MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Addison Central School District ("respondent") to permit her daughter to withdraw from a class and subsequent award of a failing grade for such class. The appeal must be dismissed.

During the 2000-2001 school year, petitioner's daughter was a senior in respondent's district and needed credit in English, history and physical education in order to graduate. In her first semester, she was enrolled in 6 classes, two study halls and an additional 21-minute study break during her lunch period. In her second semester, the student was assigned eight classes and had a 21-minute study break during her lunch period. Petitioner asked school authorities why her daughter was being assigned to additional classes during the spring semester and was informed that the classes were designed to prevent seniors from having an excessive number of study halls that could result in a loss of interest in school, increased truancy and objectionable behavior.

In May 2001, petitioner's daughter went to the guidance office to discuss her withdrawal from a class entitled "Studio in Advertising/Graphic Arts." A staff member at the guidance office told her that the staff member would speak with the senior high school guidance counselor.

In an essay she subsequently wrote for her English class, the student set forth her reasons for wanting to withdraw from the advertising/graphic arts class. She stated that she had worked hard during the entire time she was in high school so that she could have some free time in her senior year. The student believed that the class "wasted my time and energy that was required elsewhere" and that the class "will not even slightly affect my future." She also expressed concern with a requirement that each student in the class complete a thirty-second commercial. She states that her art teacher, while showing her class videos of previous students' commercials, had made negative comments on them while students in the class laughed adding to her concern that this would occur with respect to the commercial she would prepare.

On or about May 29, 2001, petitioner's daughter spoke with the art teacher about withdrawing from the class. Petitioner alleges that the teacher told her daughter that he would not allow her to withdraw and refused to discuss the matter further. Respondent alleges that the art teacher told the student that it was too late to withdraw from a semester course at that date and that her continued refusal to complete the assigned class work could result in her receiving a failing grade for the marking period or the semester. Petitioner's daughter then left the class and went to the guidance office to speak with the senior high school guidance counselor. Upon learning that the guidance counselor was out of the office, the student went to the main office to discuss the matter with the high school principal, and was informed that the principal had received a student conduct report from her art teacher because she had left the art class without permission. The principal then called petitioner to set up a conference to discuss the student conduct report.

On May 30, 2001, the principal met with petitioner, her daughter, and the art teacher to discuss the conduct report and the student's request to drop the art class. The principal stated that petitioner's daughter could not withdraw from the class because students may only withdraw during the first three weeks of instruction and that the withdrawal period had already concluded. Petitioner stated that her daughter could not attend the scheduled detention for failing to complete an assignment because of her part-time employment, and asked whether she, in lieu of detention, could instead receive a zero for the assignment. Petitioner was told that this is not permitted under the district's "Zero Tolerance for Zeros" policy.

On May 31, 2001, petitioner met with the district's superintendent of schools to discuss her daughter's withdrawal and assignment to detention, and on June 1, 2001, petitioner had a phone conversation with the principal, but was unable to resolve the matter to her satisfaction.

On June 1, 2001, petitioner's daughter wrote a letter to the high school principal notifying him that she was dropping the art class and requesting the expungement of her grade from this class from her record. She further indicated that having no study halls and trying to meet the requirements of the eight classes to which she was assigned had become overwhelming; that the requirement that she complete a video would cause her embarrassment; and that she didn"t believe she could receive a fair grade for the class as a result of a total lack of rapport with the art teacher and the negative feelings he expressed towards her. She also contended that the district's withdrawal policy was being inconsistently applied.

In his response dated June 7, 2001, the principal denied her request to drop the art course. The principal stated that students are allowed to drop a semester course during the first three weeks of the marking period and in the first six weeks of a full-year course and that the student, teacher, parent, guidance counselor and administrator must agree in order for the student to be permitted to drop the class during such period.

The principal further stated that in January he directed the guidance department to suggest to all seniors that they take a full schedule of classes, because excessive study halls cause students to lose interest in school, encourages truancy and objectionable behavior. The principal stated that, contrary to the assertion in her letter that she had no study halls, petitioner's daughter had a 21-minute study break available to her during the lunch period. The principal also challenged her assertion that the eight classes had become overwhelming, in view of her good grades and her class average, which included the art course she sought to withdraw from.

The principal stated that petitioner's daughter had failed to submit her weekly sketch assignments for the art class as she previously had agreed, and that the assignment sheet provides that a student who does not complete the assignment by the due date would be given a deficiency slip providing for after-school detention on Tuesday, and Saturday detention if the student failed to attend the Tuesday detention. The principal also indicated that he informed the student that the art teacher would permit her to complete an alternative assignment in an effort to address her concerns regarding the commercial video project.

The principal further noted that petitioner had declined his offer on June 1, 2001 to award her daughter a zero for the last 10 weeks of the art class and drop her from the class. The principal stated that, to his knowledge, no student was allowed to drop a class without receiving a failing grade for the class; that the student petitioner mentioned as an exception was assigned physical education, rarely went to class and was subsequently placed into an academic class for the second semester but would still be required to make-up his physical education credit next year. Finally, the principal stated that the student would receive a passing grade if she: (1) completes with a passing grade any make-up work assigned; (2) completes with a passing grade her assignments for the rest of the school year; and (3) receives a passing grade on the final exam.

On June 12, 2001, petitioner attended a meeting of the board of education to request her daughter"s removal from the art class. In a letter to petitioner dated June 18, 2001, the superintendent, on behalf of the board, stated that in December and January all seniors were called to the guidance office at the principal's request to be scheduled for additional classes to prevent them from having an excessive number of study halls, that petitioner's daughter was scheduled for the "Studio in Advertising Graphic Arts" class at that time; that a reasonable and consistent process was used for the scheduling of such additional classes; that the requests of students who sought to drop a class within the first three weeks by properly completing the appropriate forms with their reasons for seeking to drop the course were reviewed and a decision was timely rendered; that petitioner's daughter did not request to drop the course until well after the deadline and her request was denied; that petitioner's daughter will receive the grade from her art teacher, which will be computed in accordance with his grading policy; and that the petitioner's daughter will not be penalized for grades which she previously earned in accordance with the art teacher's grading policy applicable to all his students.

Petitioner commenced this appeal by serving a copy of her petition on the president of the board of education on June 25, 2001. Petitioner contends that respondent's determination is arbitrary and capricious to the extent that it has inconsistently applied its policies regarding the assignment of additional courses, withdrawal from a class and discipline for uncompleted assignments and has otherwise "targeted" her daughter to punish her for attempting to withdraw from the art class. Petitioner requests that I order respondent to expunge her daughter's grades for the art class from the student's records and that all student conduct reports/deficiency slips accumulated from the last five weeks of the class be removed from her records.

Determinations as to programs relating to student instruction are within the province of the board of education (Education Law "1709[3]) and I will not substitute my judgment for that of a board of education unless I find that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Schonfeld, 38 Ed Dept Rep 306, Decision No. 14,040). Petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which petitioner seeks relief (8 NYCRR "275.10; Appeal of James L., 39 Dept Rep 482, Decision No. 14,288; Appeal of Logan, 38 id. 694, Decision No. 14,120). The burden is on the petitioner to allege and prove facts upon which relief may be granted, not on respondent to rebut conclusory allegations (Appeal of Keiling, 25 Ed Dept Rep 122, Decision No. 11,517; Matter of Lawson, 24 id. 132, Decision No. 11,343). Furthermore, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213, Decision No. 13,846; Appeal of DiStefano, 36 id. 217, Decision No. 13,705).

Petitioner contends that student conduct reports were not written consistently on all students for the same offense. However, in support of her contention, petitioner offers only general allegations with respect to one unspecified student who "left the class without permission several times a week." Respondent denies petitioner's allegations and alleges that a student who had "medical problems" was required to leave the classroom often "for health reasons," thereby distinguishing this student's circumstances from those of petitioner's daughter. There is nothing else in the record to further clarify the circumstances with respect to this unspecified student. In any event, with respect to petitioner's daughter's receipt of a student conduct report for leaving the art class, respondent alleges, and petitioner does not deny, that petitioner's daughter did not have permission to leave the class. Upon the record before me, petitioner has failed to carry her burden of proof to establish that student conduct reports were not written consistently.

Petitioner alleges that the "Zero Tolerance for Zeros" policy, as approved by the assistant principal, is not found in the School Code of Conduct, and that the assignment of detention for incomplete work is inconsistent with the code of conduct. Petitioner quotes from the Code that "Teachers, principals and the superintended [sic] may use after school detention as a penalty for student misconduct in situations where removal from the classroom or suspension would be inappropriate" and states that work not completed on time does not fall within the definition of student misconduct. However, neither petitioner nor respondent provides a copy of the Code itself, or even the particular provisions referred to, and the quoted provision that "...detention as a penalty for student misconduct in situations where removal from the classroom or suspension would be inappropriate" does not, of itself, preclude detention for incomplete or untimely assignments. Since the burden is on petitioner to demonstrate a clear legal right to the relief requested and establish the facts upon which she seeks relief, and the Code of Conduct has not been made a part of the record, I am unable to determine whether respondent"s "Zero Tolerance for Zeros" policy is inconsistent with, or otherwise violates, the Code of Conduct and her allegations with respect to this issue must be dismissed.

Petitioner next alleges that her daughter, unlike other seniors, was assigned a full schedule of classes without being given a choice as to whether she wished to carry such a full schedule. However, petitioner offers no proof to support her allegation that other seniors were given a choice as to whether they wished to carry a full schedule of classes. The June 18, 2001 letter to petitioner from the superintendent of schools states that:

It appears from the record that extra classes were assigned to all seniors to prevent them from having an excessive number of study halls, which could result in a loss of interest in school, increased truancy and objectionable behavior. There is nothing in the record which establishes that the assignment of a full schedule was made to some seniors and not others. The superintendent's letter indicates that all seniors were assigned a full schedule. The fact that some seniors were subsequently able to withdraw from a class by timely applying (within the first three weeks of the start of a class) for withdrawal does not make the application of such policy inconsistent. There is nothing in the record to suggest that had petitioner's daughter made a timely application for withdrawal from the art class, her application would have been treated differently than any other senior. Accordingly, I do not find respondent's actions to be unlawful, unreasonable, arbitrary or capricious.

Petitioner next contends that respondent has no official policy regarding when students are allowed to drop a class with or without a failing grade, that administrators are not clear as to what the guidelines are, and that there is no consistency in how a "drop" is handled on their report cards. On the record before me, I find that petitioner has failed to carry her burden of proof to establish her allegations with respect to respondent's policy concerning student withdrawal from class. For the most part, petitioner provides only general allegations that other students were permitted to drop a class after five weeks, and respondent denies these allegations. In those instances were petitioner provides more specific information, respondent denies petitioner's allegations and provides additional information to distinguish the circumstances in such instances from those of petitioner's daughter.

Petitioner alleges that school staff informed her that her daughter could drop a class within five weeks and that other students were allowed to drop classes after five weeks. However, respondent denies petitioner's allegations and consistently maintains in its responsive papers that students may drop classes during the first three weeks of a one semester class and that petitioner and her daughter were informed of this requirement on a number of occasions by her art class teacher, the assistant principal and the principal. Respondent also alleges that petitioner was informed by the senior high school guidance counselor that the district's policy on adding or dropping courses is printed on the top of the add/drop forms. Respondent further alleges that while special consideration might be given to students withdrawing from a class after the three- week timeframe because of the rigors of the class, this has not occurred and no student had been permitted to drop out of a class after the three-week period since the current principal assumed office. Petitioner alleges that she told the principal that a sophomore had dropped a review math class at the end of January, but the principal denies knowledge of this. Petitioner further alleges that she learned from a high school physical education teacher that one student had dropped a physical education class at the end of January and had been assigned to another class in lieu of the physical education class. Respondent alleges that in one instance a student who refused to attend a ninth period non-academic class was reassigned to an academic class but was required to make up the non-academic class the next school year.

Finally, I find no merit to petitioner's contention that her daughter was "targeted" by the district administration. As discussed above, petitioner has failed to establish her allegations with respect to respondent's actions relating to the student conduct reports, the "Zero Tolerance for Zeros" policy, the assignment of additional classes, and the policy on adding or dropping courses. Petitioner further alleges that on April 5, 2001, a disciplinary referral was made against her daughter for conduct mischaracterized as "insubordination." However, respondent contends that the basis for the referral was the refusal by petitioner's daughter to comply with her teacher's request to remain after class to discuss the student's verbal abuse of another student during the class, and regardless of how the conduct of petitioner's daughter was labeled, it was nevertheless objectionable. After reviewing the record, I find no evidence that respondent has unfairly disciplined petitioner's daughter.

Upon the record before me, I find that petitioner has failed to establish that respondent's actions in refusing to permit petitioner's daughter to withdraw from the art class, and its assignment of a failing grade for the student's failure to complete the work of such class, were either unlawful, unreasonable, arbitrary or capricious.

THE APPEAL IS DISMISSED.

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