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Decision No. 14,709

Appeal of S.T., on behalf of her daughter M.B., from action of the Board of Education of the Mount Sinai Union Free School District regarding class placement.

Decision No. 14,709

(March 29, 2002)

Kalb, Rosenfeld & Essig P.C., attorneys for petitioner, John A. Meringolo and David A. Day, Esqs., of counsel

Kevin A. Seaman, Esq., attorney for respondent

Mills, Commissioner.--Petitioner challenges a decision of the Board of Education of the Mount Sinai Union Free School District ("respondent") to retain her daughter in eighth grade for the 2001-2002 school year. The appeal must be dismissed.

M.B. entered the eighth grade at Mount Sinai Middle School in the fall of 2000. At that time, it was respondent"s practice to require eighth grade students to pass English 8 and social studies 8 in order to advance to ninth grade at Mount Sinai High School. M.B. was enrolled in English 8, social studies 8, remedial math, math 8, science 8 and several electives. In December 2000, M.B."s math 8 teacher prepared an interim report indicating that M.B. was in danger of failing the course. Her science teacher prepared an interim report noting that she had failed to complete 3 assignments. A math interim report for March also indicated that the student was in danger of failing.

At its March 13, 2001 meeting, respondent approved a resolution that provided:

RESOLVED that all eighth grade students must pass the core subjects of math, science, social studies and English to be eligible for promotion to high school, grade 9.

Note: A student failing one (1) or two (2) core subjects may attend summer school and make up a failing grade(s). A student failing three (3) or more core subjects in grade 8 will be retained in grade 8 for the next academic year.

Respondent also passed a series of resolutions relating to high school graduation requirements. The full text of those resolutions is not in the record before me. Respondent"s "Mount Sinai Snapshot" newsletter from March 2001 indicates that some of the proposed resolutions were intended to take effect in September 2001 and others were to be effective in September 2002.

In May 2001, M.B. received interim reports stating that she was in danger of failing math and science. By letter dated May 7, 2001, the middle school principal reiterated to M.B."s parents that high school graduation standards had been increased and that to prepare students to meet the new high school standards the promotion requirements from eighth grade had been revised to include passing grades in all four core subjects. The principal pointed out that to start implementation of the higher standards, eighth grade students who failed one or two courses would be expected to attend summer school. She noted that M.B. was failing math and science at the end of the third quarter and advised her parents to plan to send her to summer school.

Respondent considers 65 to be a passing grade. At the end of the 2000-2001 school year, M.B."s final grades were 76 in English, 71 in social studies, 55 in math and 63 in science. As a result, M.B. took math and science in summer school. At the end of summer school she received final grades of 67 in math and 62 in science. Because she failed science, the principal informed her by letter dated August 8, 2001 that she would be retained in eighth grade for the 2001-2002 school year.

Petitioner telephoned the principal on or about August 10, 2001 to contest the school"s decision to retain M.B. in eighth grade. The principal advised petitioner that she could not reverse the decision because respondent"s policy required M.B. to repeat the eighth grade. By e-mail dated August 16, 2001 petitioner asked respondent to make an exception for her daughter and promote her to ninth grade.

Respondent did not reply to petitioner"s written request. On August 21, 2001, petitioner met with respondent"s superintendent, who advised her that M.B. would be retained in eighth grade. By letter dated August 24, 2001, the deputy superintendent advised petitioner that her daughter"s science teacher assigned her a higher grade for the school year than she actually earned and that she had failed to submit a number of homework assignments. This appeal ensued. Petitioner"s request for interim relief was denied on September 10, 2001. By letter dated October 5, 2001, petitioner"s counsel notified respondent"s counsel that petitioner had enrolled her daughter in private school "pending the outcome of her appeal."

Petitioner argues that it is unfair to retain her daughter in eighth grade based on a policy that was not enacted until March of her eighth grade year. She notes that by the time the new requirements were enacted, M.B. was already failing math and science. She claims that M.B. submitted science homework and that the teacher lost it and improperly penalized M.B. She asserts that her daughter should not be required to repeat a whole year of instruction because she failed one course by three points and that retaining the student in eighth grade will do her more harm than good. Finally, she contends that this "retroactive" application of respondent"s policy deprives her daughter of a property interest without due process. She asks me to review M.B."s science file to ensure that she received all the credit she earned and to find that M.B. is entitled to attend ninth grade in respondent"s schools.

Respondent contends that the appeal is untimely and moot. Respondent also asserts that it properly retained M.B. in eighth grade and that its policy is neither arbitrary nor capricious, particularly in light of the fact that it offered students the opportunity to make up failed grades in summer school.

It is well settled that the Commissioner will only decide 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 a Student with a Disability, 41 Ed Dept Rep __, Decision No. 14,680; Appeal of Huber, et al., 41 id. ___, Decision No. 14,676; Appeal of Jaski, et al., 40 id. 154, Decision No. 14,446). It is clear that petitioner enrolled her daughter in private school in response to respondent's refusal to promote her to ninth grade as petitioner requested. She initiated this appeal seeking an order directing her daughter"s immediate placement in ninth grade at Mount Sinai High School. In view of the fact that petitioner seeks a specific educational placement in respondent's schools as relief in this appeal, I do not find that petitioner"s current decision to enroll her daughter in private school in response to respondent's refusal of her request renders the appeal moot (see Appeal of a Student with a Disability, supra).

An appeal to the Commissioner of Education must be commenced within 30 days of the action or decision complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Respondent argues that petitioner may not challenge its March 13, 2001 adoption of the resolution changing the ninth grade promotion requirements because she did not commence her appeal until about August 31, 2001. Petitioner, however, seeks to challenge the application of this policy to her daughter, which resulted in respondent"s decision to retain M.B. in eighth grade. The principal informed M.B. that she would be retained on or about August 8, 2001. Petitioner called the principal to contest this decision and asked respondent to promote her daughter in an e-mail dated August 16, 2001. When respondent did not reply, petitioner met with the superintendent, on August 21, 2001, and was advised that her daughter would not be promoted. She commenced this appeal within 30 days of that date and I therefore will not dismiss it as untimely.

The appeal must, however, be dismissed on the merits. It is well settled that boards of education have broad authority, under Education Law "1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another. Consistent with that authority, boards have the power to place students in particular classes (Appeal of a Student with a Disability, supra; Appeal of J.K. and M.B., 40 Ed Dept Rep ___, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of a Student with a Disability, supra; Appeal of J. K. and M. B., supra; Appeal of Dawn H., supra).

In this matter, there is no reason to conclude that respondent"s decision to retain M.B. in eighth grade was illegal, arbitrary or capricious. The record indicates that respondent increased its graduation standards in accordance with Regents policy after a period of study. Its conclusion -- that students must pass all four core courses in the eighth grade to advance to ninth grade and prepare to meet the standards for graduation -- is reasonable. I cannot conclude that it was irrational or unfair for respondent to implement the new policy immediately (see, Appeal of Perino, 36 Ed Dept Rep 305, Decision No. 13,732). Respondent provided summer school at no expense to students who failed one or two of the core courses and advised petitioner in May that M.B. would need to avail herself of this opportunity. Petitioner"s assertion that she and/or M.B. would have approached her classes differently if they had known of the requirements at the outset of eighth grade is speculative.

Petitioner also asks me to obtain and review her daughter"s science file to determine whether she received all of the credit to which she was entitled. However, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of J.W. and C.W., 41 Ed Dept Rep ___, Decision No. 14,629; Appeal of B.B., 38 id. 666, Decision No. 14,113; Appeal of DiStefano, 36 id. 217, Decision No. 13,705).

I have considered petitioner"s remaining arguments and find them to be without merit.