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Decision No. 14,197

Appeal of DIANE PIGMAN, on behalf of JOHN PAUL PIGMAN, JR., from action of the Board of Education of the Waterloo Central School District regarding a diploma.

Decision No. 14,197

(August 23, 1999)

McGowan and Brownell, P.C., attorneys for respondent, William McGowan, Esq., of counsel

CATE, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Waterloo Central School District to grant her son a high school diploma. The appeal must be dismissed.

On or about March 1, 1999, petitioner, on behalf of her son, John Paul Pigman, Jr., asked the Board of Education of the Waterloo Central School District ("respondent") to waive the diploma requirement of a passing grade on the Regents Competency Test in Global Studies (the "test"). Apparently, John had taken and failed the test seven times. By letter dated March 2, 1999, the superintendent of schools advised petitioner that her request was denied because the district did not have the authority to waive the test requirement. This appeal ensued.

Petitioner claims that John should be awarded a high school diploma even though he did not receive a passing grade on the test. She alleges that John fulfilled all other diploma requirements, but has a learning disability that prevents him from passing the test.

Respondent has not submitted papers in opposition, despite an extended opportunity to do so.

In an appeal before the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested (Appeal of Jungas, 37 Ed Dept Rep 519, Decision No. 13,916). I will not substitute my judgment for that of a board of education unless I feel that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Schrier, 33 Ed Dept Rep 656, Decision No. 13,184).

In this case, respondent has acted properly and in compliance with law. 8 NYCRR "100.5(a)(4)(e)(1) requires that students who first enter grade nine prior to September 1998 pass either the Regents Competency Test in global studies or the Regents Exam in global studies. John did not take the Regents exam, and, despite his very best efforts, did not pass the Regents Competency Test. There is no provision in the regulations for a waiver of the test requirement. Thus, respondent correctly denied petitioner's request, and I am similarly constrained to do so.

I note that while this result may seem harsh, particularly given John's persistent efforts to pass the test, it is the only result permitted under law. The test requirement is not a meaningless precondition to a diploma. It represents the best means available to accurately measure a student's knowledge in a particular subject. The award of a diploma based upon the passing of exams is intended to reflect that the student has attained a prescribed level of academic achievement. To award a diploma when the student has not, in fact, demonstrated such achievement serves neither the student in question nor other students who are similarly evaluated under the system.

Petitioner indicates that John has a learning disability that prevents him from passing the test. She has attached to her petition copies of educational and psychological evaluations performed in 1992, when John was twelve years old. These evaluations reveal a young man with numerous academic and social strengths, but struggling with a clearly identified "severe learning disability." There is no indication in the record, however, that John was referred to the district's Committee on Special Education for an evaluation, classified as a student with a disability, and educated pursuant to an Individualized Education Program ("IEP"). If no such referral and classification was made, it is apparent from the record that it should have been. An IEP and the provision of special services (beyond the remediation provided by the district) may have helped John achieve his educational goals without the necessity of taking seven Global Studies tests. If, in fact, John has been classified, then he is eligible for a local certificate pursuant to 8 NYCRR "100.6, rather than a regular diploma.

Finally, I note two additional options available to John. John has the right to continue to attend public school until the age of 21, if he so wishes. Further, he has the opportunity to pursue a General Equivalency Diploma ("GED") after leaving school.