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Decision No. 13,434

Appeal of JOHN STRADA, on behalf of his son, JAMES, from action of the Board of Education of the Niskayuna Central School District relating to denial of course credit.

Decision No. 13,434

(June 19, 1995)

Higgins, Roberts, Beyerl & Coan, P.C., attorneys for respondent, Robert J. Coan, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's denial of academic credit to his son, James, for a Physics course James took during the 1992-93 school year. The appeal must be sustained in part.

During the 1992-93 school year, James was in twelfth grade at respondent's high school and was enrolled in Physics. On May 14, 1993, the assistant principal recommended, in accordance with the district's "Unauthorized Absence Policy", that James be denied credit in Physics because of his fourth unauthorized absence. About this same time, the assistant principal advised James that he should continue attending class pending an appeal of the decision. Nonetheless, James did not attend Physics class for the rest of the school year or take the final exam. James was thus absent from Physics a total of 63 times.

On June 7, 1993, after a hearing, the superintendent denied James credit for Physics. On June 24, 1993, James graduated from respondent's high school. Thereafter, petitioner appealed the superintendent's decision to respondent. On September 14, 1993, respondent affirmed the superintendent's decision. This appeal ensued.

Petitioner contends that the district's "Unauthorized Attendance Policy" is illegal because it distinguishes between authorized and unauthorized absences and punishes students for attendance violations. Petitioner also contends that the board denied James his due process rights. Petitioner requests that James be given credit for Physics with a grade of B, his grade prior to April 22, 1993. Petitioner further requests that respondent rescind its "Unauthorized Attendance Policy". Lastly, petitioner requests that respondent be directed to take disciplinary action against certain unnamed employees for their alleged wilful neglect of duty.

Respondent maintains that the appeal is moot since James did not attend class or take the final exam and petitioner did not appeal until after James graduated. Respondent further maintains that it is impossible to grant the requested relief. Respondent also alleges that James should have signed the petition for relief since he is over 18 years of age.

Before reaching the merits, I must address several procedural issues. Education Law '310 provides that any aggrieved person may appeal to the Commissioner. Although a person over the age of 18 is legally competent to maintain an appeal (Appeal of Farber, 33 Ed Dept Rep 424), a parent may petition on behalf of his or her child. Accordingly, I find that petitioner has standing to bring this appeal, and James need not have signed the petition on his own behalf.

Petitioner requests that I order respondent to take disciplinary action against certain unnamed employees. Any person whose rights would be adversely affected by a determination of an appeal in favor of petitioner must be joined as a necessary party (Appeal of Bonanno, 33 Ed Dept Rep 610). Therefore, that portion of the appeal that requests disciplinary action against unnamed employees must be dismissed for failure to join necessary parties.

With regard to mootness, the Commissioner of Education will determine only matters in actual controversy and will not ordinarily render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Langenmayr, 30 id. 322). While petitioner's son has graduated, petitioner appeals, in part, respondent's policies concerning attendance and unauthorized absences. Therefore, I decline to dismiss the appeal as moot.

I turn now to the merits of this appeal. The record indicates that respondent's code of conduct and discipline contains a policy regarding minimum class attendance. Section 2 of respondent's code states, in pertinent part:

To be eligible to receive credit for a course, Niskayuna High School students must attend a minimum of 83.33% of scheduled classes for each course in which they are enrolled. For purposes of the "Attendance Policy" no differentiation will be made between "authorized" and "unauthorized" absences. All absences shall count towards the prescribed number of classes a student must attend ...

Under this section, a student loses credit upon the student's 40th absence in a science lab course and receives a notation of EA (excessive absenteeism) on their report card and transcript.

In addition, respondent's code contains an "unauthorized absence policy." Section 22 of that code states, "[t]he `unauthorized absence from class policy', as distinguished from the `attendance policy', shall be invoked when a student is not authorized to be absent from a class." The policy lists the steps that will be taken after the first, second, third and fourth unauthorized absences. Specifically, after the fourth occurrence, the policy provides, in pertinent part:

The classroom teacher will notify the assistant principal and inform the student that a fourth unauthorized absence has been recorded. The assistant principal will make telephone contact with the parent or legal guardian and arrange for a superintendent's hearing. The principal will recommend to the superintendent that the student be withdrawn from the course with a designation of "EA" (Excessive Absenteeism) on the student's transcript.

If a student wishes to be eligible to retake a course in summer school from which the student has been withdrawn with an "EA" (Excessive Absenteeism), that student must remain in that course throughout the regular school year. Students who elect not to remain in that class will be assigned to restricted study hall for the duration of time during the school year when that class is scheduled to meet.

Based on the record before me, it appears that the decision to deny James credit was based on this section.

It is well settled that a board of education may adopt a policy establishing minimum attendance requirements to receive academic credit (Appeal of Vitello, 32 Ed Dept Rep 218; Appeal of Rivers, 27 id. 73; Appeal of Dickershaid, 26 id. 111; Matter of Laviolette, 24 id. 37), but such attendance policy may not distinguish between unexcused and excused absences for purposes of imposing the academic sanction of the denial of course credit (Appeal of Vitello, 32 Ed Dept Rep 218; Matter of Shamon, 22 id. 428). Therefore, to the extent section 2 of respondent's code establishes a minimum attendance requirement for course credit, which does not distinguish between excused and unexcused absences, I find respondent's "attendance policy" to be reasonable.

Respondent's "unauthorized absence policy", however, is not authorized by law and is contrary to sound educational policy. In effect, respondent's policy imposes an academic penalty, the denial of credit, for disciplinary infractions unrelated to academic achievement. As such, it distinguishes between excused and unexcused absences. Therefore, I find respondent's unauthorized attendance policy to be invalid.

Moreover, respondent is not authorized to suspend a student for nonattendance (Appeal of Hynds, 34 Ed Dept Rep , Decision No. 13407; Appeal of Ackert, 30 id. 31). As stated in Appeal of Ackert:

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 this case, respondent's "unauthorized absence policy" effectively results in the suspension of a student from a particular class because of truancy. Under respondent's policy, a student with four "unauthorized absences" may be removed from class and assigned to a restricted study hall. Accordingly, I find respondent's policy to be improper. In view of this conclusion, it is not necessary for me to address petitioner's contention concerning procedural due process of law.

Although I find respondent's "unauthorized absence policy" to be invalid, I cannot now grant petitioner's son academic credit for that course. The record shows that petitioner's son did not attend the course after May 11, 1993, did not take the final exam and graduated from respondent's high school on June 24, 1993. Therefore, there is no basis for granting this relief.

I have considered the parties' remaining contentions and find them without merit.


IT IS ORDERED that respondent's "unauthorized absence policy" is hereby annulled.