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Decision No. 13,905

Appeal of GLENDA L. KROM, on behalf of her son, EARL KROM, Jr., from action of the Board of Education of the Roxbury Central School District relating to the withdrawal from a course.

Decision No. 13,905

(April 1, 1998)

Shaw & Perelson, LLP, attorneys for respondent, David S. Shaw and Margo L. May, Esqs., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Roxbury Central School District ("respondent") refusing to allow her son, Earl, to withdraw from his calculus class and to have his grade in that class expunged from his high school record. The appeal must be dismissed.

During the 1996-97 school year, Earl, then a senior, was enrolled in a calculus class at respondent’s high school. At the beginning of the second quarter he experienced difficulties in the class characterized by low grades and what he felt was poor rapport with his teacher. During this period, petitioner had several conversations with Earl’s guidance counselor and calculus teacher concerning his possible withdrawal from the calculus class. The guidance counselor told her that unless Earl was willing to drop his AP English class to make room in his schedule for a different math class, he could not drop calculus. Earl apparently did not want to drop his AP English class, so nothing more was done at that time. Earl received a second quarter mark of 25 in calculus.

Thereafter, petitioner complained to the guidance counselor who suggested that she talk to the superintendent. She did so and asked that Earl be allowed to drop calculus. Petitioner claims that the superintendent told her he would get back to her, but never did. Eventually, the calculus teacher told petitioner that the superintendent was not going to let Earl drop the class. Petitioner then contacted respondent about this matter. Respondent met with the superintendent and told petitioner that no mechanism existed to allow a student to withdraw from class after the first two weeks of school.

Petitioner then contacted the BOCES superintendent, who suggested that petitioner look at the student handbook. She did so and learned of a provision which allowed a student to drop a class after the first two weeks of class with the approval of the parent, superintendent, guidance counselor, and teacher, when special circumstances existed. Petitioner went back to respondent claiming that Earl’s situation warranted a review due to a special circumstance.

Petitioner sent letters to respondent on March 6 and March 11, 1997 asking that her son be allowed to withdraw from calculus. On May 13, 1997 she sent a third letter to respondent asking that her son’s grades for the last two quarters of calculus class be removed from his record. In May 1997, respondent met with petitioner and considered her request in executive session. Petitioner sent a final letter to respondent on June 11, 1997 asking that her son’s calculus marks be expunged. Respondent’s decision denying her request was communicated to petitioner in a July 9, 1997 letter. Petitioner claims that she did not receive this letter from respondent until August 14, 1997. This appeal was filed on September 13, 1997.

Petitioner contends that respondent acted unfairly in refusing to allow her son to drop calculus when she first approached the teacher and guidance counselor. She claims that the teacher told her that Earl did not belong in the class. She maintains that her son worked very hard in the class, and sought outside help from other calculus students. Petitioner also contends that the calculus teacher had very poor rapport with Earl which contributed to his difficulties.

Petitioner also alleges that respondent did not communicate its policy to her in a timely manner, and this led to a number of delays. Once she became aware of the policy, she asked respondent to review Earl’s situation as a special circumstance. She contends that Earl should have been allowed to drop calculus under the special circumstances exception because he was a diligent student, he had sought outside help, and the stress of receiving low grades in calculus was harmful to his mental and physical health. Petitioner also argues that if respondent had permitted Earl to drop calculus during the second quarter, as she had requested, she would not now have to ask that his grade be expunged.

Respondent contends that this appeal should be dismissed as untimely and moot. Respondent further contends that its determination not to allow Earl to withdraw from calculus was a reasonable exercise of its discretion. Respondent maintains that Earl failed to make a satisfactory effort in the calculus class and did not seek help from his teacher. Furthermore, when he was offered the option of replacing the calculus class with a regular math class, he turned it down because it would have meant giving up his AP English class.

Respondent also alleges that its withdrawal policy has been in effect for five years and has been applied consistently. Respondent contends that petitioner should have known about this policy since it was listed in the student handbook when Earl was a junior. Respondent acknowledges that it amended its policy in January 1997 to allow course changes after the second week of school in special circumstances with the permission of the student’s parent, the superintendent, the teacher, and the guidance counselor. However, respondent claims that it considered petitioner’s request in a May 1997 executive session and decided that no special circumstances existed in this instance.

Initially, I will address respondent’s procedural contentions. Respondent contends that this petition should be dismissed as untimely. Respondent alleges that it denied petitioner’s final request for relief by letter dated July 9, 1997 and this appeal was not filed until September 13, 1997, more than 30 days after the July 9th letter. Section 275.16 of the Commissioner’s regulations requires that an appeal be instituted within 30 days after the making of the decision or the performance of the act of which the petitioner complains, provided that the Commissioner may excuse a delay in commencing an appeal for good cause shown. The record reflects that petitioner did not receive respondent's July 9, 1997 determination letter until August 14, 1997. Specifically, petitioner included in her reply a letter dated August 12, 1997 wherein she asks the board why she never received a reply to her June 11, 1997 letter. Presumably, petitioner would have had no reason to send this letter if she had actually received the July 9 letter. Additionally, respondent could produce no proof that its letter to petitioner had actually been sent on July 9. I have previously held that where a question exists as to whether or not a petitioner received a determination letter, the interests of justice would not be served by dismissing the appeal as untimely (Appeal of Eatemadpour, 37 Ed Dept Rep 178). Since it appears that petitioner may not have received notice of the board’s final decision until August 14, 1997, I will not dismiss the appeal as untimely.

Respondent also contends that this appeal is moot. Specifically, respondent alleges that the school year has ended, that petitioner’s son graduated, was accepted into the college of his choice, and that there is no way he can "drop" a course which he has completed. The Commissioner of Education will only decide matters that are in actual controversy and will not render a decision upon facts that no longer exist or which subsequent events have laid to rest (Appeal of Fatjo, 35 Ed Dept Rep 438; Appeal of Lanior, 34 id. 562,). If petitioner had only asked that her son be allowed to withdraw from the calculus course this appeal would be moot. Petitioner, however, also requests expungement of her son’s grade in the course from his record. Furthermore, petitioner argues that her son has enrolled in a two year junior college, which will necessitate his transfer to a four year school, and a review of his high school transcript, which will include his calculus grade. Accordingly, I will not dismiss this appeal as moot due to petitioner’s request for expungement.

The appeal, however, must be dismissed on the merits. Class attendance and student grading are within the broad discretion of the board of education. Education Law "1709(3) grants 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 are left to the teacher and ultimately with the board of education (Education Law "1709[3]). When a student challenges a final grade, he bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Gaynor, 36 Ed Dept Rep 210; Appeal of Marcia E., 35 id. 331; Appeal of Timbs, 29 id. 392). Barring a showing that a grade determination was arbitrary, capricious or unreasonable it will not be set aside (Appeal of Gaynor, supra; Appeal of Marcia E., supra).

Upon my review of the record, I do not find respondent’s actions in this matter to be arbitrary, capricious or unreasonable. There was never any allegation by petitioner that the low grades her son received were undeserved. Rather, she claimed that her son did not belong in the advanced calculus class, that he had no rapport with the teacher, and that the teacher was unsympathetic to his efforts to learn the material. Based on these contentions I find no reason to set aside the grade conferred upon petitioner’s son.

Moreover, I find that respondent’s policy of not allowing a class to be dropped after the first two weeks of school was reasonable and consistently applied during the past five years. Although respondent modified this policy in January of 1997 to allow a course to be dropped after the first two weeks of school when special circumstances existed, petitioner was eventually allowed to ask respondent to consider her request under this modification. Upon consideration, respondent found that no special circumstances existed in Earl’s case. It was well within respondent’s discretion to so find. Though it is understandable that petitioner was concerned that her son’s otherwise good academic record would be tainted by a low grade in calculus, it was reasonable for respondent to find that this alone did not rise to the level of a "special circumstance." Likewise, although petitioner argued that Earl’s concern over this low grade caused him to experience stress and lose sleep, respondent acted within its discretion in determining that such factors did not constitute a sufficiently special circumstance to warrant his withdrawal from the class. Because the board acted within its discretion in denying petitioner’s request to allow her son to withdraw from calculus, and because the low grade itself was not challenged, I find there is no basis for me to expunge the grade from this student's record.