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Decision No. 14,268

Appeal of MARINO and KATHLEEN BASELICE, on behalf of their daughter MARY ELIZABETH BASELICE, from action of the Board of Education of the Bethlehem Central School District regarding student grading.

Decision No. 14,268

(December 21, 1999)

O’Connell and Aronowitz, attorneys for petitioners, Thomas J. DiNovo and Tina Marie Chericoni, Esqs., of counsel

Kaplowitz, Murphy, Runion, Fritts & Whiting, attorneys for respondent, Roger M. Fritts, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Bethlehem Central School District ("respondent") to rescind a zero awarded to their daughter on an assignment. The appeal must be dismissed.

During the 1996-97 school year, petitioners’ daughter was a junior at Bethlehem High School and was enrolled in a British Literature class taught by Ms. Goldrich. On November 6, 1996, Ms. Goldrich assigned a paper, which was due on November 22, 1996. Ms. Goldrich had previously published and distributed an evaluation policy that clearly stated that late papers would receive a zero. Ms. Goldrich reviewed the policy upon each new assignment and reminded students to avoid waiting until the last minute to complete assignments.

Petitioners allege that their daughter unsuccessfully attempted to meet with Ms. Goldrich the day before the paper was due. They further allege that, the night before the due date, their daughter was unable to print her paper at home due to mechanical difficulties with her printer. On November 22, 1996, she unsuccessfully attempted to print the paper at her father’s office, a friend’s house and at school. Petitioners’ daughter did not submit a paper on the November 22 due date and received a grade of zero.

Mr. Baselice discussed his daughter's grade with Ms. Goldrich, the building principal and the superintendent of schools. Petitioners’ daughter rejected an offer to submit a second paper. The grade for this paper would have been averaged with her other grades including the zero.

By letter dated May 9, 1997, the superintendent advised Mr. Baselice that, after speaking with Mary Elizabeth's teacher and respondent board, he would not overturn the zero, that his decision was the district's final decision and that any appeal would have to be directed to the Commissioner of Education. On May 16, 1997, Mr. Baselice wrote to each member of respondent board asking for an opportunity to discuss the matter. On May 28, 1997, the superintendent sent petitioners another letter reaffirming the finality of his previous determination. Petitioners commenced this appeal on June 26, 1997. On July 7, 1997, petitioners’ request for interim relief was denied.

Petitioners ask that I order respondent to rescind the zero awarded to their daughter on the ground that Ms. Goldrich’s grading policy is arbitrary and has not been applied consistently. Additionally, petitioners contend that respondent should have afforded petitioners a hearing. Respondent contends that the appeal must be dismissed as untimely and denies that its actions were arbitrary or capricious.

As a threshold matter, the appeal must be dismissed as untimely. An appeal to the Commissioner of Education must be commenced within 30 days of the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Phillips, 38 Ed Dept Rep 297, Decision No. 14,038). The final decision on the grade was issued on May 9, 1997. Thus, this appeal, commenced some 48 days after the final determination, is untimely. Moreover, numerous Commissioner's decisions have held that requests for reconsideration do not extend the time in which to commence an appeal (see, e.g., Appeal of Schonfeld, 38 Ed Dept Rep 306, Decision No. 14,040). Accordingly, the appeal is dismissed as untimely.

Additionally, the appeal must be dismissed as moot. The Commissioner of Education only decides matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of McConnon, 37 Ed Dept Rep 691, Decision No. 13,959). Petitioners’ daughter has graduated from Bethlehem High School and is no longer a student in respondent's schools. Thus, any finding with respect to the appropriateness of the grade is, at this point, academic. Accordingly, the appeal is dismissed as moot.

Even if this appeal were not dismissed on procedural grounds, I would dismiss it on the merits. It is well established that the Commissioner will not substitute his judgment for that of school officials with regard to the determination of a student's grade absent a clear showing that the determination was arbitrary, capricious or unreasonable (Appeal of Megan M., 38 Ed Dept Rep 807; Decision 14,149; Appeal of John W. and Lorraine W., 37 id. 713, Decision No. 13,965; Appeal of Hickey, 32 id. 12, Decision No. 12,741). On the record before me, petitioners have failed to meet this burden.