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Decision No. 16,542


 Appeal of J.A., V, on behalf of his son E.A., from action of the Board of Education of the Haverstraw-Stony Point Central School District1 regarding student placement and investigations.

Decision No. 16,542

(August 30, 2013)

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Daniel Petigrow, Esq., of counsel

KING, JR., Commissioner--Petitioner appeals the decisions of the Board of Education of the Haverstraw-Stony Point Central School District (“respondent”) to award E.A. transfer course credit based on its interpretation of his academic transcript and to classify him as a high school senior. Petitioner also challenges certain district investigations. The appeal must be dismissed.

Prior to enrolling in respondent’s high school in the2010-2011 school year, E.A. attended school in the Dominican Republic. When E.A. enrolled in the district, he provided a copy of an academic transcript from his schooling the Dominican Republic (“transcript”) and respondent evaluated the coursework in accordance with §100.5(d)(5) of the Commissioner’s regulations and its internal policies. The record indicates that, at that time, the district awarded E.A. a total of 11.5 credits based on his transcript, including one credit as a native speaker of Spanish and four credits for Languages Other than English(“LOTE”).2 For the 2010-2011 school year, E.A. was placed in both Regents and non-Regents classes in respondent’s high school. According to petitioner, during the summer of2011, E.A.’s counselor informed him that he would be given an additional year to complete high school and would be expected to graduate in 2014.

For the 2010-2011 school year, E.A. was placed in 10thgrade, for 2011-2012 he was placed in 11th grade, and for2012-2013 he was placed in 12th grade. On or about February 4, 2013, petitioner and the district met to discuss E.A.’s need to complete a health course in order to meet graduation requirements. The district offered E.A. the option to take health as an “independent study” during the 2012-2013 school year or to take health in the fall of2013 and graduate in January 2014. Petitioner and E.A. chose the independent study option. The record indicates that E.A. also had to complete a physical education requirement for graduation and that he chose to do so during his lunch period every other day.

While the district’s legal name is Haverstraw-Stony Point Central School District, its popular name is North Rockland. . 2 I note that the district later offered to reduce the number of credits awarded by two. However, the record indicates that such reduction did not affect E.A.’s grade status or graduation, as he had still accumulated more than the 22 credits required for graduation. 1

Pursuant to various inquires made by petitioner’s representative, on February 11, 2013 respondent’s superintendent and assistant superintendent for educational services issued a joint letter that provided a detailed explanation as to how E.A.’s transfer credits and course enrollments were determined.

On or about March 5, 2013, E.A. filed nine complaint sat North Rockland High School pursuant to the Dignity for All Students Act (“DASA,” Education Law, Article 2). In essence, these complaints against high school staff and administrators alleged discrimination with respect to E.A.’s enrollment and course placement, award of transfer credit, cancellation of appointments with petitioner or other representatives, and discrimination against students from the Dominican Republic. An investigation by the high school’s Dignity Act coordinator ensued, which included a March 21, 2013 meeting between petitioner, E.A. and district staff, where petitioner and E.A. were informed that the DASA investigation had been completed and the evidence did not support a finding of harassment or bullying. E.A. then filed two additional DASA complaints on April 9, 2013. The first complaint alleged that, at a February 4, 2013 meeting with district staff, E.A. was the subject of derogatory slurs, was “excluded from a fair[and] complete ... education” and that there exists “discrimination against Dominican transferees/invalid transcript.” The second complaint alleged that, at a March21, 2013 meeting with district staff, petitioner was “coerced” into signing certain documents related to the DASA complaints and investigation. On or about April 11,2013, respondent’s superintendent issued a letter that these complaints did not fall under the definition of bullying and/or harassment pursuant to DASA.

In addition to the above DASA complaints, petitioner’s representative also filed a Title IX discrimination claim based on national origin, alleging that the district had a“[get] out the door” policy for students from the Dominican Republic. The district’s Title IX coordinator investigated the complaint and, on May 1, 2013, issued a letter to petitioner’s son that the evidence did not support a finding of discrimination based on national origin.

This appeal ensued. For interim relief, petitioner requested that E.A. be permitted to attend school in the district for the 2013-2014 school year with “a status of senior.” Such request was denied on May 7, 2013.

Petitioner alleges that respondent acted improperly in awarding transfer credit to E.A., classifying him as a senior during the 2012-2013 school year, enrolling him in certain courses, requiring him to take physical education instead of lunch and to take his health course after school, and dismissing his DASA complaints. In petitioner’s reply, he also attempts to challenge respondent’s May 1, 2013 Title IX discrimination determination.

Respondent argues that the appeal must be dismissed as untimely. Respondent claims that its determinations were proper in all respects and were not arbitrary and capricious. Respondent maintains that it adequately investigated E.A.’s DASA complaints and also contends that a board of education has broad discretion with respect to the award of transfer credit and course placement.

I must first address several procedural issues. Respondent argues that petitioner’s reply should be disregarded because it contains new allegations and assertions. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8NYCRR §§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, 48id. 418, Decision No. 15,901). 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. However, to the extent that respondent’s May 1, 2013 response regarding petitioner’s Title IX discrimination complaint had not yet been issued at the time this appealwas commenced, I have considered this portion of petitioner’s reply.

In August 2013, petitioner also requested permission to submit additional materials, “which directly refute the Respondent’s statements in their verified Answer and Memorandum of Law,” pursuant to §276.5 of the Commissioner’s regulations. By letter dated August 19,2013, respondent asserted that the appeal is moot because E.A. graduated from respondent’s high school on June 21,2013, and requested that I not accept petitioner’s submission or, in the alternative, that I permit respondent time to respond.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, etal., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405,Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).

Petitioner requests permission to submit the following additional information: a translation of E.A.’s Dominican Republic transcript; a hall-pass; a letter from a teacher purportedly verifying that a specific meeting took place in March 2013; affidavits from two of E.A.’s classmates regarding E.A.’s lunch time; and additional allegations of discrimination against students from the Dominican Republic, including E.A.’s sister. This submission, along with additional requests for relief, also contains a copy of E.A.’s June 2013 report card and July2013 transcript which petitioner asserts prove that E.A. did not complete physical education as required for graduation. Petitioner claims that some of the documents only became available “recently” and that others “were obtained from third parties who may have been unavailable due to vacations, etc.” However, except for the June 2013report card and July 2013 transcript, petitioner’s general statements do not sufficiently address why the documents could not be submitted with the petition. Accordingly, I find that petitioner’s additional submission adds new arguments and exhibits that should have been included in his petition. Accordingly, except for the June 2013 report card and July 2013 transcript, I have not considered petitioner’s August 2013 submission.

In its response to petitioner’s August 2013 submission, respondent claims that, because E.A. received his high school diploma in June 2013, the appeal is moot. Generally, 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). Petitioner raises several claims and seeks relief related to E.A.’s status as a student of the district, including his claims that the district failed to properly investigate E.A.’s DASA complaints, in which he alleged that he was subject to harassment/discrimination. As set forth below, the disposition of petitioner’s claims regarding E.A.’s graduation renders the aforementioned claims moot.

To the extent petitioner attempts to challenge respondent’s determination that E.A.’s April 2013 allegations that respondent’s staff discriminated against petitioner were not covered under DASA, such claim must also be dismissed. Education Law, Article 2 prohibits the harassment, bullying and discrimination of students by employees or students on school property or at a school function (Education Law §12[1]). The law does not cover such conduct committed against individuals other than students, such as E.A.’s father, petitioner in this matter.

To the extent petitioner attempts to challenge respondent’s handling and determination of his Title IX complaint, such claim must be dismissed since an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum to adjudicate claims under Title IX of the Education Amendments of 1972 (see 20 U.S.C. §1681 and34 C.F.R. §106.71; Appeal of Berman, 46 Ed Dept Rep 64,Decision No. 15,442).

Petitioner’s claims regarding transfer credit, grade placement and course enrollment must be dismissed as 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).

The instant appeal was commenced on April 22, 2013.Respondent’s determination regarding E.A.’s transcript analysis and grade-level placement was made during the2010-2011 academic year, at the time E.A.’s Dominican Republic transcript was submitted to the district. At that time, E.A. was awarded 11.5 credits and placed in the 10thgrade. The instant appeal was not commenced until April22, 2013 – more than two years later. In regard to E.A.’s course enrollments, the record indicates that he was registered in a non-Regents mathematics course during the2011-2012 school year, and a non-Regents physics and, according to petitioner, a non-Regents United States History course during the 2012-2013 school year. All of these placement decisions occurred more than 30 days prior to the commencement of this appeal. Even if I were to accept respondent’s February 11, 2013 letter as the date of its “final” decision regarding the awarding of transfer credit, grade placement and enrollment in courses (including the matters raised by petitioner regarding the scheduling of health, lunch and physical education), such claims would still be untimely.

Even if these claims were not dismissed as untimely, they would be dismissed on the merits. Boards of education have broad authority to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another. Consistent with that authority, aboard has the power to place students in particular classes(Appeal of J.A., 49 Ed Dept Rep 167, Decision 15,987;Appeal of Gergely, 47 id. 423, Decision No. 15,742). The Commissioner will not substitute his judgment for that of aboard of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of J.A., 49 Ed Dept Rep 167, Decision No. 15,987; Appeal of Gergely, 47 id. 423, Decision No. 15,742).

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., 48id. 348, Decision No. 15,882).

On this record, petitioner has not carried his burden of proof. While petitioner may disagree with respondent’s analysis of E.A.’s transcript and placement decisions, he has not established that such decisions were arbitrary or capricious. Rather, the record indicates that, in making its determinations, respondent consulted the applicable Commissioner’s regulations and district policies and conferred with the Hudson Valley Regional Bilingual Education-Resource Network, as well as the school E.A. attended in the Dominican Republic. On this record, I cannot conclude that respondent acted arbitrarily or capriciously.

Finally, petitioner alleges in the petition that respondent “intends to graduate [E.A.] without fulfilling the P.E. requirement.” As noted above, I have considered E.A.’s June 2013 report card and July 2013 transcript and respondent’s response thereto, and find that, on this record, petitioner has not established that E.A. failed to complete physical education and was, therefore, not entitled to graduate. The record indicates that, although E.A. received a grade of 55 for physical education and was absent from physical education class ten times during the fourth marking period, he received grades of 100 during each of the other three marking periods and was not absent from physical education during those marking periods. Respondent has submitted a copy of its attendance policy, which states as follows: “Cumulative absences of twenty (20) periods of instruction for a full-year course (ten[10] periods for 1/2 year courses) ... may render a student ineligible to earn credit for the course or school year. The District retains discretion to evaluate a student’s attendance in light of academic performance and other indicators in deciding whether credit shall be denied. ”Respondent’s superintendent avers that, in this case, the district exercised its discretion under the policy to award

E.A. physical education credit because “[a]lthough [he] had received a grade of fifty-five in physical education in marking period four, he had received a grade of one hundred in the three other marking periods ... [and] finished the2012-2013 school year with an average of eighty-eight in physical education.” On this record, petitioner failed to sustain his burden of proof to show E.A. failed physical education and was not entitled to a high school diploma. Petitioner has also failed to prove that respondent applied its policy inconsistently.

I have considered petitioner’s remaining contentions and find them to be without merit.