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Decision No. 14,329

Appeal of ROBERT and MARY ANN SCHMITT, on behalf of ANDREW REED, from action of the Board of Education of the City School District of the City of Elmira regarding grading.

Decision No. 14,329

(March 30, 2000)

Davidson & O'Mara, P.C., attorneys for respondent, Weeden A. Wetmore, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the City School District of the City of Elmira ("respondent") to uphold the final exam grade awarded to their son, Andrew ("Andy"). The appeal must be dismissed.

Andy was enrolled in an Economics course at respondent’s high school during the 1998-99 school year. The final exam grade for this course was based on a final research paper and oral presentation. On January 22, 1999, the day that Andy’s paper and oral presentation were due, Andy informed his teacher, Debra Parrish, that he had been unable to print his paper because the printer cartridge in his home computer had run out of ink. He proceeded to give his oral presentation and handed in his paper the following Thursday. Ms. Parrish gave Andy a grade of 85 for the final exam, after deducting 10 points due to its late submission. Petitioners appealed the grade reduction to Ms. Parrish, the high school principal, the associate superintendent, the interim superintendent and respondent, all of whom declined to change Andy’s final exam grade. This appeal ensued.

Petitioners allege that Ms. Parrish’s grading policy did not advise students that they would be penalized for submitting late work. Petitioners claim that Andy’s paper should not be considered late because Ms. Parrish gave him permission to turn the paper in the following week. They ask that Andy’s final exam grade be changed to a 95, his final course grade be recalculated and his transcript be revised.

Respondent contends that Ms. Parrish's grading policy addressed the late penalty. Respondent alleges that the policy submitted by petitioners is an older version from the previous school year that may have inadvertently been distributed at a parents' event. Respondent alleges that Ms. Parrish repeatedly informed the class of the penalty for late work and that Andy was aware of this policy. Respondent maintains that the petition should be dismissed on a number of procedural grounds, including timeliness, and asserts that its decision was reasonable.

Initially, I must address petitioners' reply which raises new issues and allegations. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer, and is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been in the petition (8 NYCRR ""275.3 and 275.14; Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). Accordingly, while I have examined petitioners' reply, I have not considered those portions that constitute new allegations which are not responsive to new material or affirmative defenses set forth in the answer.

I also note that Andy has apparently graduated from Elmira Free Academy and is no longer a student in respondent's schools. Petitioners, however, have specifically requested that respondent revise Andy's transcript. Therefore, I decline to dismiss this matter as moot (see, Appeal of Baselice, 39 Ed Dept Rep ___, Decision No. 14,268).

Turning to the timeliness issue, 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). Petitioners appeared before respondent at its July 1, 1999 meeting and commenced this appeal on September 7, 1999. Sometime after the July 1 meeting, respondent’s interim superintendent offered petitioners an impartial hearing to be held during the first two weeks of August. Due to scheduling conflicts, he withdrew this offer by letter dated July 29, 1999, and advised petitioners that they could appeal to the Commissioner of Education.

On the record before me, it appears that the interim superintendent's letter represents the final decision of the district. Petitioners, however, filed this appeal more than 30 days from the superintendent’s letter. Petitioners contend that they spoke to respondent’s president on August 18, 1999 and were told they would receive a letter of explanation, which they did not receive. In any case, it appears that petitioners were merely requesting reconsideration of the final decision. Prior Commissioner’s decisions have held that requests for reconsideration do not extend the time in which to commence an appeal (Appeal of Decker, 39 Ed Dept Rep 62, Decision No. 14,173; Appeal of Jane G., 38 id. 1, Decision No. 13,969). Therefore, the appeal must be dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, I would dismiss it on the merits. It is well settled 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. The only evidence they offer is unverified copies of a course outline they claim were given to Andy and another student by Ms. Parrish which do not specifically address penalties for the late submission of assignments. In her affidavit, Ms. Parrish disputes this claim and submits a policy she asserts she distributed to Andy’s class which shows that a five-point penalty will be assessed for each day an assignment is late. Ms. Parrish further states that she repeatedly reminded Andy’s class of the penalty for late work and that she specifically told Andy to hand his paper in on Monday, January 25, 1999, but that he failed to do so until Thursday, January 28. Although Andy's paper was more than two days late, Ms. Parrish only deducted 10 points from his grade in view of his explanation concerning his computer printer problems.

Respondent also submits affidavits from the high school principal, associate superintendent and interim superintendent explaining their roles in reviewing and upholding Andy’s grade reduction. Based on the record before me, I cannot conclude that respondent’s determination was arbitrary, capricious or unreasonable.

In light of this decision, I need not address respondent's remaining procedural objections.