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Decision No. 13,900

Appeal of DIANE L., on behalf of her daughter, from action of the Board of Education of the Central Islip Union Free School District regarding student grading.

Decision No. 13,900

(March 30, 1998)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Central Islip Union Free School District ("respondent") to change her daughter’s first quarter grade in English. The appeal must be dismissed.

During the 1996-97 school year, petitioner’s daughter was a seventh grade student enrolled in respondent’s junior high school. On November 12, 1996, after being notified that her daughter had received a B+ grade in her English course for the first quarter, petitioner wrote to respondent and demanded that her daughter’s grade be changed to an A. Respondent afforded petitioner an opportunity to present her case at its December 1996 meeting, after which, by letter dated January 9, 1997, it denied petitioner’s request, noting that it was unable to direct any change in her daughter’s grade.

Petitioner commenced this appeal on April 10, 1997. Petitioner alleges that the English teacher insulted, criticized and emotionally abused her daughter’s intelligence and had failed to confer, upon her, the grade she rightfully deserved. Petitioner demands that I change her daughter’s first quarter grade from a B+ to an A.

Respondent contends that the appeal is untimely and that petitioner has failed to demonstrate a clear legal right to the relief requested. Respondent also maintains that it did not act in an arbitrary, capricious or unreasonable manner.

I will first address the issue of timeliness. An appeal to the Commissioner of Education must be commenced within thirty days from the making of the decision appealed or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Here, respondent’s determination was made on January 9, 1997. Although petitioner claims that she did not receive this decision until January 20, 1997, the record indicates that she did not serve her petition in this appeal until April 10, 1997, more than thirty days after the date of respondent’s January 9 decision and petitioner’s subsequent receipt thereof. Accordingly, the appeal is untimely (see, e.g., Appeal of Magee, 30 Ed Dept Rep 479).

Petitioner offers, as additional reasons for the delay, that she was hospitalized for the last two weeks in January, that she had written to the Commissioner on February 14, 1997 and that she had served the petition within thirty days of receiving the Instructions for Filing an Appeal. These reasons, however, are insufficient to excuse the delay. Petitioner did not serve the petition for more than two months after her hospitalization, and her letter to the Commissioner was not a substitute for a properly filed appeal of respondent’s determination. Furthermore, except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of A.B., 36 Ed Dept Rep 155; Appeal of a Child with a Disability, 33 id. 672; Application of Johnson, 32 id. 458). I find no evidence of unusual circumstances in this case. Accordingly, the appeal is dismissed as untimely.

Even if the appeal were timely, I would still be constrained to dismiss it on the merits. Pursuant to Education Law "1709(3), boards of education are vested with broad discretion 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." To that end, decisions regarding student grading rest, initially, with the classroom teacher and, ultimately, with the board of education (Appeal of Fatjo, 35 Ed Dept Rep 438; Appeal of Marcia E., 35 id. 331; Appeal of T.K. II, et al., 34 id. 244). The Commissioner of Education will not substitute his judgment for that of a board of education with regard to the determination of a student’s grade absent a clear showing that the board’s determination was arbitrary, capricious or unreasonable (Appeal of Hickey, 32 Ed Dept Rep 12; Appeal of Timbs, 29 id. 392; Matter of Richardson, 29 id. 70). Further, in an appeal to the Commissioner of Education challenging a final grade, the petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Marcia E., supra; Appeal of Timbs, 29 Ed Dept Rep 392; Appeal of Amoia, 28 id. 150).

Petitioner has not met that burden here. To support the contention that her daughter should have received a different grade, petitioner argues only that her daughter is entitled to the higher grade and that the English teacher disrespected her daughter’s intelligence by awarding her a grade of B+ rather than an A. While petitioner alleges that the teacher acted arbitrarily, the record before me fails to establish that contention and provides no basis for me to award her daughter a higher grade. Moreover, the record indicates that, at petitioner’s request, respondent thoroughly investigated the student’s grade and found no basis to change it.

Petitioner has not submitted any evidence to show that respondent’s determination was improper or that she is entitled to the relief requested. Accordingly, based on the record before me, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.