Decision No. 12,664

(March 13, 1992)

Gregory J. Guercio, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner, a high school social studies teacher employed by respondent, appeals from respondent's actions concerning the grading of mid-year examinations. The appeal must be sustained in part.

In January 1990, mid-year examinations in Global Studies 10B and United States History and Government 11B were administered to students attending respondent's Plainview-Old Bethpage High School. The Global Studies 10B examination was developed by petitioner and another teacher, both of whom taught such course during the 1989-90 school year. The U.S. History and Government 11B examination was developed by petitioner and the department chairman, both of whom taught such course during the 1989-90 school year. Each teacher then graded his or her own students' examination papers. Petitioner alleges that, at her request, examination papers were exchanged and the social studies teachers then reviewed each other's papers.

After reviewing her colleagues' papers, petitioner informed them that, in her belief, they had erroneously given credit for incorrect and incomplete answers and she requested that they adjust the examination grades accordingly. Petitioner also sought the building principal's assistance to have the grades changed before they were announced. After discussing the matter with the department chairperson, the principal refused to comply with petitioner's request and authorized release of the grades.

Petitioner appealed to the assistant superintendent of schools for instruction. Petitioner alleges that while her appeal was pending, the building principal and department chairperson circulated a letter dated March 1, 1990 which falsely indicated that the State Education Department (the "Department") had reviewed respondent's June 1989 Global Studies Regents Examination papers and had made no changes on those papers, and which commended teachers for their rating of the papers. Petitioner alleges that she contacted the Department and was informed by the Bureau of Educational Testing that such examination papers were not reviewed by the Department, and were not even submitted. Petitioner further alleges that, during this time, the principal knowingly and maliciously made false statements and negative remarks concerning petitioner and her attempts to change the grades. Petitioner alleges that her end-of-year evaluation contained slanderous and otherwise negative statements relating to her attempt to have the mid-term grades changed.

On March 9, 1990, petitioner received a decision of the assistant superintendent denying her appeal. Petitioner appealed to the superintendent of schools in a letter dated April 4, 1990. In a letter dated May 10, 1990, the superintendent upheld the assistant superintendent's decision. Petitioner then asked the superintendent to reconsider, and the superintendent responded by letter dated October 13, 1990, that he found no merit to petitioner's contention that the mid-year examination grades should be changed. Petitioner alleges that the superintendent's letter contained slanderous statements concerning petitioner's professional performance. Petitioner then appealed to respondent board of education and, in a letter dated November 27, 1990, the board of education denied petitioner's appeal.

In the present appeal, petitioner contends that the principal of the Plainview-Old Bethpage High School is unfit for office and that his actions warrant "the severest punishment by the Commissioner of Education." Petitioner requests that I impose "punishment commensurate with their malfeasance" with respect to the assistant superintendent for instruction, the superintendent of schools and respondent board of education; that I order the retraction of, and apology for, what petitioner characterizes as "libels" to which she has been subjected and that I order the removal of certain statements in her end-of-year evaluation; that I order letters to be sent to all social studies teachers in the high school and other individuals specifying "the truth of what has occurred from the time of the January 1990 Mid-Years, to date"; that I order the removal of what petitioner alleges are false commendations sent to Global Studies teachers and that new letters be written to petitioner and another teacher concerning a favorable review by the Department of their U.S. History and Government Regents papers for June 1989; that I order the Board of Education to mandate that State Education Department guidelines are the criteria for grading social studies essays; and that I order respondent and all administrators to maintain academic standards.

Respondent generally denies petitioner's allegations and alleges that the mid-term examinations were properly graded. Respondent contends that the appeal should be dismissed for failure to join the other social studies teacher referred to by petitioner, the department chairperson, the principal, the assistant superintendent and the superintendent of schools as necessary parties. Respondent further contends that insofar as petitioner seeks the discipline of tenured employees, the Commissioner of Education lacks subject matter jurisdiction since such discipline may only be imposed pursuant to Education Law '3020-a. In addition, respondent contends that the Commissioner of Education lacks jurisdiction to adjudicate petitioner's allegations of libel. Respondent also contends that the petition must be dismissed for failure to state a cause of action. Respondent contends that I am without authority to substitute my judgment for that of respondent with regard to the evaluation of its teaching personnel. Finally, respondent contends that the responsibility for the grading of local examinations lies exclusively within its jurisdiction pursuant to Education Law '1709.

Petitioner contends that her petition is directed against the principal of Plainview-Old Bethpage High School, the former Assistant Superintendent for Instruction, the Superintendent of Schools and respondent board of education. 8 NYCRR '275.8 requires that a copy of the petition be personally served upon each named respondent. However, the record indicates that service was made only upon respondent board of education. Therefore, to the extent the petition requests that I take action against any individuals other than respondent board of education, such claims must be dismissed for failure to properly name and join such individuals as parties to this appeal by serving the petition upon them (Appeal of Healy, 29 Ed Dept Rep 391; Appeal of Giglia, et al., 27 id 453).

Respondent board of education contends that the entire appeal must be dismissed for failure to join these individuals as necessary parties. Respondent's contention has no merit. Decisions concerning curriculum and grading are ultimately the responsibility of the board of education pursuant to Education Law '1709(3), and a board may review its employees' classroom policies and decisions regarding grading (Matter of Falcigno, 22 Ed Dept Rep 599). Petitioner may seek review of the board of education's action in refusing to change the grades or grading policies of its employees, and joinder of the superintendent of schools and school administrations as parties is not necessary to permit me to review the board's decision.

Respondent's contention that I have no subject matter jurisdiction to review any grading decision or grading policy by a board of education is also without merit. Education Law '310 confers broad authority upon the Commissioner to review any official act or decision of local school authorities, including grading decisions.

The Commissioner of Education will not substitute his judgment for that of a board of education with regard to the determination of students' grades absent a clear showing that the board's determination was arbitrary, capricious or unreasonable (Appeal of Timbs, 29 Ed Dept Rep 392; Appeal of Richardson, 29 id. 70). Petitioner has provided documentation setting forth examination questions, answers and credit given for the mid-year examinations at issue. Such documentation establishes that, in several instances, full credit was given for incorrect or incomplete answers and partial credit was given for incomplete answers. Respondent acknowledges that full credit was given for incorrect or incomplete answers but alleges that the examination papers from which the questions and answers were chosen by petitioner had already received very low scores and the teacher who graded those papers did not wish to destroy the self-confidence of the students receiving such scores by further lowering their scores. Respondent contends that it would serve no proper educational purpose to lower the grades of such students.

An examination grade should measure the level of achievement of a student in a particular subject. To the extent that partial credit was awarded for incomplete answers, I am not persuaded by the record before me that such actions were so arbitrary, capricious or unreasonable as to warrant substitution of my judgment for that of the board of education. However, it appears from the record that there are numerous instances in which full credit was arbitrarily given for obviously incorrect or incomplete answers. Respondent's attempt to justify the award of full credit as a means of preventing the demoralization of students by further lowering already low grades is not supported by the record. The record indicates that in several instances full credit was awarded to students who answered incorrectly and had received passing scores. Furthermore, in view of the stated purpose of an examination to measure student achievement, it is improper to arbitrarily award full credit to certain students on the basis of their already low scores. This is not to suggest, of course, that in determining a quarterly or final grade, credit may not be given for such matters as class participation or student effort. While petitioner does not seek adjustment of the examination grades, I admonish respondent to maintain academic standards consistent with this decision in the grading of future examinations.

Petitioner also requests that I order a public retraction of, and apology by, respondent for certain statements concerning petitioner which were made by the principal and superintendent of schools in several letters to petitioner and in petitioner's end-of-year evaluation. It is both the right and duty of school district supervisory personnel to make written comments evaluating the performance of district employees (Appeal of O'Connor, 29 Ed Dept Rep 48). Critical evaluations do not rise to the level of disciplinary reprimand invoking the procedural protections of Education Law '3020-a, when the purpose of such evaluations is to warn or instruct, but not to punish (Appeal of O'Connor, supra; Holt v Board of Educ. of Webutuck Central School Dist., 52 NY2d 625). Nevertheless, should a board of education engage in an abusive practice involving critical evaluations, the Commissioner of Education is authorized to review such practice pursuant to Education Law '310 (Holt v Board of Educ., supra, at p. 634).

Petitioner seeks retraction of the principal's February 1, 1990 statement:

A similar comment is made in the principal's March 9, 1990 letter where he indicates "It is discouraging to your colleagues to have their good work questioned and doubted." Similar comments about petitioner's failure to work cooperatively with her colleagues were also included in her September 10, 1990 end-of-year evaluation. These written comments, while obviously critical, do not rise to the level of disciplinary reprimands and I find no basis for ordering their retraction. However, since petitioner was correct in her accusation that full credit was improperly given for incorrect or incomplete answers on the mid-term examinations, as a corrective measure, I will order that a copy of this decision be placed in petitioner's permanent file.

The statements in the superintendent's May 10, 1990 and October 15, 1990 letters to petitioner and the June 22, 1990 end-of-year evaluation, to which petitioner also objects, involve allegations that petitioner improperly obtained her colleagues' mid-term examination papers. Petitioner alleges that the exchange of papers was voluntary. However, the record is unclear as to how the papers came to be exchanged. While the petitioner proffers a February 1, 1990 letter of the principal indicating that "[t]he exchange of papers was done voluntarily", respondent's superintendent, in a sworn affidavit, indicates that he subsequently learned that his statement was not true. Petitioner has the burden of establishing facts sufficient to entitle her to the relief requested (Appeal of Vitek, 26 Ed Dept Rep 345). Upon the record before me, I find that petitioner has failed to establish that the statements commencing the exchange of papers, to which she objects, are inaccurate or otherwise merit corrective action.

I have reviewed petitioner's remaining contentions and find that they have no merit.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent maintain academic standards consistent with this decision in the grading of future examinations and;

IT IS FURTHER ORDERED that respondent place a copy of this decision in petitioner's permanent personnel file.

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