Decision No. 13,679

(September 27, 1996)

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

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

MILLS, Commissioner.--Petitioner appeals certain provisions of a student discipline policy adopted by the Board of Education of the Cincinnatus Central School District ("respondent"). Petitioner challenges that part of the policy that precludes students who are failing two or more courses from participating in extracurricular activities. The appeal must be dismissed.

Petitioner is a resident of respondent's school district. Her son was a senior at respondent's high school during the 1994-95 school year. Throughout the year, the student failed to maintain passing grades in physical education and in a BOCES Auto Collision II course. As part of an "Academic Achievement Program" respondent adopted a policy requiring students to maintain academic eligibility to participate in extra-curricular activities. The policy provides that students failing two or more courses at the end of a marking period are placed on an ineligibility list and may not participate in any extracurricular activity or play in any interscholastic athletic event until they meet necessary academic standards. The policy further provides for "Academic Ineligibility Release" whereby, upon the student's improved performance, each teacher who originally submitted the student's name as academically ineligible completes a form for the release of the student from that list. Unless a student obtains a release in each course he or she was failing, the student remains ineligible to participate in extracurricular activities.

Petitioner's son was placed on the ineligible list as a result of his failure to earn passing grades in the two aforementioned courses. Subsequently, the student's BOCES teacher completed a release form upon the student's improved performance in the Auto Collision II course. However, the physical education teacher did not release the student from the ineligible list. As a result, the student was not permitted to participate in a senior trip to Florida during the week of April 27 to May 1, 1995.

Petitioner commenced this appeal on May 26, 1995. In her petition she concedes that the appeal is academic with respect to her son's participation in the Florida senior trip. However, she challenges as unreasonable respondent's policy regarding student participation in extracurricular activities. Specifically, petitioner asserts that senior trips should not be included as an extracurricular activity in relation to academic eligibility. She contends that a senior trip is a unique experience of which no student should be deprived.

Respondent contends that the appeal is procedurally defective in several respects. Respondent asserts that the appeal is untimely, the petition is not verified as required by 8 NYCRR '275.10 and that petitioner improperly seeks a declaratory ruling by the Commissioner of Education. On the merits, respondent contends that its policy is in all respects proper.

I will first address respondent's procedural assertions. Section 275.16 of the Regulations of the Commissioner of Education requires that an appeal be initiated within 30 days of the decision that is the subject of the appeal. The parties indicate that, in March 1995, respondent's principal informed petitioner that her son was ineligible to participate in the senior trip. On April 26, 1995 petitioner met with the superintendent of schools regarding the matter, but the superintendent refused to permit the student's participation. Respondent characterizes petitioner's meeting with the superintendent as an attempt to seek reconsideration of a final decision and, therefore, asserts that petitioner's time to initiate the appeal began to run in March 1995. Because the petition was served on May 26, 1995 - more than 30 days after the principal's decision - respondent contends it should be dismissed as untimely.

While it is true that applications to reconsider a matter do not serve to extend the time in which to appeal (Appeal of Shuchat, 33 Ed Dept Rep 470; Appeal of Guido, 33 id. 244), respondent incorrectly characterizes petitioner's request to the superintendent as a request for reconsideration. Inasmuch as the superintendent had not yet rendered a decision in the matter, the April 26, 1995 decision not to allow the student to participate in the senior trip did not constitute reconsideration of a final decision, but instead was the result of reviewing the determination of a subordinate - the principal. To hold otherwise would force a parent to immediately initiate an appeal from non-final determinations made at the building level to avoid dismissal for untimeliness. Because this appeal was initiated within 30 days of the superintendent's April 26, 1995 determination, it is timely.

Respondent also asserts that the petition is procedurally defective, alleging that it was not verified in accordance with the requirements of '275.5 of the Regulations of the Commissioner of Education. However, the petition filed in the record before me does contain an affidavit of verification in compliance with the regulations. Respondent's objection, thus, is without merit.

Respondent also contends that the appeal must be dismissed on the ground that petitioner failed to exhaust her administrative remedy by appealing the superintendent's decision to the board of education prior to initiating this proceeding. Respondent relies on its own policy which encourages parents who disagree with school administrators' decisions to bring the matter before the board of education for review. Notwithstanding the provisions of respondent's policy, Education Law '310 provides, in pertinent part:

Although I commend respondent's policy of encouraging local resolution of disputes, in this instance there is nothing in statute requiring that petitioner appeal first to the board of education before exercising her right to initiate an appeal pursuant to Education Law '310. Consequently, there is no basis to dismiss this appeal for failure to exhaust an administrative remedy.

The appeal must also be dismissed on the merits. Petitioner challenges respondent's inclusion of senior class trips as an extracurricular activity for which a student must be academically eligible in order to participate. Petitioner cites no legal basis for her assertion that such trips should not be considered an extracurricular activity. Petitioner instead merely presents her opinion and requests that I adopt it.

Inclusion of senior class trips as an extracurricular activity for purposes of imposing discipline is a local policy decision properly made by a local board of education. In upholding a board's decision to exclude a student from a district-sponsored trip to England, former Commissioner Sobol noted:

Therefore, absent a showing that inclusion of senior trips as an extracurricular activity for disciplinary purposes is contrary to law or an abuse of discretion, I will not substitute my judgment for that of a board of education in such matters (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Tee, supra).

THE APPEAL IS DISMISSED.

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