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Decision No. 17,769

Appeal of N.F. and C.F., on behalf of N.F., from action of the Board of Education of the Bellmore-Merrick Central High School District regarding an attendance policy.

Decision No. 17,769

(October 10, 2019)

Minerva & D’Agostino, P.C., attorneys for petitioner, Christopher G. Kirby, Esq., of counsel

Ingerman Smith, L.L.P., attorneys for respondent, Steven A. Goodstadt, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioners challenge the decision of the Board of Education of the Bellmore-Merrick Central High School District (“respondent”) to reduce their daughter N.F.’s quarterly grade average in three classes by five points due to excessive absences.  The appeal must be sustained.

Respondent has a minimum attendance policy for its middle schools, Policy 5100 MS (“policy”).  The policy provides that excused absences include, among others, absences due to illness where a student provides a note from a medical professional and absences due to bereavement for a death in a student’s family.  The policy also provides that “[f]ive unexcused absences” in any class during a quarter will result in the loss of five points from the student’s grade.  The policy further provides that, “[e]ach quarter[,] a student will have the opportunity to complete one make-up assignment per class that will reduce the five absences to four.”  However, if a student incurs an additional absence thereafter, the five-point grade penalty is reinstated.

During the 2017-2018 school year, N.F. attended seventh grade at Merrick Avenue Middle School.  N.F. was enrolled in Spanish, Science, English, Math, and Social Studies.

In a letter dated January 25, 2018, respondent notified petitioners that N.F. accrued more than five unexcused absences during the second quarter of the school year.  The letter stated that, although N.F. met with the attendance dean and discussed the completion of make-up assignments for her Spanish and Science classes, she would lose five points in Math, English, and Social Studies.  The record reflects that N.F.’s second quarter grades in Math, English, and Social Studies were thereafter reduced by five points.

The policy provides that a parent may submit a written appeal within a week of notification if he or she believes that extenuating circumstances warrant an exception from the policy.  By letter dated January 30, 2018, petitioners’ counsel requested that the principal provide additional information regarding the appeal process.  The principal forwarded this letter to respondent’s counsel, who advised petitioners’ counsel by letter dated January 30, 2018 that petitioners’ appeal must be “submitted in writing to the grade level administrator ... and/or Building Principal ... on or before February 2, 2018.”  In accordance with the policy, petitioners commenced an appeal by submitting a letter to the principal of N.F.’s school on January 30, 2018 explaining the circumstances surrounding N.F.’s absences.

By email dated January 31, 2018, the principal acknowledged receipt of petitioners’ letter of appeal and advised petitioners that they would be contacted to schedule an appointment to discuss the appeal.  By letter dated February 1, 2018, petitioners’ counsel advised respondent’s counsel that petitioners had properly and timely commenced an appeal by submitting their letter of appeal to the principal; however, respondent’s counsel did not receive the letter until March 9, 2018, as petitioners’ counsel initially sent the letter to an incorrect email address.  Based on the record, it does not appear that respondent issued a decision on petitioners’ appeal.[1]  This appeal ensued.

Petitioners contend that N.F.’s absences due to illness on November 13 and 14, 2017 should be excused under the policy since they submitted the required medical documentation.  Petitioners further contend that the policy’s requirement that students provide medical documentation for every illness is unduly burdensome and unfairly penalizes the district’s middle school students because it is inconsistent with respondent’s attendance policy for their high schools, Policy 5100 HS.  Petitioners also contend that N.F.’s absence on December 7, 2017 should be excused under the policy since N.F. was mourning the death of a close friend.  Petitioners argue that, even if such absence is not excused as bereavement under the policy, it should be considered an extenuating circumstance warranting exemption from such policy.  Petitioners further contend that N.F.’s half-day absence on December 14, 2017 due to severe menstrual cramps should be exempt from the policy as an extenuating circumstance.  Petitioners maintain that they did not provide the district with medical documentation for this absence because the circumstances did not warrant a visit to a doctor’s office.  For relief, petitioners request that I annul respondent’s decision to penalize N.F. five points for excessive absences pursuant to the policy.

Respondent contends that the petition should be dismissed for failure to set forth a claim upon which relief can be granted.  Respondent also contends that its policy was made in accordance with the requirements of the Commissioner’s regulations, that the district’s decision to classify N.F.’s absences from school as unexcused was in accordance with such policy, and that its decision and policy are not arbitrary or capricious.

First, I must address two procedural matters.  Respondent objects to the scope of petitioners’ reply.  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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 also contends that the petition fails to state a claim upon which relief can be granted.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of C.P., 55 Ed Dept Rep, Decision No. 16,784; Appeal of Stepien, 48 id. 487, Decision No. 15,926).  Here, petitioners clearly state a claim that respondent should excuse N.F.’s four absences and, consequently, not impose the five-point penalty for excessive absences against her.  Petitioners also clearly state a demand for relief in requesting that I annul such five-point penalty.  Therefore, I decline to dismiss the petition on this basis.

Turning to the merits, Education Law §1709(2), as made applicable to central high school districts under Education Law §1903(1), empowers a board of education to establish rules and regulations concerning the order and discipline of the schools as it may deem necessary.  A board of education has the authority to establish a disciplinary policy concerning absenteeism, including one which may lead to suspension (Matter of Caskey, et al., 21 Ed Dept Rep 138, Decision No. 10,625; Matter of Caufield, 18 id. 574, Decision No. 9,973).  However, there must be a reasonable relationship between the absenteeism or other misconduct and the sanction imposed, and a board of education may not impose an academic sanction such as a reduction in grades for misbehavior which is unrelated to academic achievement (Appeal of Pappas, 39 Ed Dept Rep 310, Decision No. 14,246; Matter of Gibbons, 22 id. 134, Decision No. 10,908; Matter of Caskey, et al., 21 id. 138, Decision No. 10,625; Matter of MacWhinnie, 20 id. 145, Decision No. 10,355).  As the Commissioner has explained, “[a] grade is intended to be an educational evaluation, that is, an estimation of a student’s level of achievement within a particular subject” (Matter of MacWhinnie, 20 Ed Dept Rep 145, Decision No. 10,355).  Thus, only misconduct that bears a direct relationship to a student’s academic achievement in a particular course – cheating, for example (see Appeal of J.J.-Q.L., 58 Ed Dept Rep, Decision No. 17,562) – may subject a student to a reduction in his or her grade (Matter of MacWhinnie, 20 Ed Dept Rep 145, Decision No. 10,355).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Prior Commissioner’s decisions have held that a district may not artificially reduce the grade actually earned on an assignment or examination as a penalty for exceeding an attendance policy absence limit (Application of a Child with a Handicapping Condition, 32 Ed Dept Rep 83, Decision No. 12,766; Appeal of Burns, 29 id. 103 Decision No. 12,235; Appeal of Shannon, 26 id. 218, Decision No. 11,733).  This appeal is analogous in all relevant aspects to Matter of Caskey, et al. (21 Ed Dept Rep 138, Decision No. 10,625) and I hereby adopt its reasoning.  In Matter of Caskey, a school district applied a policy requiring a five percent penalty for “each day of unexcused absence from a class.”  Several students on a junior-senior high school wrestling team attended a State wrestling championship instead of school on a single day and, consequently, lost five percent of their grades in each class that they missed.  The Commissioner stated that, “[t]o warrant an academic sanction” such as a five percent penalty, any “misconduct must be directly related to the student’s academic performance.”  The Commissioner found no such relation between the sanction and the students’ absences, noting that “a board of education may not subvert the purpose of grading (i.e. educational evaluation) by arbitrarily reducing a student’s grades as a means of imposing discipline.”  The Commissioner annulled the district’s five percent reduction of the students’ grades and ordered that the students receive the grades they would have received absent such deduction.

Here, as in Matter of Caskey, et al. (21 Ed Dept Rep 138, Decision No. 10,625), N.F. received an academic sanction of five percent of her grade “for conduct unrelated to [her] academic performance.”[2]  Accordingly, I find that respondent’s imposition of an automatic, five-point grade penalty based upon a student’s accrual of five unexcused absences to be contrary to sound educational policy (Matter of Caskey, et al., 21 Ed Dept Rep 138, Decision No. 10,625; Matter of MacWhinnie, 20 id. 145, Decision No. 10,355).  Therefore, N.F.’s academic sanctions imposed pursuant to the policy must be annulled (Matter of Caskey, et al., 21 Ed Dept Rep 138, Decision No. 10,625).

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


IT IS ORDERED that the action of respondent in reducing N.F.’s grades by five percent is annulled; and

IT IS ORDERED that respondent assign to petitioners’ daughter N.F. those grades that she would have received had the grade reduction not been imposed.



[1] On appeal, respondent contends that its actions amount to a constructive denial of petitioners’ appeal, and both parties request a decision on the merits.  Accordingly, I find that remand to respondent would be futile under the circumstances and will proceed to address petitioners’ appeal (cf. Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,258).


[2] While respondent’s policy refers to five grade points, this represents five percentage points (i.e. 5/100).