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Decision No. 15,526

Appeal of E.B. and J.B., on behalf of their son D.B., from action of the Board of Education of the LaFayette Central School District regarding grading.

Decision No. 15,526

(February 14, 2007)

Gina L. Blasdell, Esq., attorney for petitioners

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for petitioners, Craig M. Atlas, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal the determination of the Board of Education of the LaFayette Central School District (“respondent”) regarding their son’s grade in Advance Placement United States History.  The appeal must be dismissed.

By letter dated April 7, 2005, petitioners asked respondent’s superintendent to reinstate all points lost for late assignments in their son’s history class.  On April 26, 2005, the superintendent had not yet responded, and petitioners sent letters to each member of respondent asking them to address the issue.  Respondent discussed the issue in executive session at its April 28 and May 12, 2005 meetings.  By letter dated May 5, 2005, which was mailed on May 18, 2005 and received on May 19, 2005, respondent advised petitioners that their request was denied.

Respondent agreed to meet with petitioners and their attorney on June 9, 2005.  At that meeting, petitioners and their attorney were told that respondent’s May 2005 letter constituted its final determination with respect to the matters addressed.  On July 10, 2005, petitioners’ attorney sent an email to the individual board members attaching a letter and additional materials for respondent’s consideration.  By resolution adopted on July 28, 2005, respondent denied petitioners’ request for reconsideration.  This appeal ensued.

Petitioners assert that their son’s grade should be changed to a 93 because his teacher arbitrarily and capriciously changed her grading policies numerous times throughout the year and because the district failed to ensure academic integrity.

Respondent asserts that the petition is untimely and fails to state a claim.  Respondent also asks that I disregard petitioners’ unsworn “introductory statement” submitted with the petition, and petitioners’ reply because it is untimely and because it is not responsive to respondent’s answer.

I will first address the unsworn “introductory statement.”  Section 275.5 of the Commissioner’s regulations requires all pleadings to be verified.  Since this statement was not verified, I have not considered the allegations made therein.  Moreover, since the statement was not made under oath I have not considered it as an affidavit in support of the petition.

A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (id.).  Respondent’s affidavit of service indicates that the answer was served by mail on October 3, 2005.  Thus, petitioner’s reply was due on October 17, 2005.  On October 31, 2005, petitioners’ attorney served a reply, an affirmation and the affidavits of petitioners and their son.  While petitioners’ attorney claims that she was involved in a lengthy trial, this does not establish good cause for submitting a late reply.  Accordingly, I have not considered the untimely reply and accompanying affirmation and affidavits.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of a Preschool Child with a Disability, 43 Ed Dept Rep 343, Decision No. 15,012; Appeal of Williams, 42 id. 260, Decision No. 14,846).  Petitioners received respondent’s determination on May 19, 2005.  Accordingly, this appeal commenced on August 29, 2005, without any explanation for the delay, must be dismissed as untimely.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §1709(3), in conjunction with Education Law §1804, gives boards of education of central school districts broad authority "to prescribe the course of study by which the pupils of the schools shall be graded and classified . . . ."  Student grading policies and practices lie within this broad discretion and will only be set aside where they are clearly arbitrary or unreasonable (Education Law §1709(3); Appeal of T.M. and A.M., 45 Ed Dept Rep 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580). 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).

Here, the petition merely states in a general, conclusory fashion that petitioners’ son’s teacher arbitrarily and capriciously changed her grading policies numerous times throughout the year and that the district failed to ensure academic integrity.  The documentary evidence submitted by petitioners’ attorney includes an unverified “introductory statement” by the petitioners, correspondence, the Advance Placement United States History classroom guidelines, the syllabus and other course information.  None of the documentation establishes petitioners’ conclusory statements.  Accordingly, I find that petitioners have not met their burden of establishing that respondent’s student grading policies and practices are arbitrary or unreasonable.