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Decision No. 17,826

Appeal of J.G., on behalf of her daughter, A.G., from action of the Board of Education of the City School District of the City of Rye; Eric Bryne, as Superintendent; and Patricia Taylor, as High School Principal, regarding student grades.


Decision No. 17,826

(March 30, 2020)

Ingerman Smith, L.L.P., attorneys for respondents, Jason Imbiano, Esq., of counsel

TAHOE., Interim Commissioner.--Petitioner appeals from action of the Board of Education of the City School District of the City of Rye (“district”), Eric Byrne as superintendent of schools (“superintendent), and Patricia Taylor as high school principal (“principal”) (collectively, “respondents”) to deny her requests to permit her daughter, A.G. (“student”), to take a make-up final examination in Latin and to retake a mathematics examination.  The appeal must be dismissed.

The student was a sophomore at the district’s high school during the 2017-2018 school year.  During this school year, the student was absent from school for a period of time due to an illness.  Although the record is not entirely clear, petitioner alleges on appeal that the student was “compelled to take a math examination the day she returned to school,” which appears to have occurred sometime in March 2018.  Petitioner further alleges on appeal that the student was “refused ... time to learn the material she missed while ill prior to taking the examination.”  Sometime thereafter, petitioner requested that the student be permitted to retake the March 2018 math examination.  By email dated May 30, 2018, the principal denied petitioner’s request.  The principal advised petitioner that, if the student met with her math teacher for assistance with her coursework, she may be able to take an additional examination; however, there is no evidence in the record that the student did so.

Later that same school year, by email dated June 4, 2018, petitioner advised the high school’s assistant principal that the student would be out of town for her upcoming final examination in Latin (the “Latin examination”), scheduled for June 18, 2018.  Specifically, petitioner informed the assistant principal that the student planned to attend an out-of-state summer dance program and would leave for this program on June 16, 2018.  Petitioner inquired as to whether the student could either sit for the Latin examination earlier than the scheduled date or take the examination online on the scheduled date.

By email dated June 6, 2018, the assistant principal informed petitioner that, although the district did not give examinations earlier or online, he could “schedule a make[-]up examination” once the student returned.  Upon being informed that the student would not return until August 2018, the assistant principal advised petitioner by email dated June 14, 2018 that the student would nevertheless “have to take [the Latin examination] when she return[ed],” although the district generally “expect[s] [that] students will be [in school] until their last examination.”  The assistant principal instructed petitioner to “call [him during] the last week of August to schedule [the student’s] make[-]up [examination].”

The parties disagree as to whether petitioner contacted the district in August 2018.  Petitioner alleges that she called the district on August 29, 2018 to discuss scheduling the student’s make-up Latin examination.  Although petitioner alleges that her “phone records can confirm” this call, she does not submit any such records.  Respondents deny receiving any telephone call from petitioner in August 2018.

In an email to the assistant principal dated September 19, 2018, petitioner asked if the assistant principal had “received [her] voice mails,” asserting that she had “called a couple of times[] but ha[d] not heard back regarding [the student’s] final Latin exam.”

The assistant principal replied on September 20, 2018, indicating that he had “received a voicemail from [petitioner] on September 12th regarding [the student’s] final [Latin] examination.”  The assistant principal further asserted that, “[b]efore [the student] left [for the summer], [he and petitioner had] discussed that [the student] would need to take the examination in the beginning of August.”  Because respondents had “not [heard] from either [petitioner] or [the student] in August,” the assistant principal concluded that the student had missed her opportunity to take the Latin examination.  That same day, petitioner replied to the assistant principal’s email, asserting that he had not advised her that the student would need to take the examination in the beginning of August but, instead, had indicated that petitioner should call at the end of August to schedule the student’s make-up examination.  Petitioner thus requested that the assistant principal schedule the student’s make-up Latin examination.

By email dated September 26, 2018, the assistant principal informed petitioner that he had met with the principal and the student’s Latin teacher to discuss the requested make-up Latin examination.  He informed petitioner that the “consensus from the group meeting was [that the student] missed school during the testing period and before the school year [had] concluded.”  He further asserted that the “[Latin examinatino] was rescheduled and [the student] did not make it up during that time period.”  The assistant principal informed petitioner that the district was presently “unable to give [the student] a final exam from June,” and that the student’s “final grade for the course [would] remain the same from the 2017-2018 school [year].”

Petitioner eventually raised her concerns to the superintendent.  In an email dated October 30, 2018, the superintendent stated that he had “completed a thorough review of the information [petitioner] shared” and, based upon this review, would “not be overruling the ... decision.”  The superintendent concluded that “the school followed standard practice around testing in this instance,” and that the decision was made “consistent with past practice.”  Petitioner alleges that, as a result of the student missing the Latin examination, she received a grade of zero, which dropped her grade in the class from 97 to 77 percent.  This appeal ensued.

Petitioner argues that respondents’ imposition of the March 2018 mathematics examination and denial of her request to have the student take a make-up Latin examination were arbitrary and capricious.  Petitioner further argues that, with respect to the Latin examination, respondents’ reasoning was contradictory and confusing.  Petitioner requests that I order the district to allow the student to take a make-up Latin examination or, alternatively to adjust the student’s final grade in Latin during the 2017-2018 school year to reflect her grade in the course as it existed prior to the final Latin examination.  Petitioner also requests that the student be allowed to retake the math examination and that the student be granted time to learn the materials for such examination.  Finally, petitioner requests an order directing the district to create and distribute a written policy regarding make-up examinations.

Respondents argue that petitioner’s claims must be dismissed as untimely.  Respondents also argue that, under board policy, the student’s teacher and principal had discretion to assign grades to the student and there is no basis in the record to disturb their exercise of such discretion.  Respondents additionally argue that petitioner failed to provide any evidence that she contacted the school during the last week of August 2018 – as instructed by the assistant principal in June 2018 – to schedule the make-up Latin examination.

Turning first to respondents’ argument that 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 Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of C.S., 48 id. 497, Decision No. 15,929).  When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of G.H. and S.H., 57 Ed Dept Rep, Decision No. 17,269; Appeal of K.W., 48 id. 451, Decision No. 15,912).

Although not entirely clear from the record, it appears that the student took the mathematics examination sometime in March 2018 and, on May 30, 2018, the principal advised petitioner by email that the student could “not go back and [take] the old exam.”  The petition was served on November 28, 2018, well over 30 days after the principal’s May 30, 2018 determination.  Petitioner fails to set forth good cause, or any cause, for the delay in the petition, as required (8 NYCRR §275.16).  As such, petitioner’s claims regarding the math examination must be dismissed as untimely.

However, petitioner commenced this appeal within 30 days of respondents’ denial of her request to make-up the Latin examination.  Respondents allege that the assistant principal’s email dated September 26, 2018 represented their final determination on the issue.  While respondents claim that board policy confers the “Building Principal” with final decision-making power with respect to a student’s grade, the record reveals that the superintendent considered and rendered a determination on the issue subsequent to the assistant principal’s determination.[1]  The superintendent informed petitioner in an email dated October 30, 2018 that, based on his review, he would “not be overruling the ... decision” rendered by the assistant principal.  Although the superintendent may have had discretion to refuse to consider petitioner’s subsequent request in light of the assistant principal’s September 26, 2018 determination, the superintendent entertained petitioner’s request and issued a new, final decision on October 30, 2018 (see Appeal of Clary, 59 Ed Dept Rep, Decision No. 17,703; Appeal of Skiff, 57 id., Decision No. 17,191).  Under these circumstances, I decline to dismiss the appeal as untimely.

Although petitioner’s claims regarding the Latin examination are timely, they must be dismissed on the merits.  I will not substitute my judgment for that of school officials on a student's grade absent a clear showing that the determination was arbitrary, capricious, or unreasonable (Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, Decision No. 16,624; Appeal of a Student With a Disability, 48 id. 94, Decision No. 15,802; aff'd sub nom Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526; Appeal of T.M. and A.M., 45 id. 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Schmitt, 39 id. 617, Decision No. 14,329).  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).

In this matter, petitioner requests that the student be allowed to take a make-up Latin examination for the 2017-2018 school year or, in the alternative, that the student’s grade in Latin for that school year be revised to reflect her grade as it existed prior to the June 2018 examination.  The 2017-2018 school year has concluded, and, as respondents explain in their papers, the district only permits students “to make up exams prior to the beginning of the following school year[,] as it becomes an administrative burden for High School staff.”  Respondents further explain that course selection is often contingent upon whether a student has passed prerequisite courses; as a result, grades must be finalized well before the start of the next school year.  Beyond her conclusory assertions, petitioner fails to establish how respondents’ decision not to adjust the student’s Latin grade or to permit the student to take a make-up Latin examination after the start of the next school year was arbitrary, capricious, or unreasonable.  Thus, I cannot grant petitioner’s requested relief and the appeal must be dismissed.

While the appeal must be dismissed on this basis, I am compelled to note that petitioner and the student were provided unclear and inconsistent information regarding the student’s ability to take a make-up Latin examination upon her return in August 2018, particularly with respect to the deadline by which she would be expected to take the examination.  In a June 14, 2018 email, the assistant principal instructed petitioner to “[p]lease call the last week of August to schedule her make[-]up.”  However, in a September 20, 2018 email, the assistant principal stated:  “Before [the student] left, we discussed that she would need to take the examination in the beginning of August.”  While petitioner has not proven on this record that she contacted the school at any time in August 2018 as instructed, the record nevertheless reflects that she received conflicting information as to when, and under what circumstances, the student would be allowed to take the make-up Latin examination.  Accordingly, I admonish the district to, in the future, ensure that its policies concerning make-up examinations are clearly and effectively communicated to students and parents.  Nevertheless, based on the record before me and that the district’s rationale for denying the student the ability to take the make-up Latin examination was rational and reasonable, I am constrained to dismiss the petition as discussed above.

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




[1] Respondents also fail to explain whether the assistant principal acted in the building principal’s stead or whether, had the superintendent not issued a determination on petitioner’s appeal, petitioner could have appealed to the building principal as contemplated by the policy.