* Subsequent History: Matter of Jo v New York State Educ. Dept.; Supreme Court, Albany County, Special Term (Bradstreet, J.); Judgment dismissed petition to review; February 8, 2005. *

Appeal of MEE JO from action of Judith P. Staples, Superintendent of Schools for the City School District of the City of Corning, concerning parental complaints.

Decision No. 15,147

(December 6, 2004)

Harris Beach LLP, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the actions of Judith P. Staples (“respondent”), Superintendent of Schools for the City School District of the City of Corning (“the district”), in response to petitioner’s complaints concerning her daughter’s education.  The appeal must be dismissed.

During the 2003-2004 school year, petitioner’s daughter was a seventh grade student in the district.  Between September 28, 2003 and February 9, 2004, petitioner sent 12 letters to various district employees expressing concern about her daughter’s education.  She raised a number of issues, but focused primarily on the teaching and grading methods used by her daughter’s math teacher. During that time period, district administrators met with petitioner on several occasions to attempt to address her concerns.  District administrators also sent petitioner five letters attempting to respond to her concerns. 

On February 25, 2004, respondent sent petitioner a letter confirming that her daughter was being appropriately instructed.  Respondent further indicated that the district would not schedule any more meetings or respond to petitioner’s correspondence on the subject.  The letter stated that future issues concerning petitioner’s daughter would be restricted to the channels used by other parents in the district.  This appeal ensued.

Petitioner questions whether various district practices are supported by the Education Law and whether her daughter’s math teacher is certified.  She asks that respondent’s decision of February 25, 2004 be reversed and that she “recover” her right to correspond and meet with her daughter’s teachers and district administrators.  She also asks that I “reopen” the issue of the math teacher’s instructional methods.

Respondent asserts that the appeal must be dismissed because petitioner requests an advisory opinion.  Respondent also argues that, to the extent petitioner requests any relief regarding any issue involving her daughter’s math teacher, the appeal must be dismissed for failure to join a necessary party.  Respondent also contends that the appeal must be dismissed for failure to exhaust administrative remedies.

Respondent further asserts that the petition does not contain a clear and concise statement showing that petitioner is entitled to relief.  Respondent argues that questions of academic freedom and teaching methods fall within the discretion of the district pursuant to Education Law §1709(33).  Respondent also argues that she did not render any “decision” in her February 25, 2004 letter and that she did not deny petitioner any rights.  She also submits documentation showing that the teacher in question is certified.

Initially, I must address petitioner’s reply.  The purpose of a reply is to respond to affirmative defenses or new material contained in an answer; it is not meant to buttress or add to the petition’s allegations (8 NYCRR §§275.3 and 275.14; Appeal of Hubbard, 43 Ed Dept Rep __, Decision No. 14,981). Portions of petitioner’s reply buttress and add to petitioner’s claims.  Accordingly, although I have accepted petitioner’s reply, I have considered only those portions responding to new material or affirmative defenses in respondent’s answer.

In her reply, petitioner argues that the answer was untimely.  Section 275.13 of the Commissioner’s regulations requires a respondent to answer the petition within 20 days of the time it was served.  However, when the period ends on a Saturday, Sunday or a public holiday, the answer may be served on the next succeeding business day (see, General Construction Law §25-a[1]).  Here, petitioner served the district clerk on March 8, 2004.  The 20-day period ended on March 28, 2004, a Sunday, and respondent served the answer on Monday, March 29, 2004.  The answer is therefore timely.

Petitioner also argues that respondent’s answer must be dismissed because her attorney failed to affirm that he does not have first-hand knowledge of the facts. Consistent with Commissioner’s regulations, the answer is endorsed with the name, address and telephone number of respondent’s attorney (8 NYCRR §275.4) and verified by respondent (8 NYCRR §275.5). Therefore, respondent’s answer is proper.

To the extent petitioner requests an advisory opinion in response to her “questions presented,” the appeal must be dismissed. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in appeals brought pursuant to Education Law §310 (Appeal of Bach, 43 Ed Dept Rep ___, Decision No. 14,962; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791).

In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which she seeks relief and of demonstrating a clear legal right to the relief requested (Appeal of McBeth, 43 Ed Dept Rep __, Decision No. 14,913).  Petitioner has neither alleged nor established that she has a legal right to the relief requested.  Respondent’s February 25, 2004 letter does not, as petitioner alleges, eliminate her opportunity to meet and correspond with her daughter’s teachers and school administrators.  Respondent simply notified petitioner that school administrators would not continue to respond to petitioner’s correspondence and schedule meetings with her concerning the issues previously raised by petitioner. 

It is not clear whether petitioner challenges the math teacher’s instructional or grading methods in this appeal.  She states that she seeks to “reopen” the issue of her daughter’s math teacher’s teaching methods, but her petition indicates, and her reply specifically states, that the petition is directed to respondent’s February 25, 2004 letter.  In any event, I find that petitioner has not demonstrated the right to any legal relief based on the teaching or grading methods of her daughter’s math teacher.  It is well settled that decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (Education Law §1709[3]). Absent a finding that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Conley, 34 Ed Dept Rep 376, Decision No. 13,349). Moreover, a teacher must be given some latitude to determine how to teach a lesson (Appeal of Conley, supra).  Petitioner has failed to meet her burden of proving that the grading or teaching methods of her daughter’s math teacher were arbitrary and capricious.

THE APPEAL IS DISMISSED.

END OF FILE