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Decision No. 14,096

Appeal of SANDRA SHAVER, on behalf of MARCIE FITCH, from action of the Board of Education of the Downsville Central School District regarding grading.

Decision 14,096

(March 26, 1999)

Hogan & Sarzynski, LLP, attorneys for respondent, Wendy A. Kowalczyk, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Downsville Central School District ("respondent") to change her daughter’s failing grade in physical education. The appeal must be dismissed.

During the 1997-98 school year, petitioner’s daughter, Marcie, was a junior jointly pursuing a Regents Diploma at the Downsville Central School District ("Downsville" or "district") and a degree in cosmetology at the Robert W. Harrold campus of the Delaware-Chenango-Madison-Otsego Board of Cooperative Educational Services ("BOCES"). To pursue both courses of study, Marcie took classes in the morning at the district, and then travelled by school bus to the BOCES for afternoon classes.

Downsville’s high school encompasses grades seven through twelve and has a total enrollment of 156 students. As a result, during the 1997-98 school year Downsville offered only one Math III class. To enable Marcie to enroll in Downsville’s Math III class, the district rescheduled the class from an afternoon to a morning period. The rescheduled Math III class conflicted with the district’s physical education classes. Therefore, Marcie was permitted to enroll in independent physical education to fulfill the district’s physical education requirements.

Downsville offers students enrolled in independent physical education several options for satisfying the district’s physical education requirements. Initially, Marcie chose option 2, which required her to participate as a student leader in an elementary level physical education class. However, for the Spring semester, Marcie enrolled in the driver education program, which conflicted with her obligation to assist with the elementary physical education class. To accommodate Marcie, her guidance counselor allowed her to switch to option 3A, which required Marcie to participate in two sports during the year and maintain a sports journal.

Marcie chose to participate in basketball and softball. During the third quarter, Marcie sustained an injury, causing her to miss part of the softball season. The district then gave her the choice of switching to independent physical education option 3B for the fourth quarter, which would require her to complete five reports.

The record reflects that although Marcie resumed participation on the softball team on April 1, 1998, she was removed from the team on May 21, 1998 due to her inconsistent attendance at games and practices. For the fourth quarter, Marcie did not submit the sports journal, a requirement of option 3A, or complete the five reports, a requirement of option 3B. Both petitioner and Marcie had been advised that if Marcie failed to submit a sports journal, she would receive a failing grade for the fourth quarter and might also fail the course for the year because the district required 80 percent participation in physical education to earn academic credit.

Since Marcie failed to complete the independent physical education requirements for the fourth quarter, she received a zero for participation and a failing grade for the quarter. After the district determined that Marcie’s average class participation over all four quarters of the 1997-98 school year was only 75 percent, she was denied academic credit for the physical education course.

By memorandum dated June 11, 1998, petitioner appealed the decision to deny her daughter academic credit for physical education. In addition, petitioner appeared before respondent board on July 27, 1998. By letter dated August 6, 1998, respondent’s superintendent informed petitioner that he would not override the decision to deny her daughter credit for physical education for the 1997-98 school year, but would allow Marcie to earn extra credit to offset the zero she received for class participation in the fourth quarter by participating in additional physical education during the 1998-99 school year. Petitioner commenced this appeal on September 6, 1998.

Although petitioner does not claim that Marcie satisfied all the requirements for her independent study, she requests that I override respondent’s decision to give Marcie a zero for the fourth quarter and refusal to give her credit for physical education on the grounds that Marcie should have received some participation credit for her activities during the fourth quarter. Petitioner contends that if that participation is taken into account, Marcie’s average class participation over all four quarters of the 1997-98 school year would exceed the district’s 80 percent threshold for academic credit.

Respondent contends that Marcie was properly assigned a zero for the fourth quarter based on her failure to complete the requirements for independent physical education and properly denied academic credit for physical education because of her failure to achieve a final average of 80 percent participation over the four quarters of that course during the 1997-98 school year, as required by the district’s policy. In addition, respondent raises a number of procedural objections, contending that the petition does not comply with the requirements of "275.10 of the Commissioner’s regulations because it does not contain a clear and concise statement of the facts; that petitioner lacks standing because her daughter is emancipated; and that the appeal is untimely. Further, by letter dated November 1, 1998, respondent objects to petitioner’s reply papers on the grounds that they are untimely and contain new information.

I will initially address respondent’s procedural objections. As to respondent’s objection to the timing of petitioner’s reply papers, the record reflects that my Office of Counsel granted petitioner an extension until November 6, 1998 to serve a reply and that petitioner served her reply papers on that date. Accordingly, I find that the reply was timely served. However, the purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or to add belatedly assertions that should have been in the petition (Appeal of Lippmann, 38 Ed Dept Rep 310; Appeal of Lee D., 38 id. 262). Accordingly, I will only consider those portions of petitioner’s reply that are responsive to new material or affirmative defenses set forth in the answer.

Turning to respondent’s claim that the petition does not comply with "275.10 of the Commissioner’s regulations, that regulation provides:

The petition shall contain a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled. Such statement must be sufficiently clear to advise the respondent of the nature of petitioner’s claim and of the specific act or acts complained of.

Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate, absent prejudice to the opposing party (Appeal of Smith, 37 Ed Dept Rep 583). Although the petition is somewhat unclear, respondent was able to adequately address petitioner’s allegations in its answer, and therefore has not suffered any prejudice. Accordingly, I decline to dismiss the petition on this basis.

I also find no merit to respondent’s claim that petitioner lacks standing. Respondent has failed to supply any proof to support its allegation that petitioner’s daughter is an emancipated minor. In her reply papers, petitioner asserts that she and Marcie’s father fully support Marcie. In the absence of proof of emancipation, a parent may petition on behalf of her child to challenge a grading matter (Appeal of John W., 37 Ed Dept Rep 713).

With respect to timeliness, an appeal to the Commissioner of Education must be brought within 30 days of the making of the decision or act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Nicotri, 38 Ed Dept Rep 80). The record indicates that respondent’s superintendent advised petitioner of respondent’s decision by letter dated August 6, 1998 and petitioner admits receiving it that same day. The 30-day period within which to file an appeal would therefore expire on September 5, 1998, a Saturday. However, pursuant to General Construction Law "25-a, "[w]hen any period of time, computed from a certain day, within which or after which or before which an act is required to be done, ends on a Saturday, Sunday or a public holiday, such act may be done on the next succeeding business day…". Accordingly, because the 30-day appeal period expired on a Saturday, the time for serving the petition was extended to the next succeeding business day. I note that Monday, September 7, 1998, was Labor Day. Therefore, petitioner had until Tuesday, September 8, 1998 --the next succeeding business day-- to commence this appeal. Respondent indicates that it received the petition on September 8, 1998. Accordingly, I find the petition timely.

The appeal must, however, be dismissed on the merits. Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law "1709(3); Appeal of Krom, 37 Ed Dept Rep 459). 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 Krom, supra; Appeal of Gaynor, 36 Ed Dept Rep 210; Appeal of Marcia E., 35 id. 331). Barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Krom, supra; Appeal of Baker-Stein, 37 Ed Dept Rep 401; Appeal of Goloski, 34 id. 565).

Petitioner has failed to demonstrate that her daughter completed the independent study requirements of either option 3A or 3B for the fourth quarter. The record reflects that Marcie did not successfully complete her participation in softball, and failed to turn in a journal, both of which were required under option 3A. Likewise, Marcie did not complete the five research papers needed to satisfy option 3B.

I have previously upheld grading policies that require minimum attendance for students to receive academic credit (Appeal of Barbara H., 37 Ed Dept Rep 719; Appeal of Ehnot, 37 id. 648; Appeal of Pasquale, 36 id. 290). In light of Marcie’s sporadic softball attendance, as well as her failure to submit either the five reports or a journal for the fourth quarter, I do not find that respondent abused its discretion in assigning Marcie a zero for class participation in the fourth quarter. Nor was it an abuse of discretion for respondent to deny Marcie academic credit for physical education for the 1997-98 school year. Petitioner and her daughter were informed of the district’s policy requiring 80 percent participation for the year for a student to receive academic credit for a course. Marcie’s final participation grade, calculated by averaging her four quarterly participation grades, was 75 percent, and thus insufficient for her to obtain credit for the course. Although reasonable minds can disagree as to how the grade should be calculated, I will not substitute my judgment for respondent’s unless there is a clear showing that respondent was arbitrary, capricious or unreasonable. I cannot conclude on the record before me that the decision to give Marcie a zero for participation for the fourth quarter, or that the calculation of her final grade based on the average of her four quarterly grades, was unreasonable.

Furthermore, it is apparent from the record that the district made substantial efforts throughout the school year to assist Marcie in satisfying her independent physical education requirements by allowing her to switch options mid-year, and by its flexibility in awarding her credit for her inconsistent participation during the third quarter. More significantly, respondent’s superintendent has agreed to permit Marcie to earn extra credit to offset the zero she was assigned for insufficient participation in the fourth quarter of the 1997-98 school year by participating in additional physical education during the 1998-99 school year. Under these circumstances, I do not find respondent’s refusal to change Marcie’s physical education grade to be an abuse of discretion.