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Decision No. 15,542

Appeal of E.P. and D.P., on behalf of their son S.P., from action of the Board of Education of the Mexico Central School District, Nelson Bauersfeld, Superintendent, and Kimberly Harter regarding student grading.

Decision No. 15,542

(February 27, 2007)

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondents, Marc H. Reitz, Esq., of counsel

MILLS, Commissioner.--Petitioners E.P. and D.P appeal the determination of the Board of Education of the Mexico Central School District (“respondent board” or “board”), Nelson Bauersfeld, Superintendent (“superintendent”) and Kimberly Harter (“Mrs. Harter”) to uphold S.P.’s grade of 88 in French 2 for the second quarter of the 2005-2006 school year.  The appeal must be dismissed.

During the 2005-2006 school year, S.P. was a ninth grade student enrolled in respondent’s high school.  In the second quarter S.P. received a grade of 88 in Mrs. Harter’s French 2 class.  Because his grade was below 90, S.P. did not qualify for the French honor society, whose membership required a grade of 90 or better in six consecutive quarters.

On February 10, 2006 petitioners attended a parent/ teacher conference during which various aspects of class quizzes, extra credit, assignments, and the components of S.P.’s second quarter grade were discussed.  Petitioners objected to 20% of S.P.’s grade being based solely on one quiz called “Quiz-Noel in France,” even though a second quiz was given during the marking period on January 20, 2006.  Petitioners also objected to the Christian based content of the “Quiz-Noel in France” claiming that their son was at a disadvantage because he is not Christian.

Subsequently, in meetings with the superintendent and school principal and in various emails to the school principal, E.P. continued to express her concerns regarding S.P.’s French 2 grade.  By letter dated March 9, 2006, the superintendent informed petitioners that he supported Mrs. Harter’s grading decision.

By letter dated March 24, 2006 to the superintendent, petitioners reiterated their concerns and asked that S.P.’s grade be recalculated with the inclusion of the January 20, 2006 quiz.  By letter of the same date to the board president, petitioners asked that the board address their concerns.  This appeal ensued.  Petitioners’ request for interim relief was denied on April 21, 2006.

Petitioners allege that the “Quiz-Noel in France” put S.P. at a cultural disadvantage and that Mrs. Harter put S.P. in conflict with his religious beliefs.  Petitioners contend the January 20, 2006 quiz should have been averaged into S.P.’s second quarter grade thereby qualifying him for the honor society.  Petitioners contend that Mrs. Harter manipulated the course syllabus and grading policies to lower S.P.’s grade in retaliation for her son’s lack of play time in basketball games of which D.P. was the coach.  Petitioners argue that Mrs. Harter engaged in willful misconduct, violated the board’s high school non-discrimination policy and, disregarded the provisions of Title IV and IX of the Civil Rights Act of 1964.

For relief, petitioners request that Mrs. Harter’s employment be terminated, that S.P.’s second quarter grade be changed to 92.5 and that all French 2 students be given the choice of including the January 20, 2006 quiz in either their second or third quarter grade.  Finally, petitioners request that I order the district’s curriculum to be religiously neutral.

Respondents allege that petitioners fail to state a claim upon which relief may be granted.  Respondents contend that the board established and approved the French 2 curriculum and grading practices, and that its actions were not arbitrary, capricious or unreasonable.  Respondents assert that the board and superintendent properly determined that S.P.’s grade was appropriately derived.  Finally, respondents contend that I lack jurisdiction to discipline Mrs. Harter.

     Initially, I will address several procedural issues concerning petitioners’ reply and the parties’ memoranda of law.  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).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of N.L., 44 Ed Dept Rep 216, Decision No. 15,153; Appeal of Smolen, 43 id. 296, Decision No. 15,000; Appeal of George, 40 id. 509, Decision No. 14,540).  Therefore, while I have reviewed petitioners’ “reply and memorandum of law,” 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 pleadings.

     Pursuant to §276.4 of the Commissioner’s regulations, respondents were required to serve their memorandum of law within 30 days after service of the answer.  Respondents served their answer on May 12, 2006 and submitted their memorandum of law on June 28, 2006, 47 days later.  The Commissioner may permit the late filing of a memorandum of law where a party has established good cause for the delay and demonstrated the necessity of such a memorandum to the determination of the appeal (8 NYCRR §276.4[a]).  By letter dated June 28, 2006, respondents indicated the need to respond to petitioners’ “reply and memorandum of law” and explained their belief that the deadline to file their memorandum of law was automatically extended due to the late filing of petitioner’s “reply and memorandum of law.”  Therefore, I have considered respondents’ memorandum of law.

     Respondents allege that petitioners’ claim of religious discrimination is the subject of a pending discrimination complaint filed with the New York State Division of Human Rights (“Division”) and submit a copy of the complaint filed with the Division which I have accepted pursuant to §276.5 of the Commissioner’s regulations.  Having chosen this forum to litigate their discrimination claim, petitioners have made an election of remedies and may not re-litigate the same issue in a proceeding pursuant to Education Law §310 (Appeal of O’Brien, 33 Ed Dept Rep 35, Decision No. 12,966; Appeal of Green, 31 id. 512, Decision No. 12,717).

Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (see Education Law §§1709[3] and 1804; Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096; Appeal of Kron, 37 id. 459, Decision No. 13,905).  When a student challenges a final grade, he or she bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096; Appeal of Kron, 37 id. 459, Decision No. 13,905; Appeal of Marsha E., 35 id. 331, Decision No. 13,560).  Barring a showing that a grade determination was arbitrary, capricious or unreasonable, it will not be set aside (Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096; Appeal of Kron, 37 id. 459, Decision No. 13,905; Appeal of Baker-Stein, 37 id. 401, Decision No. 13,889).

I find that petitioners have not met their burden of demonstrating that S.P.’s second quarter grade was arbitrary, capricious or unreasonable.  Respondents established that the grading procedures were properly established, communicated to students and parents, including petitioners, and were uniformly applied.  Moreover, Mrs. Harter avers that at the end of the second quarter she advised S.P. that his grade was 88.9 and she suggested that he complete an extra credit assignment to qualify for the honor society.  She also avers that S.P. chose to apply a standard extra credit coupon to the January 20, 2006 quiz which he knew would be included in his third quarter grade.  Petitioners submit nothing but unsubstantiated allegations to the contrary.  Therefore, I find that S.P.’s final grade for the second quarter was neither arbitrary, capricious, nor unreasonable.

     The appeal with respect to superintendent Bauersfeld must be dismissed because petitioners did not effect personal service of the petition upon him as required by §275.8(a) of the Commissioner’s regulations.

Lastly, I find no basis for petitioners’ request for Mrs. Harter’s termination.  A board of education has broad discretion to determine whether to bring disciplinary proceedings against a tenured teacher (Appeal of Allert, 32 Ed Dept Rep 538, Decision No. 12,909; Appeal of Mitzner, 32 id. 15, Decision No. 12,742).  Where, as here, the district decides not to proceed, it must have a reasonable basis for concluding that disciplinary action is unwarranted (Appeal of Kantor, 31 Ed Dept Rep 319, Decision No. 12,652).  Based on the record before me, I find that respondents had a reasonable basis for concluding that the termination of Mrs. Harter was unwarranted in this case.

In light of this disposition I need not address the parties’ remaining contentions.