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Decision No. 17,982

Appeal of AYANA NORTHINGTON, on behalf of her daughter, from action of the New York City Department of Education regarding grading policies.

Decision No. 17,982

(April 15, 2021)

            James E. Johnson, Corporation Counsel for the City of New York, attorneys for respondent, Lana Koroleva, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to revise its grading policy for spring 2020.  The appeal must be dismissed.

During the 2019-2020 school year, petitioner’s daughter (the “student”) attended seventh grade in one of respondent’s middle schools.  On March 16, 2020, the Governor issued an Executive Order directing all schools within New York State to close as of March 18, 2020 and to develop plans for “alternative instructional options” in response to the COVID-19 pandemic (Executive Order [A. Cuomo] No. 202.4 [9 NYCRR 8.202.4]; Executive Order [A. Cuomo] No. 202 [9 NYCRR 8.202]).  Shortly thereafter, respondent transitioned to remote instruction.  The Governor subsequently extended the mandatory school closures and provision of alternative instruction for the remainder of the 2019-2020 school year (Executive Order [A. Cuomo] 202.28 [9 NYCRR 8.202.28]; see Executive Orders [A. Cuomo] 202.11, 202.18 [9 NYCRR 8.202.11, 8.202.18]). 

On May 1, 2020, respondent instituted an “adjusted K-12 citywide grading policy” for the remainder of the 2019-2020 school year to provide “flexibility to families and students grappling with the COVID-19 crisis” (the “spring 2020 policy”).  Under the policy, students in grades six through eight received one of three final grades for the 2019-2020 school year:  “Meets Standards,” “Needs Improvement,” or “Course in Progress.”  Students in grades 9 through 12 remained subject to “the same grading scales they had before remote learning with the addition of a ‘Course in Progress’ rating for students who [could not] submit work or demonstrate mastery.”

The student received final grades of “Meets Standards” in all of her seventh-grade classes for the 2019-2020 school year.  Petitioner indicates that she became aware of the student’s final grades on July 29, 2020 and “filed a formal complaint with [r]espondent, via telephone,” on August 4, 2020.  In addition, petitioner objected to the spring 2020 grading policy in a letter dated August 6, 2020, which was addressed to respondent, respondent’s Chancellor, the Governor, and the Mayor of the City of New York.  In her letter, petitioner asserted that it was the student’s “right to keep the grades she actually earned.”  Noting the importance of seventh-grade grades “with respect to the high school admission process,” petitioner suggested that the student’s receipt of “Meets Standards” grades rather than numerical grades would place the student at a disadvantage compared to “students [who] received actual grades from private schools.”  Petitioner further alleged that the spring 2020 grading policy “only took into consideration those students who performed poorly or failed” and “completely disregarded those who excelled.”  Petitioner requested that respondent revise the spring 2020 grading policy so that middle school students could “be afforded the same opportunity as high school students with the option to keep their grades.”

On August 10, 2020, according to petitioner, the principal of the student’s school informed her via telephone that, although the student’s grades could not be changed, “notes would be added to [the student’s] report card” indicating that the student had “exceeded standards.”  Petitioner asserts that, on August 13, 2020, she “received an email from the Chancellor’s office advising [her] that an appeal must be filed with the Commissioner ....”  This appeal ensued.

Petitioner argues that the student has “been cheated” by the spring 2020 grading policy because she did not receive “the grades [she] worked hard for and earned”; she generally asserts that the spring 2020 policy is arbitrary, capricious, and “unfair to all hardworking students.”  Petitioner further contends that seventh-grade grades are “very important for the high school admissions process” and, therefore, the 2020 grading policy will have a “permanent and lasting effect on [students’] next academic step,” insofar as it eliminates any “distinction between those students who excelled and those who did not.”  Petitioner also asserts that the grading policy gives private schools students, who presumably received numerical grades, “an unfair advantage.”  Petitioner seeks an order directing (1) that “parents of all middle school students be afforded the same policy as high school students with the option to keep their child’s grade,” and (2) that respondent change the student’s “Meets Standards” grades to “the actual final grades she earned and is entitled to.”

Respondent argues that petitioner lacks standing to bring this appeal because “it is premature to speculate how the temporary grading policy will affect the high school admission process in the immediate future.”  In this vein, respondent asserts that it is “in the process of developing additional guidance on the admissions process to ensure that the impacts of COVID-19 will not be held against any student in the middle and high school admissions process.”  Respondent further defends its adoption of the spring 2020 grading policy as a rational response to the COVID-19 pandemic.

Initially, respondent contends that petitioner lacks standing to maintain this appeal, on behalf of either the student or other middle school students.  An individual may not maintain an appeal pursuant to Education Law § 310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal, or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only an individual who is directly affected by an action has standing to commence an appeal therefrom (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853). 

I find that petitioner has standing to commence this appeal on behalf of the student.  Although I agree with respondent that petitioner’s claims are speculative with respect to any anticipated effect of the spring 2020 grading policy on the student’s admission to high school, the student nevertheless received final grades for the 2019-2020 school year that are different from the ones she would have received but for the spring 2020 grading policy.  This appeal is therefore distinguishable from the cases relied upon by respondent because the student has been directly affected by the action that petitioner challenges (cf. Appeal of Farago, 40 Ed Dept Rep 168, Decision No. 14,450 [petitioner lacked standing because he alleged only potential “inconvenience” or indirect harm resulting from the challenged action]; Appeal of Goloski, 34 id. 565, Decision No. 13,410 [petitioner lacked standing because his daughter “did not receive any grade or point reduction” pursuant to the challenged policy]).  Accordingly, I find that the student is aggrieved by respondent’s policy insofar as her final grades have been impacted thereby.  Consequently, petitioner has standing to challenge the policy on the student’s behalf.

However, petitioner’s claims asserted on behalf of “all middle school students” must be dismissed for lack of standing (see Appeal of G.G., 59 Ed Dept Rep, Decision No. 17,751).  While petitioner has standing to bring this appeal on the student’s behalf, as the student’s parent, she lacks standing to assert the rights of others (Appeal of D.A.C., 55 Ed Dept Rep, Decision No. 16,795; Appeal of Walker, et al., 53 id., Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030).  Therefore, the appeal must be dismissed as to the claims asserted on behalf of “all students” in respondent’s middle schools.

Turning to the merits, boards of education have broad authority “[t]o prescribe the course of study by which pupils of the schools shall be graded and classified” (Education Law §§ 1709 [3]; 2554 [1]; 2590-h [17]).  Student grading policies and practices lie within this broad discretion and will only be set aside where they are arbitrary or capricious (Appeal of T.M. and A.M., 45 Ed Dept Rep 276, Decision No. 15,321; Appeal of M.D. and I.D., 41 id. 184, Decision No. 14,658; Appeal of R.W., 40 id. 671, Decision No. 14,580).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

On this record, petitioner has not established that respondent’s spring 2020 grading policy was clearly arbitrary or capricious.  Although petitioner objects to this policy on the ground that it “is completely unfair to students who have worked hard all year and every year,” I note that the policy had no effect on the numerical grades that the student earned for the first three marking periods of the 2019-2020 school year, which appear on the student’s report card along with comments from the student’s teachers indicating that she “exceed[ed] standards.”  Moreover, with respect to petitioner’s concerns about the impact of the spring 2020 grading policy on the student’s ability to gain admission to one of respondent’s competitive high schools, I take administrative notice of the fact that respondent has amended the criteria “used to evaluate students entering high school in fall 2021, for admissions to screened high school programs,” to account for the 2020 grading policy (Selection Criteria for Screened Admissions, available at [last accessed April 2, 2021]).  Specifically, respondent has provided that, with respect to the 2019-2020 school year, only “marking period grades ... that a student received through the end of February 2020, when school became fully remote for all ... students,” will be considered, since “2019-2020 final course grades and state test scores are not available ... due to the impact of COVID-19” (id.). 

Thus, while I appreciate petitioner’s concerns, I find that they are insufficient to invalidate the spring 2020 grading policy.  Instead, the record reflects that the spring 2020 grading policy was a reasonable exercise of respondent’s discretion in response to the COVID-19 pandemic.  Respondent submits a May 1, 2020 press release announcing the policy, in which respondent’s Chancellor explained that the policy would “creat[e] a consistent, equitable system across all schools” and that respondent’s priority in implementing the policy was to “minimize stress on families and students, while still providing next year’s teachers with the information they need about an individual student’s progress toward achieving standards.”  Additionally, the record indicates that respondent adopted the 2020 grading policy after receiving the input of “teachers, students, and parents from across [New York] City.”

While I understand petitioner’s concerns, the COVID-19 pandemic has demanded many adjustments, adaptations, and sacrifices.  In light thereof, on this record I cannot find that respondent’s adoption of the spring 2020 policy was arbitrary or capricious.