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Decision No. 16,232

Appeal of R.J.K. and L.K., on behalf of their daughter C.K., from action of the Board of Education of the Plainview-Old Bethpage Central School District and Lori Weinstein, board president, regarding grading.

Decision No. 16,232

(June 3, 2011)

Guercio & Guercio, LLP, attorneys for respondents, Barbara P. Aloe, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Plainview-Old Bethpage Central School District (“respondent board”) and Lori Weinstein, board president,[1](together “respondents”) regarding their daughter’s grades.  The appeal must be dismissed.

During the 2008-2009 school year petitioners’ daughter, C.K., was a ninth grade student in respondents’ district.  In or about January 2009, C.K. began receiving home instruction due to medical issues which apparently prevented her from attending school.  C.K. received home instruction until her family moved out of the district on or about December 22, 2009, with the exception of 20 days in March 2009, when home instruction was discontinued because of petitioners’ alleged failure to provide supporting medical documentation.  Home tutoring resumed in April 2009.  To address the missed sessions and other sessions that were shortened or canceled by petitioners, the district offered additional tutoring.

At the end of the 2008-2009 school year, C.K. passed her course work with the exception of English in which she received an “Incomplete.”  She received a grade of 85 in Global History.  Petitioners were not satisfied with those grades and the district continued to address C.K.’s ninth grade Global History and English coursework during the fall of 2009, when C.K. was receiving home instruction for her tenth grade courses.  The district apparently proposed additional assessments for Global History and assignments for English.  It does not appear that they were implemented.

In December 2009, the District convened a meeting of its §504 team that, apparently, was adjourned to obtain further information.  Petitioners moved from the district prior to the §504 team reconvening.  After leaving the district, petitioners received C.K.’s transcript which reflected that she received a final grade of 85 in Global History and an “Incomplete” in English.

By letter dated March 26, 2010 to the superintendent, petitioners challenged C.K.’s Global History and English grades.  The superintendent reviewed these grades, and by letter dated May 10, 2010, advised petitioners that the grades were appropriate.  By letter dated June 8, 2010, petitioners appealed this determination to respondent board which, by letter dated July 9, 2010, denied petitioners’ appeal.  This appeal ensued.

Petitioners challenge C.K.’s Global History and English grades, asserting that the district failed to arrange for C.K. to make up instruction during the 20 days in March 2009 when home instruction was not provided.  Petitioners allege that C.K. did not receive satisfactory home instruction in that the instructors and, therefore, C.K., were unaware of the required course work.  Petitioners maintain that the instructors’ failure to obtain and assign required course work resulted from a contract dispute with the district’s teachers.  Finally, petitioners maintain that respondent board’s determination was arbitrary and failed to comply with its own procedures and standards.  They seek an order directing respondent to calculate C.K.’s grades in Global History and English based only upon the work she was assigned and completed.

Respondents allege that the appeal is untimely, moot and that petitioners have failed to establish a clear, legal right to the relief requested.  They also assert that the board’s determination is not arbitrary, capricious or an abuse of discretion, but is reasonable based on the record.  Respondents allege that the Commissioner of Education lacks jurisdiction to review claims brought pursuant to §504 of the Rehabilitation Act of 1973 (“§504”) or the Individuals with Disabilities Education Act (“IDEA”), and that petitioners have failed to exhaust their administrative remedies under these laws.  Finally, respondents challenge the scope of petitioners’ verified reply.

I will first address several procedural matters.  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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  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.

Respondents assert the appeal is untimely.  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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Respondent board denied petitioners’ appeal by letter dated July 9, 2010.  Petitioners commenced this appeal on August 5, 2010, within the required 30 day period.  Therefore, the appeal is timely.

Respondents contend that, because petitioners moved from the district, the board no longer has jurisdiction over C.K.  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 a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Respondent board is responsible for the grades it awarded to C.K., those grades become part of the student’s permanent record and I cannot conclude that it lacks the authority or ability to adjust those grades, despite C.K.’s transfer to another district, should petitioners prevail (seeAppeal of Krom, 37 Ed Dept Rep 459, Decision No. 13,905).  Therefore, I decline to dismiss the appeal as academic.

Respondent maintains that, to the extent petitioners assert claims under §504 or the IDEA, I lack jurisdiction to entertain them.  Respondent is correct.  Enforcement of §504 is within the jurisdiction of the federal courts, the U.S. Department of Justice and the U.S. Department of Education and may not be obtained in an appeal brought pursuant to Education Law §310 (Appeal of C.C. and E.C., 48 Ed Dept Rep 528, Decision No. 15,938; Appeal of a Student with a Disability, 48 id. 108, Decision No. 15,806).  Similarly, claims brought to enforce rights under the IDEA must be addressed through the due process provisions of the IDEA, 20 USC §1415, and Education Law §4404.

With respect to petitioners’ challenge to C.K.’s grades, decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (see Education Law §§1709[3] and 1804[1];  Appeal of Shaver, 38 Ed Dept Rep 570, Decision No. 14,096;  Appeal of Krom, 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 Krom, 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 Krom, 37 id. 459, Decision No. 13,905; Appeal of Baker-Stein, 37 id. 401, Decision No. 13,889).

Petitioners claim C.K.’s grade of 85 in Global History and an “Incomplete” in English unfairly resulted from respondents’ failure to make up classes missed in March 2009, as well as from inappropriate instructors, uncertainty of the curriculum and failure to provide proper course work.  The assistant superintendent of personnel and administration (“assistant superintendent”) avers that he reviewed petitioners’ concerns with the high school principal, Global History home instructor and the English chairperson and determined that the grades assigned to C.K. were appropriately awarded.  He also avers that C.K. was provided with repeated opportunities to make up missed work and/or have her mastery of the material re-assessed.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

In March 2009, after C.K. had been provided home instruction for several weeks, it was discontinued, apparently due to lack of supporting medical documentation.  C.K. was required to attend at the high school but did not do so.  Following receipt of additional medical documentation and conversations among school officials, C.K.’s home instruction was reinstated as of April 1, 2009, after 20 missed days.  The district agreed to provide her with make-up instructional sessions to compensate for the time that had been lost during the course of the year.

The assistant superintendent provided a sworn affidavit stating that the district’s home instructors met with resistance from petitioners in their attempts to provide C.K. with home instruction.  He avers that the home instructors were frequently turned away without being permitted to provide instruction, instructional sessions were cut short and telephone calls to petitioners to schedule instructional sessions were not returned.  The district’s director of pupil personnel reported the same in her sworn affidavit.  Petitioners indicate that they determined C.K. was fatigued and frequently could not complete the tutoring sessions.

The assistant superintendent avers that, in spite of the limitations imposed by petitioners, the home instructors accommodated C.K., worked with her at her own pace and provided C.K. with her required curriculum and instruction.  The assistant superintendent and director of pupil personnel both aver that they never received any reports from home instructors that they were having difficulty receiving work and curriculum information and materials from district teachers.  Tutors’ reports reflect continuous contact with the district’s English and Global History teachers.

In response to petitioners’ initial complaints regarding C.K.’s “Incomplete” in English and grade of 85 in Global History, the assistant superintendent asked the high school principal to review the Global History grade.  He also asked the English chairperson to create another unit of study for C.K.  He again advised petitioners of the difficulties the tutors were having obtaining access to C.K. for home instruction.  With respect to C.K.’s Global History grade of 85, the record indicates that she received a grade of 75 for marking periods three and four because she did not complete all the required chapters and did not submit all the required work.  The assistant superintendent avers that, in an effort to improve her grade, the high school principal and the Global History chairperson told petitioners during the fall of 2009 that C.K. would be permitted to take an examination to assess the work that had been assigned to her during marking periods three and four in order to reassess her class grade of 75.  Neither petitioner nor C.K. contacted the high school principal or the department chairperson with respect to this offer.  Likewise, the district offered C.K. opportunities to complete her English course work to earn a grade, of which C.K. never took advantage.

On the record, I find petitioners’ contention that the district made no provision allowing C.K. to catch up on school work she had missed to be without merit.  The record indicates that respondents provided opportunities to C.K. to make up work or be reassessed.  Nor is there evidence, other than petitioners’ conclusory allegations, that the tutors did not know the curriculum material or provide adequate instruction in English and Global History when they were able to access C.K.  I note that C.K.’s grades in her other courses were satisfactory to petitioners.

Petitioners have the burden of proving the right to the relief requested.  On this record, petitioners have not carried that burden.  I am unable to conclude that respondents’ actions in awarding C.K. the grade of 85 in Global History or the “Incomplete” in English were arbitrary and capricious or unreasonable.

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



[1] The record indicates that Lori Weinstein’s term of office expired on June 30, 2010 and she is no longer a board member.  Moreover, I note that petitioners set forth no separate claims and seek no specific relief as against the board president.