Decision No. 12,817

(September 30, 1992)

Martin J. Crowley, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals from the decision of the Board of Education of the Smithtown School District ("respondent") to issue his daughter a failing grade in Spanish 3X for the 1990-1991 school year. Petitioner's appeal is sustained in part.

Petitioner's daughter, Marnie J. Abraham, was enrolled in Spanish 3X for the 1990-1991 school year. She received a passing grade in her first quarter, failed each of the remaining quarters, and received a grade of 82 on her Regents Spanish Examination. Although the average of Ms. Abraham's quarterly grades and her Regents examination was a "D," Ms. Abraham's Spanish teacher issued her an "F" for her final grade. Petitioner appealed the teacher's determination to the principal, the superintendent, and ultimately to respondent. Each upheld the teacher's determination. The Board of Education by letter dated January 30, 1992, notified petitioner of its decision.

I will first address the procedural issue of timeliness raised by respondent. Respondent contends that the final grade at issue was known to petitioner in June 1991, and petitioner's commencement of the appeal in February 1992 was untimely. Section 275.16 of the Commissioner's Regulations provides that an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR '275.11). Respondent's assertion of a timeliness defense in the context of this case, however, borders on the frivolous. There is no question that Ms. Abraham received her final grade in June 1991. At that time, however, petitioner initiated an appeal with respondent. Indeed, according to the record, the principal's unwillingness to meet with petitioner during the summer delayed resolution of the grading issue until the subsequent school year. Respondent board of education did not render its final determination until January 30, 1992. Petitioner is appealing that determination, and accordingly, this appeal is timely (Appeal of Pelletier, 27 Ed Dept Rep 265; Appeal of Stickley, 25 id. 276). Respondent is quite right that the commencement of this appeal came many months after the initial grade determination, but respondent's acts, not petitioner's, prolonged the resolution of this issue. I urge respondent in the future to address grade disputes in a more timely fashion, particularly where, as here, the grade issued by respondent resulted in the denial of credit to the student.

The standard of review of a district's grade determination is clear. The Commissioner of Education will not substitute his judgment for that of a board of education, absent a clear showing that the board's determination was arbitrary, capricious or unreasonable (Appeal of Wilcox, 31 Ed Dept Rep 116; Appeal of Richardson, 29 id. 70).

Petitioner contends that respondent issued the failing grade to his daughter to punish her for admittedly excessive absences and that the grade does not properly reflect Ms. Abraham's educational achievements. Petitioner claims that Ms. Abraham's score of 82 on the Regents Examination indicates that a "C" more appropriately reflects his daughter's educational achievements, and accordingly, the failing grade should be changed to a "C."

Respondent, on the other hand, contends that it has not used its attendance policy improperly. Respondent alleges that Ms. Abraham's quarterly grades reflect failed examinations and missing assignments. In addition, respondent contends that the teacher's decision to override the average of the grades was consistent with respondent's grading policy. Respondent claims that a student's final grade is based on the active participation of the student, day to day activities of the class (lectures, field trips, work drills) and assignments satisfactory to the teacher. Accordingly, respondent contends that Ms. Abraham's repeated failure to complete course work and her lack of commitment to the course justifies the teacher's decision to issue an "F" and override the average of the grades. Respondent claims that this overall year end analysis of student performance is consistent with its policy. The record indicates that both parties agree that the average of Ms. Abraham's Spanish 3X quarterly grades and her Regents Examination score is a "D."

Although an attendance policy may not provide for the automatic loss of credit where a student has earned passing grades, a board of education may determine that classroom participation is a component of a student's grade (Appeal of Burns, 29 Ed Dept Rep 103). Accordingly, a teacher may take into account a student's failure to make up work missed due to an absence in determining a student's grade (Appeal of Hegarty, 31 Ed Dept Rep 232). Here, the record indicates that Ms. Abraham failed to submit numerous assignments. Her failure to do so is not excusable even if her failure was the result of being absent. Therefore, the teacher's

consideration of the missed work assignments in determining Ms. Abraham's quarterly grades was appropriate.

Respondent's efforts, however, to factor these missed assignments into Ms. Abraham's final grade and to make an overall assessment of Ms. Abraham's performance are not consistent with its own grading policy. Respondent in its papers relied on the Smithtown High School West Student Handbook for the proposition that a course's final examination shall be considered one fifth of the student's final grade. Upon request from my Office of Counsel, respondent submitted for my review a copy of the 1990-1991 Student Handbook. The Student Handbook goes on to state that "The final grade in a two-semester course is an average of grades for four ten-week marking periods plus a final examination" (at 5). Contrary to respondent's position articulated throughout its papers, respondent's policy with respect to a final grade provides only for a mathematical calculation based on quarterly grades and a final examination. Respondent's policy by its terms does not authorize respondent to look behind the numbers and conduct an overall evaluation of the student.

To the extent that respondent's grading policy accords weight to classroom participation, it would have been consistent with that policy to factor in classroom participation upon each quarterly marking period, which is why a student's grade based upon the average of these quarterly grades would still reflect classroom participation as a component of the final grade. To include an assessment of student participation again in a student's final grade would penalize the student twice for the same acts. The record indicates that missed assignments were factored into Ms. Abraham's quarterly grades, although the record is less clear as to how classroom participation was assessed on a quarterly basis. Accordingly, respondent's determination to override the average of Ms. Abraham's grades and factor in additional concerns was unreasonable in light of its written policy and the fact that certain of the factors had already been included in the quarterly grades.

Respondent's grading policy as set forth in the Student Handbook is itself reasonable and was wholly within respondent's discretion. Therefore, I will not substitute my judgment to accord a greater weight to the Regents examination as petitioner requests. Because both parties agree that the average of Ms. Abraham's grades was a "D," Ms. Abraham's records should be changed to record a "D" for Spanish 3X.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent modify the final grade in Spanish 3X for the 1990-1991 school year of Marnie J. Abraham from "F" to "D" and change its records forthwith to reflect this modification.

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