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Decision No. 15,465

Appeal of F.P., on behalf of her son M.P., from action of the Board of Education of the Bay Shore Union Free School District regarding construction and grading.


Decision No. 15,465


September 6, 2006


Ingerman Smith, L.L.P., attorneys for respondent, Colleen F. Dowd, Esq., of counsel


MILLS, Commissioner.--Petitioner challenges the use of roofing asphalt in a construction project by the Board of Education of the Bay Shore Union Free School District (“respondent”) and the district’s refusal to adjust her son’s math grade.  The appeal must be dismissed.

Respondent and district residents approved a capital improvement project which included the construction of several additions to its middle school.  The specifications for the project included the use of roofing asphalt on the structure additions.  The roofing asphalt was used for 30 days intermittently over a four month period from December 31, 2004 to April 22, 2005.

On April 19, 2005, petitioner and her husband met with the middle school principal to request that their son’s third quarter math grade be changed from an “F” to a “D.”  They alleged that the roofing asphalt caused him to have asthma attacks, which resulted in his absence from class.  The principal refused.  This appeal ensued.

Petitioner contends that respondent’s use of roofing asphalt caused her son to receive a failing math grade for the third quarter marking period and asks that I change his math grade for that period from an “F” to a “D;” order respondent to discontinue its use of roofing asphalt; conduct an investigation; order respondent to promulgate a parental notification policy; demote, remove or reduce the salary of school administrators and officials; order reimbursement of medical bills; and order an apology.

Respondent contends that the roofing asphalt was used only on unoccupied additions with no effect on the ventilation system of the existing middle school, and maintains that petitioner fails to establish a causal connection between the asphalt and the student’s grade.  Respondent also contends that Education Law �310 does not authorize the removal or demotion of district employees, the reimbursement of monetary damages or the publication of an apology.  Finally, respondent contends that the appeal is untimely and argues that petitioner failed to exhaust her administrative remedies, did not properly serve the petition, and failed to join necessary parties.  Respondent also asks that I reject those portions of petitioner’s reply containing new allegations.

I will first address several procedural issues.  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 Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152; Appeal of Kirschenbaum, 43 id. 366, Decision No. 15,020; Appeal of Hollister, 39 id. 109, Decision No. 14,188).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The objection to respondent’s use of roofing asphalt must be dismissed as moot The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Respondent completed its use of roofing asphalt for the roofing project at its middle school on or about April 22, 2005.  Accordingly, that portion of the appeal is dismissed as moot.

To the extent that petitioner requests that I take adverse actions against school administrators and officials, the appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of R.M. and L.M., 44 id. 218, Decision No. 15,154; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of D.B., 44 Ed Dept Rep 230, Decision No. 15,157; Appeal of Hoffman, 43 id. 160, Decision No. 14,953).  Here, petitioner did not name or serve any individual administrators or officials.

Petitioner’s request that I order an investigation must also be denied.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of W.T.B. and M.B., 44 Ed Dept Rep 152, Decision No. 15,129; Appeal of Qureshi, 43 id. 504, Decision No. 15,066; Appeal of Simmons, 43 id. 7, Decision No. 14,899).

In addition, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law �310 (Appeal of T.R. and M.D., 43 Ed Dept Rep 411, Decision No. 15,036; Appeal of L.D. and M.D., 43 id. 144, Decision No. 14,947; Appeal of Moore, 41 id. 436, Decision No. 14,738).  As such, petitioner’s claim for reimbursement of her medical expenses must be dismissed.

To the extent petitioner seeks an apology, the Commissioner lacks the authority to order the board of education or any school district employees to issue an apology (Application of McDougall and Dacey, 42 Ed Dept Rep 195, Decision No. 14,819).

The entire appeal must be dismissed on the merits.  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).  Although petitioner offers some evidence that roofing asphalt can irritate the airways and cause an asthma attack, she submits no further evidence to support her conclusory statement that respondent’s use of asphalt affected the air quality in the middle school and caused her son’s absences.  The petition alleges that an employee of the State Education Department (“Department”) ordered respondent to discontinue its use of roofing asphalt.  A review of Department records indicates that petitioner contacted the Office of Facilities Planning on April 20, 2005; however, no such directive was issued.  Respondent avers that the construction project had no effect on the ventilation system in the existing middle school building, and petitioner offers no evidence to the contrary.

            Petitioner’s request that I change her son’s third quarter math grade must also be denied.  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 B.M., 45 Ed Dept Rep 281, Decision No. 15,323; Appeal of Schmitt, 39 id. 617, Decision No. 14,329).

Although petitioner alleges that her son failed math in the third quarter because he was absent due to respondent’s use of roofing asphalt, she fails to establish that his absence was due to the roofing asphalt or that he merited a better grade for that quarter.  The sworn affidavit of the middle school principal asserts that petitioner’s son received a failing grade in five homework assignments, one Regents review assignment, two quizzes and two tests during the third quarter marking period.  In addition, the principal states that petitioner’s son failed to hand in 12 homework assignments and five in-class assignments even though his math teacher made work assignments available for students who were absent.  Accordingly, I cannot conclude that respondent’s grade determination was arbitrary, capricious or unreasonable.

In view of the foregoing disposition, I need not address respondent’s remaining procedural objections.