Decision No. 13,636

(July 12, 1996)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for

respondent, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals from respondent's determination that his daughter ranked third in her class academically, and would not be named valedictorian or salutatorian. The appeal must be dismissed.

Petitioner's daughter was a senior at respondent's high school during the 1994-95 school year. At the end of her junior year, the student ranked second in her class academically. At the time his daughter entered twelfth grade, petitioner became aware that a junior class student studying in an accelerated program would be graduating with his daughter and that that student would be ranked with the senior class for purposes of naming a valedictorian and salutatorian. Petitioner protested this inclusion but was informed by school officials that, consistent with Appeal of Chesbrough, 32 Ed Dept Rep 647, accelerated students graduating early cannot be denied participation in the class rank process. In addition, inclusion of the junior student in class ranking was consistent with respondent's past practice.

Petitioner protested the decision to the board of education and, in an effort to address petitioner's concerns, respondent agreed to wait until the end of the fourth quarter to calculate the students' overall average and determine the valedictorian and salutatorian, rather than to do so after the third quarter as was its regular practice.

At the end of the semester, respondent calculated the class averages. L.B. earned the highest academic average at 99.176; the junior student (J.B.) ranked second with an average of 98.44 and petitioner's daughter ranked third with an average of 98.12. Respondent named L.B. valedictorian and J.B. salutatorian.

Petitioner initiated this appeal on June 21, 1995 seeking an interim order staying the announcement of the valedictorian and salutatorian at the graduation ceremony which took place on June 25, 1995. After reviewing the issues raised by petitioner, I determined there was no basis on which to grant the stay. By letter from my Office of Counsel dated June 23, 1995, petitioner was informed that the stay was denied. Accordingly, respondent was authorized to announce the valedictorian and salutatorian at the graduation ceremony and permit recognition of L.B. and J.B. as such.

In view of the fact that a stay of the announcement was the primary relief sought by petitioner, my disposition of the stay request has rendered this appeal moot. The Commissioner of Education will not decide matters which subsequent events have put to rest (Appeal of Goldin, 35 Ed Dept Rep 446).

The appeal also must be dismissed on additional procedural and substantive grounds. Although petitioner challenged the inclusion of J.B. in calculating class rank, he failed to serve J.B. with a copy of the petition. A party whose rights would be adversely affected by a determination in favor of petitioner is a necessary party and must be joined as such (Appeal of Concerned Taxpayers Awareness Group, 35 Ed Dept Rep 448). Petitioner seeks to exclude J.B. from the class ranking process. Because J.B. would be affected by such a determination, he is a necessary party to the appeal. As such, petitioner's failure to join J.B. in the appeal requires that it be dismissed.

The petition must also be dismissed on the merits. In Matter of Roberts, 15 Ed Dept Rep 269, a determination by the East Meadow Union Free School District not to include an accelerated student in class ranking was held to be discriminating. Roberts was cited in Appeal of Chesbrough, 32 Ed Dept Rep 647, in which the board of education's policy and practice of including accelerated students in class ranking was upheld. The issue in that case is identical to that presented herein. Respondent's inclusion of accelerated students for purposes of class ranking is entirely consistent with prior Commissioners' decisions and with its own past practice. Consequently, there is no basis on which to substitute my judgement for that of respondent.

THE APPEAL IS DISMISSED.

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