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Decision No. 14,719

Appeal of a STUDENT WITH A DISABILITY, by his parent, from action of the Board of Education of the City School District of the City of Glen Cove regarding the denial of course credit.

Decision No. 14,719

(April 30, 2002)

Jaspan Schlesinger Hoffman, LLP, attorneys for respondent, Carol Hoffman, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board of Education of the Glen Cove City School District ("respondent") to deny her son course credit due to excessive absences. The appeal must be dismissed.

Respondent adopted a minimum attendance policy that applies to students in grades nine through twelve. When a student in a full-year course accumulates more than five absences or more than three in a single semester course, the student may be denied credit, regardless of his/her academic average in that class. The policy specifically states, "Class attendance shall be a factor in determining whether course credit is given." Parents are to be notified in writing when a student loses course credit. The policy further provides that at the point when a student in a full year course has accumulated five absences " or three absences in a single semester course " a student manager will conduct a meeting with the student, parent and guidance counselor and the student may be placed in a PM school for that course. I note that the record does not further describe the nature of a PM school.

Although the policy states at the outset that it does not make a distinction between "legal" and "illegal" absences, it further states, "[t]his policy does make an exception for school-sanctioned events, religious observances and death in the family." The policy further provides that school-sponsored trips and activities, days of religious observance, pre-arranged guidance appointments and days of home teaching "will not be counted against the student in his/her fulfillment of course requirements. Every other instance of non-attendance will be considered an absence." All students, regardless of the reason for absence, are required to make up all work missed in their classes.

According to the policy, "upon returning to school, or before leaving school, each student must report to the attendance office for the appropriate pass. The pass will be shown to the subject teacher to verify the absence as legal." When a student returns to class after an absence, the subject teacher asks the student about the absence and arranges for the student to make up missed work. If "the absence is illegal, the student"s name will be forwarded to [a] student manager and the parent will be contacted by mail and phone."

Petitioner"s son was a senior in respondent"s district during the 2000-2001 school year. In spring 2001 he was enrolled in respondent"s single-semester health course. As such, if he accumulated more than three absences in that course, petitioner"s son could be denied course credit. The record indicates that, during that semester, petitioner"s son exceeded the maximum number of absences permitted.

The record is somewhat unclear with respect to the dates throughout the semester on which respondent notified petitioner regarding her son"s absences. On April 2, 2001, the health teacher informed petitioner"s son that he might be denied credit due to his absences. On April 4, petitioner met with her son"s guidance counselor regarding his absences. Petitioner received a notice dated April 5, 2001, post-marked April 10, 2001, indicating that her son was absent four times from health class. Petitioner received a notice dated April 4, 2001, post-marked April 27, 2001, indicating that her son was absent six times from health class and, in accordance with the attendance policy, would receive no credit for that course. In addition, respondent submits copies of "cut cards" on which it is noted that, on April 19, 2001 respondent"s staff notified petitioner by telephone that her son cut health class on March 26, 27, 28 and April 3, 2001. A second cut card notes that on May 23, 2001 respondent"s staff notified petitioner by telephone regarding a fifth absence from health class on May 17, 2001. However, it appears that the May 17 absence subsequently was excused. Petitioner acknowledges that she received those telephone messages.

Upon receiving notice that her son would not earn course credit for health due to excessive absences, petitioner appealed to respondent"s director of health, physical education and athletics who upheld the "no credit" determination. Petitioner subsequently appealed to respondent"s "Appeals Committee", as provided for in its attendance policy. On June 7, 2001, the student"s guidance counselor notified petitioner that the committee denied her appeal. Petitioner then appealed to respondent"s superintendent of schools who, by letter dated June 11, 2001, upheld the "no credit" determination. Thereafter, petitioner appealed to respondent which, by letter dated June 19, 2001, denied petitioner"s appeal. This appeal ensued.

Petitioner contends that respondent"s attendance policy impermissibly distinguishes between "legal" and "illegal" absences, and that, therefore, it should be declared invalid. She also asserts that respondent failed to follow the parent notification requirements set forth in its attendance policy. Petitioner claims that, therefore, her son is entitled to be awarded credit for his health course. Respondent asserts that its attendance policy is permissible and that petitioner"s son was properly denied credit for his health course.

Before turning to the merits of the appeal, I will address a procedural issue. Petitioner"s reply contains additional allegations not set forth in the petition. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR "275.3 and "275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Huber, et al., 41 Ed Dept Rep ___, Decision No. 14,676; Appeal of Karpoff, et al., 40 id. ___, Decision No. 14,527; Appeal of Taylor, 39 id. 712, Decision No. 14,357). Therefore, while I have reviewed petitioner"s submission, I have not considered those portions of the reply containing new allegations or exhibits that are not responsive to new materials or affirmative defenses set forth in the answer.

A board of education may adopt a policy requiring minimum attendance for students to receive academic credit (Appeal of Hanrahan, 40 Ed Dept Rep _, Decision No. 14,507; Appeal of Pasquale, 36 id. 290, Decision No. 13,727; Appeal of Hansen, 34 id. 235, Decision No. 13,292). However, previous Commissioner"s decisions have determined that such attendance policies 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 this case, respondent argues that its attendance policy does not distinguish between "legal" and "illegal" absences. The record shows, however, that respondent"s attendance policy does make an exception for certain absences. Specifically, when a student is absent due to a school-sponsored activity, religious observance, death in the family or pre-arranged guidance appointments, the absence is not counted against the fulfillment of the student"s course requirements. The policy notes that every other instance of non-attendance will be considered an absence.

Moreover, the policy provides that, upon a student"s return to school, the attendance office must make a determination as to whether the absence was "legal". This distinction appears not to be limited to determining whether to provide the student an opportunity to make-up missed work, as the policy requires that all students, regardless of the reason for absence, must make up all work missed. Thus, it is clear that, in certain circumstances of non-attendance, the student is not to be considered absent for purposes of respondent"s attendance policy. As noted above, previous Commissioner"s decisions have invalidated attendance policies that created exceptions for certain student absences, such as respondent"s policy herein (Appeal of Pasquale, supra). However, for the reasons set forth below, I decline to continue to follow those decisions.

Over the past two years, the State Education Department has engaged in a comprehensive reexamination of this State"s policy on student attendance and recordkeeping. Factors such as attendance record-keeping, the need for strategies to improve attendance and the importance of establishing meaningful consequences for truants were considered. This reexamination resulted in a new regulation which was adopted by the Board of Regents in November 2001 (8 NYCRR "104.1). Among other things, this regulation requires each school district to develop a comprehensive attendance policy by June 30, 2002 (8 NYCRR "104.1[i]). In requiring the development of such comprehensive attendance policies, the new regulation specifically authorizes school districts to adopt minimum attendance requirements which distinguish between excused and unexcused student absences for the purpose of awarding course credit. The new regulation, however, also requires districts to include strategies to address student attendance problems, so that truancy problems can be identified and effectively addressed through various other strategies. The new student attendance regulation effectively overturns and supersedes all previous Commissioner"s decisions which concluded that locally developed school attendance policies may not distinguish between excused and unexcused absences for the purpose of denying course credit to students who violate a minimum attendance threshold.

After carefully reviewing the record, I find respondent"s minimum student attendance policy consistent with the Board of Regents most recent expression of public policy regarding student attendance as articulated in 8 NYCRR "104.1.

Petitioner"s remaining claim " that her son is entitled to course credit because respondent failed to comply with its policy"s notice requirements " must also be dismissed. In an appeal to the Commissioner, the petitioner bears the burden of establishing the facts upon which he or she seeks relief and demonstrating a clear legal right to the relief requested (8 NYCRR "275.10; Appeal of a Student Suspected of having a Disability, 41 Ed Dept Rep ___, Decision No. 14,702; Appeal of L.S., 41 id. ___, Decision No. 14,683).

Petitioner asserts that respondent"s policy required that she be notified of her son"s absences immediately after his third absence on March 28 and the arrangement of a meeting to discuss the possibility of his attendance at the district"s PM school to continue the course. The record indicates that petitioner"s son was warned by his teacher on April 2, 2001 that an additional cut would result in the loss of course credit. Nevertheless, despite this warning, petitioner"s son cut class a fourth time " on April 3, only three school days after he had cut class for three consecutive days the previous week. Petitioner was informed of her son"s absences on April 4, 2001 " after he had been absent from class for the fourth time, resulting in the denial of credit for the health course. Thereafter, she received several telephone and written notices of the absences. Petitioner also indicates that at no time was she informed that her son"s absences would result in a loss of course credit. However, petitioner does not assert that she was unaware of respondent"s minimum attendance policy and its consequences prior to her son"s absences. Nor does she dispute that her son was absent four times in a single semester course -" in violation of the minimum attendance requirement to obtain credit.

I note that, under respondent"s policy, the purpose of arranging a meeting after a student"s third absence in a single semester course is to discuss the option of placing the student in the district"s PM school for that course " presumably to provide the student with an alternative instructional opportunity to avoid losing credit for the course. However, this course of action is optional, and there is no guarantee the student would be so placed. Thus, petitioner has not established that, had the meeting occurred, her son would have been permitted to continue his health course in the district"s PM school and, consequently, would not have cut class a fourth time. Moreover, I note that the student"s fourth class cut on April 3 occurred almost immediately after he had cut class three consecutive days during the prior week. Under those circumstances, the fact that respondent failed to arrange a meeting immediately after petitioner"s son"s third absence

and prior to this fourth cut does not entitle him to an award of credit.