Decision No. 12,768

(August 5, 1992)

Laurence K. Rubin, Esq., Corporation Counsel, attorney for respondent, David F. Mix, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals respondent's placement of her daughter for the 1991-1992 school year and certain other matters, including academic grading. The appeal must be sustained in part.

During the 1989-1990 school year, petitioner's daughter attended third grade at Public School 57. Tanya began the fourth grade at the same school, but on October 26, 1990, was transferred to Public School 40, where she completed the fourth grade in June 1991. At some time prior to August 23, 1991, when this appeal was commenced, petitioner's daughter was assigned to attend Campus West School for the 1991-1992 school year, a magnet school which apparently also houses a special education program. Petitioner objected to that placement, commenced this appeal, and sought a stay.

By a letter dated August 27, 1991, the district offered to place Tanya in the fifth grade at the Build Academy for the 1991-1992 school year, and on August 29 petitioner agreed to that placement. On September 6, I denied petitioner's stay request, which had become moot by virtue of the parties' agreement. Tanya has successfully completed the fifth grade at the Build Academy and will attend sixth grade at the same school in September.

As a result of the agreement of the parties, all claims in the petition with respect to Tanya's placement are deemed moot and will not be further discussed. The petition, however, sets forth some other claims which must be addressed. Petitioner claims certain inaccuracies exist in her daughter's academic records, and indeed that certain records have been "tampered with." She also suggests that her daughter may have been assigned to a special education program improperly and without her knowledge. Finally, she requests that I investigate the conduct of the academic programs at Public Schools 40 and 57, several members of the board of education, and the district administration.

Respondent denies the allegations and provides a copy of Tanya's cumulative record through the fourth grade.

The petition does not contain any credible evidence that Tanya was improperly assigned to a special education program, nor is there any apparent reason to grant petitioner's demand for an investigation. Petitioner has the burden of proof in such matters, and that burden has not been met in this instance. Appeal of Singh, 30 Ed Dept Rep 284.

With respect to petitioner's claims concerning Tanya's grades and records, I find no evidence of tampering. However, petitioner has pointed out a discrepancy between the grades recorded on Tanya's permanent cumulative record (attached to respondent's answer), and the grades recorded on a computerized report card for the marking period June 21, 1991, showing attendance as of June 28, 1991 (petitioner's Exhibit K). The permanent cumulative record shows the following grades: Reading 83, Spelling 94, Math 83, History/Social Studies 78, English 86, and Science 83. Petitioner's Exhibit K shows the following grades in the "Final Average" column: Reading 86, Spelling 96, Math 86, History/Social Studies 82, English 87, and Science 86. The record contains no explanation for these differences. While it is well established that grading by a district will not normally be set aside unless it is clearly arbitrary and capricious, it appears that in this case the district's own records are contradictory. Indeed, the grades on the cumulative record appear to match another computerized report card (petitioner's Exhibit G), bearing an attendance date as of May 13, 1991, which was presumably not the final report card.

As a result of the foregoing, the cumulative record of Tanya L. should be corrected to conform to the final grades shown in petitioner's Exhibit K.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that the permanent cumulative record of Tanya L. be corrected in conformity with this decision.

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