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Decision No. 15,765

Appeal of MAUREEN CROWLEY PESCE, on behalf of her children DOMINIC, SEAN, WALTER, CHRISTOPHER, MICHAEL, MATTHEW, MAURA and SIOBHAN, from action of the Board of Education of the Westhampton Beach Union Free School District regarding class rank.

Decision No. 15,765

(June 17, 2008)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Westhampton Beach Union Free School District (“respondent”) to change its class rank policy.  The appeal must be dismissed.

Petitioner’s son, Dominic, is a senior in respondent’s high school and is ranked seventh in the class of 2008.  Petitioner has seven other children, two of whom are also students in respondent’s high school.

Dominic attended middle school within respondent’s district.  During seventh and eighth grades, Dominic took four high-school-level courses – “Earth Science, Spanish Language and two courses in math” – for which he was awarded high school credit.  Petitioner appears to argue that because Dominic took high-school-level courses during middle school, such courses should be given greater weight in calculating his high school class rank.

Respondent’s class rank policy, which was adopted on November 19, 2001, states that “[a]ll students entering grade 12 will be assigned a rank in class in accordance to their weighted GPA .... Courses will be assigned a weighting factor of either 1.10, 1.05 or 1.0.”  Respondent’s “Course Offerings Catalog 2007/2008” (“catalog”) states:

The Grade Weighting Protocol recognizes that some academic programs are more rigorous and challenging than others, and therefore rewards students for taking more demanding classes.  Grades are weighted on a scale, as follows:  Final grades in AP and Honors courses are multiplied by a factor of 1.1[.]  All other final grades are multiplied by a factor of 1.0[.]

The catalog also states that students’ class rank “reflects weighted grades.”  The record indicates that respondent does not assign AP and/or honors weight to regular high-school-level courses taken during middle school.  Rather, an affidavit from respondent’s superintendent explains that under the district’s weighting policy, “it is the course that is weighted or not weighted, not the fact that it may have been undertaken prior to the ninth grade.”

The record indicates that in late December 2007 and early January 2008, petitioner wrote letters to respondent and attended at least one board meeting to express her objections to the district’s class rank policy.  By letter dated January 16, 2008, respondent’s superintendent informed petitioner that the board would take no action “on the matter of modifying the current District policy pertaining to the establishment of ‘class ranking’ and the designation of the Valedictorian and Salutatorian of the Class of 2008.”  The superintendent added that petitioner’s “points of contention will be considered on the matter of possible adjustments to the policy in future years ...”

On January 18, 2008, petitioner filed an appeal with my Office of Counsel requesting interim relief, which was denied on January 25, 2008.  Petitioner then withdrew that appeal and commenced an Article 78 proceeding in Suffolk County Supreme Court.  By Order to Show Cause dated January 25, 2008, petitioner obtained a temporary restraining order (“TRO”) from Suffolk County Supreme Court prohibiting respondent from implementing its class ranking policy and publicly announcing the rankings for the class of 2008.  On February 11, 2008, the TRO was vacated and petitioner’s Article 78 proceeding was dismissed for failure to exhaust administrative remedies.  Petitioner then commenced the instant appeal.[1]

Petitioner claims, interalia, that respondent’s policy is arbitrary and capricious, that the policy “discriminates against students who have pursued advanced level work as middle school students” and that “there is no written policy on how advanced middle school work is accounted for in calculating high school GPA.”  Petitioner also objects to respondent’s decision to award weighted credit to its AP French course but not to the “Syracuse University Project Advance Spanish 201” course in which Dominic is enrolled.  Petitioner asks that respondent’s “flawed protocol be annulled and replaced” and that revised rankings immediately be provided to colleges which “accurately [portray] where each student’s academic efforts stand with respect to his classmates ....”  If “respondent has insufficient time to immediately improve its protocol,” petitioner requests that respondent “name ‘co-valedictorians’ and ‘co-salutatorians,’ that is, one set of students under the protocol historically in use and one set determined by student’s actual earned GPAs ....”   Finally, petitioner seeks “a rebate check for the fractional amount of money spent on respondent[’s] counsel fees which represents my share of the school tax dollars paid for such legal fees.”

Respondent contends, interalia, that the appeal must be dismissed as moot and for petitioner’s failure to state a “cause for proceeding.”  Respondent maintains that its class ranking process has been in place for several years and has been appropriately and consistently applied.

I must first address several procedural issues.  Petitioner attempts to bring this appeal on behalf of “the class of individuals who are students in the Westhampton Beach Elementary and Middle Schools.”  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Ockimey, 44 id. 169, Decision No. 15,136).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  Petitioner’s pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, petitioner’s request for class status is denied.

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 E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  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.

Respondent argues that the appeal must be dismissed as moot because the district publicly named its valedictorian and salutatorian for the class of 2008 on or about March 3, 2008.  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 C.A., Sr., 45 Ed Dept Rep 388, Decision No. 15,360; Appeal of the New York Charter Schools Assn., Inc., et al., 45 id. 376, Decision No. 15,355; Appeal of the Bd. of Trustees of the N. Merrick Public Library, et al., 45 id. 363, Decision No. 15,350).  Because, as petitioner points out, the class of 2008 has not yet graduated from high school, I decline to dismiss this appeal as moot.

Turning to the merits, the determination of class rank is a decision for the local board of education that should not be altered unless it is arbitrary and irrational (Appeal of Jobson, 47 Ed Dept Rep __, Decision No. 15,719; Appeal of Lynch, 42 id. 398, Decision No. 14,892; Appeal of Armella and MacIntyre, 40 id. 451, Decision No. 14,525).  As long as the local policy in question is not wholly without a rational basis, the Commissioner will not impose a different policy (Appeal of Lynch, 42 Ed Dept Rep 398, Decision No. 14,892; Appeal of Armella and MacIntyre, 40 id. 451, Decision No. 14,525; Appeal of Tenbus and Kraack, 35 id. 320, Decision No. 13,556).

Petitioner argues that respondent’s practice discriminates against students like Dominic who take high school courses in middle school because “less accelerated students actually accumulate greater amounts of honors weighting points along the way because they have waited until they were older and actually in high school, to take the very same course material in its ‘weighted’ version and they thereby benefit in rank over the accelerated students.”  However, the record indicates that respondent has determined that AP and honors courses taken during high school will be weighted more heavily than regular courses taken prior to and during high school.  As stated in respondent’s catalog, this policy takes into consideration that “some academic programs are more rigorous and challenging than others, and therefore rewards students for taking more demanding classes.”  Recognition for academic achievement, including designation as valedictorian and salutatorian, is strictly a local matter for which the board of education may impose reasonable standards (Appeal of Tenbus and Kraack, 35 Ed Dept Rep 320, Decision No. 13,556; Appeal of Maloney, 33 id. 154, Decision No. 13,007; Appeal of Kuttner, 32 id. 39, Decision No. 12,749).  In this case, there is no basis to conclude that respondent’s class ranking system is irrational or unreasonable. 

In support of her argument, petitioner cites several prior Commissioner’s decisions for the proposition that school districts cannot discriminate against “accelerated” students with respect to class ranking (Appeal of Sperry, 37 Ed Dept Rep 660, Decision No. 13,951; Appeal of Knapp, 34 id. 357, Decision No. 13,340; Appeal of Chesbrough, 32 id. 647, Decision No. 12,944; Appeal of Pelletier, 27 id. 265, Decision No. 11,942; Matter of Roberts, 15 id. 269, Decision No. 9,164).  However, petitioner’s reliance on those cases is misplaced.  Unlike Dominic, each of the students in the cited cases was considered “accelerated” because he or she either graduated from high school in less than four years or, as in Pelletier, was enrolled in a “full-time college level course of study” during her senior year.  In the instant case, while Dominic did take high-school-level courses in middle school, he is not an “accelerated” student who is graduating from high school in less than four years.  I commend Dominic’s efforts and academic achievement; however, I cannot find that he is “accelerated” as described in Matter of Roberts and its progeny.

As petitioner points out, the record contains no evidence that respondent has a written policy on the application of its weighting policy to high school courses taken during middle school.  However, the fact that respondent’s practice has not been reduced to writing does not preclude respondent from implementing it, as the record reflects that this has been a consistent practice of the district for several years.  Additionally, there is nothing in the record which indicates that this practice has been applied unfairly or inconsistently by respondent. 

Finally, I note that respondent’s superintendent has established a committee to review the district’s class rank policy to determine whether any “prospective modifications ... may be in order.”  I encourage respondent to continue its efforts to clarify its policies and communications in response to the concerns raised in this appeal.

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


[1]The record indicates that both petitioner and respondent have attempted to include in this appeal the families of the students in the class of 2008 ranked one through six.  Petitioner provided respondent with additional copies of her appeal papers and, by letter dated March 10, 2008, respondent requested consent from the parents of each of the six students to release such students’ names and addresses for purposes of service of process.  The record does not indicate that any of the parents provided their consent.  As a result, I will not dismiss the appeal for failure to join necessary parties.