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Decision No. 14,507

Appeal of DANIEL HANRAHAN, on behalf of his daughter RACHELLE, from action of the Board of Education of the Deposit Central School District regarding the denial of course credit.

Decision No. 14,507

(December 15, 2000)

Chernin & Gold, LLP, attorneys for petitioner, Michael T. Baker, Esq., of counsel

Hogan & Sarzynski, LLP, attorneys for respondent, John P. Lynch, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Deposit Central School District ("respondent") to deny his daughter, Rachelle, course credit due to excessive absences. The appeal must be dismissed.

Respondent has an attendance policy which states that a student may not miss more than 15% of scheduled classes for a given course. Absence in excess of 15% results in a loss of credit for the course. According to the policy, the maximum number of absences a student may incur is 27 days for a full-year course, and 14 days for an alternate day or one-semester course. Parents are to be notified by the district when an accumulation of absences puts a student in jeopardy of losing course credit. All absences are counted toward a loss of credit; however, a student with an excused or legal absence, as defined in the policy, can be provided with an opportunity to perform make up work to regain lost credit. According to the policy, the building principal is responsible for determining whether or not a make up opportunity is warranted.

On June 5, 2000 Rachelle, a senior at respondent’s high school, was informed by Principal Edward Shirkey that she could no longer attend her government class, and would not be permitted to take the final exam due to an accumulation of excessive absences. Rachelle had missed 36 of 90 government classes, but had successfully made up work for 11 classes. Petitioner appealed this decision to respondent board and asked the board to allow his daughter to attend class and take the final examination on June 12 and 13. At a June 12, 2000 meeting, counsel for petitioner addressed the board, however, the board upheld the original decision. This appeal ensued. Petitioner’s request for interim relief was denied on June 28, 2000.

Petitioner contends that his daughter’s exclusion from the government class is due solely to the accumulation of absences, which he claims is a violation of precedent established by the Commissioner. Because respondent’s policy permits such exclusion to occur, and because it gives the building principal the discretion to determine which students are provided with the opportunity to make up missed classes, petitioner maintains that the policy is invalid. Petitioner also alleges that his daughter’s absences were the result of an ongoing medical condition, and that she, therefore, should have been provided with an opportunity to perform make up work to regain lost credit. Finally, he maintains that it was unfair to inform Rachelle on June 5 that she was barred from the class, leaving no opportunity for her to complete make up classes prior to graduation.

Respondent claims that petitioner was on notice beginning in December 1999 that his daughter had a number of absences from various classes. Respondent alleges that no fewer than eight letters were sent to petitioner between December 1999 and May 2000 advising him of his daughter’s attendance problem. Respondent maintains that Rachelle made up some of her missed class work, but not a sufficient amount to permit her to remain in the class, as she exceeded the maximum number of allowable absences.

Additionally, respondent alleges that petitioner, his daughter and their attorney were present at the June 12 school board meeting and were all given an opportunity to be heard by the board. Respondent also notes that Rachelle was offered an opportunity to attend summer school to make up the government class. Finally, respondent contends that the appeal is moot.

I will first address the mootness issue. The Commissioner of Education will only consider 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 Shramek, 39 Ed Dept Rep 577, Decision No. 14,317; Appeal of Studley, 38 id. 258, Decision No. 14,028; Appeal of Lascala, 38 id. 16, Decision No. 13,974). This is especially true when petitioner has sought interim relief as to all or most of his claim, and that relief has been denied (see, e.g., Appeal of Shramek, supra; Appeal of Studley, supra; Appeal of Lascala, supra). In this matter, petitioner requests that his daughter be allowed to attend the government class, take the final exam in that class, and to graduate with her class. Insofar as petitioner seeks Rachelle’s reinstatement into this class, the appeal is moot. However, I will not dismiss the entire appeal as moot since petitioner disputes the validity of respondent’s attendance policy and the denial of credit based on that policy.

A board of education may adopt a policy requiring minimum attendance for students to receive academic credit (Appeal of Pasquale, 36 Ed Dept Rep 290, Decision No. 13,727; Appeal of Hansen, 34 id. 235, Decision No. 13,292; Appeal of Ackert, 30 id. 31, Decision No. 12,383). However, such attendance policy may not distinguish between excused and unexcused absences for the purposes of imposing the academic sanction of the denial of course credit (Appeal of Tokarz, 39 Ed Dept Rep 172, Decision No. 14,205; Appeal of Pasquale, supra; Appeal of Hansen, supra). In determining a student’s attendance grade, it is irrelevant whether a student’s absence on any particular day is excused or not because, in either case, the student missed the opportunity for classroom participation (Appeal of Tokarz, supra; Appeal of Pasquale, supra; Appeal of Shepard, 31 Ed Dept Rep 315, Decision No. 12,651).

Respondent’s attendance policy does not distinguish between an excused or unexcused absence for purposes of denying course credit and is, therefore, valid (Appeal of Barbara H., 37 Ed Dept Rep 719, Decision No. 13,966). Furthermore, the policy provides for notice to parents if a student is in jeopardy of losing course credit for excessive absences. In accordance with its policy, respondent began notifying petitioner in December 1999 of his daughter’s precarious attendance situation throughout the school year. At least two of these notices advised petitioner of Rachelle’s excessive absences in government.

Respondent’s policy also permits a student to make up work in the case of excused absences. It appears that Rachelle made up a number of missed classes, though not enough to meet the minimum attendance requirement established by respondent’s policy. In the instant appeal, petitioner claims that Rachelle should have been allowed to make up additional classes. However, it is unclear from the record before me whether all of Rachelle’s absences were excused and therefore eligible for a make up opportunity. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR " 275.10; Appeal of Baker, 39 Ed Dept Rep 690, Decision No. 14,350). Accordingly, there is no basis for me to find that respondent acted in an arbitrary or capricious manner in denying Rachelle course credit.