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Decision No. 14,561

Appeal of K.S. from action of Laura Sherwood, Superintendent of Schools of the City School District of the City of Elmira, and Carol Kennedy, orchestra teacher, regarding student grading.

Decision No. 14,561

(April 19, 2001)

Barney, Grossman, Dubow & Marcus, attorneys for petitioner, John C. Barney, Esq., of counsel

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

MILLS, Commissioner.--Petitioner appeals the determination of the Superintendent of Schools of the City School District of the City of Elmira ("respondent Sherwood") to uphold the assignment of a failing grade in orchestra for the second semester of the 1999-2000 school year. The appeal must be sustained in part.

During the 1999-2000 school year, petitioner, then a junior, was enrolled in orchestra class taught by respondent Kennedy at Elmira Free Academy ("EFA"), a high school in the Elmira City School District. Petitioner had previously taken orchestra from Ms. Kennedy during her freshman and sophomore years, receiving grades of 98 and 97, respectively. At the beginning of her junior year, petitioner had a conflict with the orchestra class and her Advanced Placement Physics Lab. An arrangement was reached with the principal that allowed K.S. to attend each class every other day. She was also granted an exemption from school sponsored violin lessons, as long as she arranged to take private lessons outside of school. By the end of the first semester, petitioner’s orchestra grades began to decline. She received a 95 for the first marking period, a 93 for the second marking period and an 87 for the third marking period.

Because petitioner was concerned about the adverse impact a low orchestra grade would have on her overall grade point average, petitioner and her parents approached the principal, John Walker, with a proposal for K.S. to take orchestra on a pass/fail basis. Mr. Walker agreed to this and by letter dated February 11, 2000, confirmed the arrangement. K.S.’s orchestra grades for the second semester were a "P" for the fourth marking period, an "F" for the fifth marking period, and an "F" for the sixth marking period. She was given an "F" overall for the second semester and not awarded any credit for that semester.

At the request of petitioner’s attorney, respondent Sherwood agreed to review the matter of the failing grade. By letter dated August 1, 2000, respondent Sherwood advised petitioner’s parents that no change in the grade would be made. Additional negotiations between petitioner’s attorney and respondents took place during the month of September 2000. By letter dated September 27, 2000, respondent Sherwood offered petitioner the option of taking a final grade of 79 (this was the average of all numerical grades for the six marking periods) for the one year orchestra course or an "F" for the second semester. Petitioner did not accept this offer and on October 3, 2000, her attorney appealed respondent Sherwood’s decision to the board of education. By letter dated October 19, 2000, the board declined to hear petitioner’s appeal. This appeal ensued.

Petitioner contends that her performance in orchestra did not warrant the poor grades she received from respondent Kennedy. She asserts that Ms. Kennedy became hostile to her due to her attending the class only part-time per the agreement with Principal Walker. She claims that at the time she was failing orchestra with Ms. Kennedy, her private violin lessons were going extremely well, she received an "A" rating on a string solo at the New York State School Music Association’s All-State Spring Evaluation Festival, and remained as third chair for violin in the school orchestra. Petitioner also disputes the manner in which her written tests were graded by Ms. Kennedy, maintaining that answers marked incorrect were actually correct.

Additionally, petitioner alleges that her overall grade for the year in orchestra should be a "pass." She claims that the agreement made with Principal Walker included a pass/fail grade for the first semester as well as the second semester. Petitioner maintains that her numerical grades for the second semester were 77, 58, and 64, which, if averaged with the first semester grades, would give her a final grade of 79. Since 65 is considered a passing grade by the school, petitioner contends she passed orchestra for the year. Petitioner asserts that she made the arrangement to take orchestra on a pass/fail basis to keep her grade point average up and remain in contention for senior class valedictorian. She also alleges that due to the grade she received, she is not taking orchestra class her senior year. Petitioner asks that her grades for the fifth and sixth marking periods be modified to "pass," and that she be given an overall grade of "pass" for the entire year of orchestra.

Respondents claim that petitioner was graded fairly in orchestra. Respondents contend that petitioner developed a poor attitude concerning orchestra, was disrespectful in class, did not complete the assigned work, and that her playing ability deteriorated. Respondents maintain that it was never agreed that petitioner would receive a pass/fail grade for the entire year; rather the agreement was to apply only to the second semester of orchestra. Respondents assert that two "F’s" out of three marking periods warrants a semester grade of "F", numerical grades notwithstanding.

Respondents also allege that they went to great lengths to accommodate K.S.’s schedule to allow her to remain in orchestra. They claim petitioner’s success in private lessons and in a statewide competition is irrelevant to her ability to play in an ensemble. Respondent Kennedy also explains that she assigns chair status in September, and does not change it until the following September.

Respondents further assert that petitioner has failed to state a claim upon which relief may be granted, and that she has failed to demonstrate that the determination of petitioner’s grade was arbitrary, capricious, or unreasonable. Finally, respondents object to petitioner’s reply papers on the grounds that they are untimely and contain new information.

I will initially address respondents’ objection concerning the timing of petitioner’s reply papers. The record reflects that my Office of Counsel granted petitioner an extension until December 24, 2000, to serve a reply and that petitioner served her reply papers on December 22, 2000. Accordingly, I find that the reply was timely served. I have reviewed the reply affidavits submitted by petitioner, and find that they respond directly to factual assertions submitted by respondents in their answering affidavits. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14). It is not meant to buttress allegations in the petition or add assertions or exhibits that should have been in the petition (Appeal of Cieslik, et al, 40 Ed Dept Rep ___, Decision No. 14,478; Appeal of Sadue-Sokolow, 39 id. 6, Decision No. 14,155; Appeal of Krantz, 38 id. 485, Decision No. 14,077). Petitioner’s reply affidavits do not add new claims or allegations not already included in the petition, and merely contest specific statements in the answer and supporting affidavits. Thus, I will consider the reply affidavits in my decision, as well as respondents’ surreply affidavit submitted to me on January 3, 2001.

Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law "1709(3); Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096; Appeal of Krom, 37 id. 459, Decision No. 13,905). 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 Shaver, supra; Appeal of Krom, supra; Appeal of Marcia E., 35 Ed Dept Rep 331, Decision No. 13,560). Barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Shaver, supra; Appeal of Krom, supra; Appeal of Baker-Stein, 37 Ed Dept Rep 401, Decision No. 13,889).

I find that petitioner has not met her burden of demonstrating that her fifth and sixth marking period grades were arbitrary, capricious or unreasonable. Respondents included in the record copies of petitioner’s written exams, which she failed. Respondents were also able to demonstrate that petitioner’s playing had not improved to Ms. Kennedy’s satisfaction, and her attitude in class was at times poor. However, in examining this record I do find that petitioner’s final grade of "F" for the second semester was arbitrary and capricious, in that it violates EFA’s grading policy.

EFA’s written grading policy states, "Pass/Fail grades are recorded in physical education, keyboarding, Pathways and independent studies." Although petitioner’s parents requested that she be allowed to take orchestra as an independent study, this request was denied. Thus, it appears that respondents violated EFA’s grading policy by simply allowing petitioner to take orchestra on a P/F basis, not as an independent study, for the second semester of the school year. By letter dated June 20, 2000, then superintendent Farinola acknowledged that the alternative P/F system for the second semester was an exception granted to only one student, petitioner, over the past 25 years. Thus, it appears that the P/F arrangement was made to accommodate one individual, petitioner, and was not applied as a policy of general applicability. Accordingly, I find that the decision to permit petitioner to take one semester of orchestra P/F was a violation of EFA policy and, therefore, was arbitrary and capricious.

In addition, I find the calculation of petitioner’s final grade to be irrational. EFA’s grading policy requires a full year course grade to be computed as follows: 1/8 for each of the six marking periods, 1/8 for the mid-term, and 1/8 for the final exam. As this record does not reflect a final exam grade for orchestra, the final grade should have been based on an average of the grades for the six marking periods and the midterm exam. As previously stated, petitioner should have received numerical rather than pass/fail grades for each marking period. Pursuant to EFA’s grading policy, all of petitioner’s numerical grades in orchestra must be averaged to generate her final grade. Using this calculation, it appears that petitioner would receive a final passing numerical grade for the course.


IT IS ORDERED that respondents calculate petitioner’s final numerical grade in orchestra for the 1999-2000 school year in accordance with EFA policy, and

IT IS FURTHER ORDERED that, in the event a passing numerical grade is achieved, that petitioner be given a full year of credit for that course.