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Decision No. 13,703

Appeal of MICHAEL J. GAYNOR, on behalf of his daughter, MARIA CHRISTINA GAYNOR, from action of the Board of Education of the Elwood Union Free School District regarding grading.

Decision No. 13,703

(November 22, 1996)

Erlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals respondent's refusal to change his daughter's grades and to discipline her teacher. The appeal must be dismissed.

During the 1995-96 school year, petitioner's daughter, Maria, was a sophomore in respondent's school district. Between January 10, 1996 and March 6, 1996, petitioner sent numerous letters to respondent's administrators expressing his dissatisfaction with Maria's Advanced Placement (AP) European history class and her teacher, Mrs. Harnischfeger. Specifically, he pointed out that Mrs. Harnischfeger applied incorrect answers in grading tests and that she refused to acknowledge this when it was brought to her attention. He expressed concern that essays were not being properly graded in accordance with AP standards. He alleged that Mrs. Harnischfeger had a punitive attitude toward his daughter as a result of his complaints and that she granted Maria low grades in retaliation. He also alleged that her grading system was unfair because it gave students an opportunity to earn extra credit, thus disadvantaging those students who performed well on classroom tests. Finally, he complained about the class's rate of progress through the material. By letter dated March 6, 1996 petitioner requested that:

Maria's European history grades for the first and second quarters of the 1995-96 school year be raised from A to A+;

Maria's biology grades for the 1994-95 school year be raised from C+ to A for the second quarter and from A to A+ for the final grade;

Mrs. Harnischfeger be directed to cease her punitive treatment of Maria; and

Mrs. Harnischfeger be disciplined for unprofessional behavior, including removal as faculty advisor from the International Club as long as Maria is at John Glenn High School.

It should be noted that petitioner did not question Maria's biology grade from the previous school year until this time. Petitioner claims that he now feels that the biology teacher's "culpable" conduct contributed to his daughter's low grade for that class and helped create the atmosphere in which Mrs. Harnischfeger felt free to act arbitrarily without any expectation of being held accountable for her conduct. Petitioner argues that raising Maria's biology grade will mitigate the damage to her class ranking resulting from Mrs. Harnischfeger's arbitrary behavior.

By letter dated March 20, 1996, respondent's superintendent denied petitioner's request. On March 26, 1996, petitioner asked respondent to review the superintendent's decision. On April 17, 1996, petitioner commenced this appeal seeking the relief requested in his March 6, 1996 letter. Respondent reviewed petitioner's request at its board meeting on April 18, 1996 and by letter dated April 22, 1996 notified him that they found his charges to be without merit. Throughout this period, petitioner continued to express his concerns by writing to the district and to parents of other students in the AP European history class.

Respondent maintains that petitioner's claims are without merit and raises procedural defenses. Also, respondent alleges that petitioner's actions (i,e., sending 35 letters, memos, and faxes to the district making demands and accusations and sending letters to other parents) are arbitrary, capricious, and unreasonable.

The appeal must be dismissed because issues of student grading and teacher discipline lie within the broad discretion of the board of education. Education Law '1709(3) gives boards of education broad power:

To prescribe the course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant.

Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law '1709(3)). When a student challenges a final grade, he or she bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Marcia E., 35 Ed Dept Rep 331; Appeal of Timbs, 29 Ed Dept Rep 392). Barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Marcia E., supra; Appeal of Burton, 33 id. 211; Appeal of Hickey, 32 id. 12).

In this case, I do not find respondent's actions to be arbitrary, capricious or unreasonable. The record indicates that respondent was responsive to the concerns petitioner raised. In instances where petitioner disputed the correct answer to objective questions, tests were regraded to allow for alternative correct responses. When petitioner questioned his daughter's grades on essay questions, respondent's high school principal -- formerly an AP European history teacher -- reassessed Maria's essays, but found no reason to adjust her grades. In February 1996, due to the concerns petitioner expressed, the principal began reviewing all of Maria's written work for the course.

Petitioner's request that Maria's grades be adjusted was reviewed by the high school principal, the superintendent, and respondent and, in each case, dismissed due to lack of merit. Respondent recalculated Maria's AP European history and biology grades and found them to be substantiated by her work. Based on the principal's in-class observations and her review of Maria's work products, respondent found no indication that Mrs. Harnischfeger had treated Maria unfairly. Respondent also reviewed Mrs. Harnischfeger's grading policy, found it appropriate, and notes that it does not discriminate because students are not graded competitively. Based upon this record, I find no reason to set aside respondent's refusal to adjust Maria's grades.

A board of education also has broad discretion to determine whether disciplinary action against employees is warranted (Appeal of Rivenburg, 35 Ed Dept Rep 27; Appeal of Allert, 32 id. 538; Appeal of Mitzner, 32 id. 15) so long as it has a reasonable basis to support its conclusion (Appeal of Kantor, 31 Ed Dept Rep 319). Absent extraordinary circumstances, the Commissioner will not substitute his judgment for that of a board in the exercise of this discretion (Appeal of Fogarty, 35 Ed Dept Rep 392; Appeal of Hicks, 8 id. 147). Petitioner has not demonstrated such extraordinary circumstances. Section 275.10 of the Commissioner's regulations requires that a "petition contain a clear and concise statement of the petitioner's claim showing that the petitioner is entitled to relief." That is, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Nash, 35 Ed Dept Rep 203; Appeal of Goldman, 35 id. 126) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327). Petitioner has not carried his burden of proving that the board's determination was improper.