that Lisa had been removed from English class and "assigned to a structured studyhall (sic) during first period for the remainder of the school year." Petitioner commenced this appeal on January 27, 1995. On February 8, 1995, I issued an interim order directing that Lisa be permitted to attend English class pending a determination on the merits of this appeal.

A board of education may adopt a policy establishing minimum attendance requirements to receive academic credit (Appeal of Rivers, 27 Ed Dept Rep 73; Appeal of Dickershaid, 26 id. 111; Matter of Fitchett-Delk, 25 id. 178; Matter of Laviolette, 24 id. 37; Matter of Dickerson, 20 id. 132). Although such policies may not impose academic sanctions for misbehavior unrelated to academic achievement, a policy that factors class participation into a student's grade may result in denial of course credit where the student has not earned passing grades (Matter of Burns, 29 Ed Dept Rep 103). However, when a board of education incorporates attendance as a component of a student's grade, it may not distinguish between excused and unexcused absences. It is irrelevant for purposes of grading whether or not a student's absence on a particular day is excused, because, in either case, the student has missed the opportunity for classroom participation (Appeal of Shepard, 31 Ed Dept Rep 315; Appeal of Dickershaid, supra; Matter of Shamon, 22 id. 428). Attendance policies that ignore excused absences while factoring unexcused absences into a student's grade convert the purpose of grading from a measure of academic performance to a means of student discipline. The imposition of academic penalties, such as the denial of academic credit for disciplinary infractions unrelated to academic achievement, is thus educationally unsound (Matter of Shamon, supra; Matter of Gibbons, 22 Ed Dept Rep 134; Matter of Caskey, 21 id. 138; Matter of MacWhinnie, 20 id. 145). As noted above, respondent's policy distinguishes between excused and unexcused absences. Therefore, I find respondent's policy invalid.

Other aspects of this dispute must also be addressed. As a result of Lisa's fifth unauthorized lateness to class, she was suspended from that class. While school districts are authorized to adopt policies that deny a student credit for nonattendance, a policy that addresses nonattendance by suspending a student's right to attend school sends a logically inconsistent message to school-age children. Moreover, respondent is not authorized to suspend a student for nonattendance. As stated in Appeal of Ackert, 30 Ed Dept Rep 31, 33:

In considering the authority of school boards to discipline students, '3214 of the Education Law provides for suspension of students who are "insubordinate or disorderly or whose conduct otherwise endangers the safety, morals, health or welfare of others" or "whose physical or mental condition endangers the health, safety or morals of himself or of other pupils." (Education Law '3214[3][a][1] and [2]). To the extent that '3214 of the Education Law refers to truancy, school officials are authorized to establish schools or set apart rooms in public school buildings for their instruction and for pupils with irregular attendance (Education Law '3214[1]). Notably, truancy is omitted from '3214 as a basis for suspension. Moreover, because the State Constitution provides that all children of the State are entitled to attend the public schools, (NY Const. Art. 11, '1) any statute limiting that right must be narrowly construed. Therefore, I conclude that school authorities are not empowered under '3214 to suspend students for truancy.

In view of this statutory construct (see King v. Farmer, 102 Misc 2d 610, 424 NYS2d 86), as well as the educational goal of encouraging children to regularly attend and participate fully in school, a student may not be suspended, expelled or dropped from school attendance for truancy. The only permissible alternative under '3214(1) of the Education Law provides for the establishment of special classes or schools designed to address problems of truancy which affords the protections of '3214(5) of the Education Law where an involuntary transfer to another school is involved.

I also note that when Lisa was suspended from ninth grade English class, she was assigned to a study hall. As indicated above, it appears that Lisa is of compulsory attendance age. Education Law '3214(3)(e) provides that when a student of compulsory attendance age has been suspended, "immediate steps shall be taken for his attendance upon instruction elsewhere." Placement of a suspended student of compulsory attendance age in a study hall does not satisfy a board's statutory obligation to provide alternative instruction (Appeal of Ackert, supra; Matter of Malpica, 20 Ed Dept Rep 365). Accordingly, it appears that respondent failed to provide Lisa with proper alternative instruction after she was suspended from ninth grade English class.