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Decision No. 14,711

Application to reopen the 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. 14,711

(March 29, 2002)

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 applies to reopen Appeal of K.S., (40 Ed Dept Rep ___, Decision No. 14,561) concerning the assignment of a failing grade in orchestra for the second semester of the 1999-2000 school year. The facts underlying this application are set forth in the original decision. The application must be denied.

Section 276.8 of the Regulations of the Commissioner of Education governs applications to reopen. It provides that such applications are addressed solely to the discretion of the Commissioner and will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. An application for reopening must be made within thirty days after the date of the decision petitioner seeks to reopen (Appeal of Coleman, 37 Ed Dept Rep 391, Decision No. 13,887).

Petitioner maintains that the appeal should be reopened based on a "misapprehension of the facts." Petitioner claims that the Commissioner"s decision changing her grade from a "fail" to a numerical passing grade resulted in her class rank dropping from first to third. She alleges that the decision unfairly changed the grading system midstream with no notice to her. Respondents assert that the application should be denied because it presents no new or material evidence not available at the time of the original appeal. Respondents also contend that the entire matter is moot as petitioner has graduated and negotiated a "settlement" with respondents to graduate as salutatorian as opposed to third in her class.

Petitioner"s original appeal requested that the district award her a "pass" for the overall orchestra grade. I found that petitioner and respondents" agreement to allow her to switch to pass/fail halfway through the school year, was arbitrary and capricious and a violation of the school"s own rules. My decision directed that respondents calculate a final numerical grade in orchestra and award credit if a passing grade was achieved. Petitioner now complains that she is dissatisfied with the outcome of the original appeal as it resulted in a lower class rank than if she had merely "failed" the second semester. Her disappointment with this decision is not a ground to reopen the appeal.

Petitioner also alleges that the school offered another course, Individual Freedom and the Law, pass/fail, although it was not mentioned in the student handbook. However, this course was apparently offered to all students pass/fail. Petitioner"s situation is distinguishable in that she was the only student in the history of the school to be allowed to switch to pass/fail in a numerically graded course during the school year and was the only student taking that course pass/fail. Thus, the fact that a different course was offered on a pass/fail basis does not constitute a misapprehension of fact or new and material evidence for purposes of reopening the appeal. Accordingly, there is no basis in this application to grant the relief petitioner seeks. Having reached this conclusion, I need not address the other issues raised by the parties.