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Decision No. 16,068

Appeal of RHONDA MISHKIND, on behalf of her daughter Veronica, from action of the Board of Education of the Chappaqua Central School District regarding course credit.

Decision No. 16,068

(May 27, 2010)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Lisa S. Rusk, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the decision of the Board of Education of the Chappaqua Central School District (“respondent”) to deny her daughter, Veronica, permission to earn credit for an online health course.  The appeal must be dismissed.

As part of the requirements for earning a New York State high school diploma, the Commissioner’s regulations require all students to earn one-half unit of credit in health education (8 NYCRR §100.5[a][3][vi]).  While students in respondent’s high school typically take the required health course in 10th grade, such course is also offered to 11th and 12th grade students.

During the 2008-2009 school year, Veronica was a ninth-grade student in respondent’s high school.  Veronica is also a competitive figure skater who maintains an intensive training schedule.  In the spring of 2009, petitioner requested permission for Veronica to meet the health education requirement by participating in an online health course that summer, explaining that, due to her training and competition schedules, Veronica could not take the course in summer school or during the fall of 2009.

On June 4, 2009, respondent’s superintendent denied petitioner’s request.  Petitioner appealed the superintendent’s decision to the board, which upheld the superintendent’s denial.   This appeal ensued.

Petitioner claims, interalia, that respondent’s decision was arbitrary and capricious and constitutes “class discrimination.”  Petitioner argues that applicable laws, regulations and district policies do not prohibit the award of credit for online courses and that respondent has an established “precedent” of allowing students to earn credit through online study.  Respondent generally denies petitioner’s allegations and asserts that the petition fails to state a claim upon which relief may be granted.

I must first address petitioner’s reply and memorandum 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 a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  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.

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 Hall, 46 Ed Dept Rep 394, Decision No. 15,543; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542).  While I have reviewed petitioner’s memorandum of law, I have not considered those portions containing belated assertions or exhibits that are not part of the pleadings.

Turning to the merits, Education Law §§1709(3) and 1804(1) give boards of education broad authority to “prescribe the course of study by which [students] shall be graded and classified ....”  Thus, the decision as to what instructional programs are to be offered in a district’s schools is within the discretion of the board of education (seeAppeal of Schildhorn, 44 Ed Dept Rep 212, Decision No. 15,152 [school district requirement that all students earn physical education credits through physical education curriculum and not through extracurricular options was reasonable education policy]).  Absent a clear showing that a board’s decision not to award credit was arbitrary, capricious or unreasonable, it will not be set aside (seeAppeal of a Student with a Disability, 37 Ed Dept Rep 11, Decision No. 13,791).  Further, 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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Petitioner relies, in part, on respondent’s administrative regulation 5015a (“regulation 5015a”), entitled “Attendance Records:  Home Instruction.”  Petitioner argues that, at the time this policy was drafted, “it was understood and tacitly accepted that home instruction in whatever form was allowable.  Online courses therefore were similarly contemplated and approved or at the very least not disapproved of.”  However, respondent explains that regulation 5015a refers only to students who are receiving home instruction “due to a medical diagnosis that prevents them from physically attending school.”  Indeed, regulation 5015a specifically states that attendance records for such instruction should “indicate the diagnosis of each pupil listed.”  Petitioner’s argument that this provision’s silence with respect to online learning signifies a “tacit” acceptance thereof is also unavailing.  Even if regulation 5015a were generally applicable to all students, this provision clearly governs only the method of recording attendance for students who receive home instruction, rather than the method(s) through which such instruction may or may not be delivered.  By its terms, therefore, regulation 5015a provides no support for petitioner’s position.

Petitioner also alleges that respondent has an established practice of allowing students to “take summer school classes ... online courses and not even attend school (as long as a private tutor was involved) in full satisfaction of NYS requirements.”  To the contrary, respondent asserts that online courses are not part of the district’s curriculum and that it does not typically award course credit for online study.  In an affidavit, the superintendent explains that “[p]eer interaction and discussions are an important part of the [district’s] health curriculum.”  A sworn statement from the high school principal also explains that the district requires “full-time attendance for all required courses in order to foster the intellectual and social interaction that is a critical part of educational discourse and to ensure access to an appropriate curriculum.”

Moreover, the principal states that “students in like circumstances as [Veronica] have never been granted permission to take online courses in lieu of coursework” and that he has only approved online courses in three exceptional instances in which the students had completed at least four years at respondent’s high school, met all other requirements for a diploma and were a half credit short of graduation due to failing a course.  The principal notes that this is not the case with Veronica, who is on track to graduate in 2012 and has room in her schedule to take health during the 2009-2010 school year or during 11th or 12th grades.

The record contains no evidence that respondent has a written policy regarding online courses.  Other than petitioner’s conclusory allegations, there is nothing in the record which indicates that respondent’s practice has been applied unfairly or inconsistently.  Accordingly, based on the record before me, I find that petitioner has failed to carry her burden of establishing that respondent’s decision was arbitrary or capricious or otherwise discriminatory.

While the record indicates that Veronica is currently on track to graduate in 2012, the superintendent leaves open the possibility of a reconsideration of petitioner’s request should Veronica’s situation change.  Therefore, while the appeal must be dismissed, I note that nothing precludes petitioner from renewing her request in the future.

In light of this disposition, I need not consider petitioner’s remaining contentions.