Decision No. 13,090

(January 6, 1994)

SHELDON, Acting Commissioner.--Petitioner challenges respondent's attendance policy, together with her son's failing grade in math and the principal's decision to deny him credit for the course. The appeal must be sustained.

Respondent's attendance policy, entitled "Disciplinary Measures for Unexcused Absence from Class", provides, in pertinent part:

At the beginning of his sophomore year at the E.J. Wilson High School, petitioner's son, Brian, was placed in Math II L, even though he had not taken the prerequisite Math I L. Realizing the error, respondent offered to tutor Brian twice a week. By early November, however, respondent dropped Brian from Math II L and instead enrolled him in Math I L. Rather than send Brian out of the building for the course, because it was unavailable in his building, respondent arranged to tutor Brian during eighth period. In December, Brian's parents received a positive progress report. Brian's quarterly grades for Math I L were E, B, B+. Nonetheless, his final report card listed his grades in Math I L as "F" for the first quarter, "F" for the second quarter, "B+" for the third quarter and "WTF" (withdraw/failing) for the fourth quarter and final average. His final report card also lists a first quarter grade of "F" and a final average of "WTF" for Math II L, even though respondent had dropped Brian from the class.

The record reflects that in May 1992, Brian was marked absent three times, without excuse, from his Math I L class. On May 12, 1992, Brian was marked as "cutting" his 8th period Math I L tutoring session while he attended a school assembly. Consequently, he served detention on May 15 and May 18, 1992. On May 13, 1992, Brian did not attend his Math I L tutoring session and was assigned in-school suspension to be served on May 14, 1992. On May 22, 1992, Brian's math tutor referred him to an administrator for his "uncooperative attitude." The assistant principal referred the matter to the principal for a hearing. Thereafter, on or about May 27, 1992, petitioner was advised, in writing, that her son's 8th period Math tutoring session was considered a regular class, subject to the same rules as his other classes. Petitioner was further informed that pursuant to respondent's attendance policy, a third "cut" in Math I would result in his being dropped from the class.

Brian took his final exam in Math I L on June 11 and 12, 1992 even though he had not taken the fourth quarter exam. He was scheduled for additional instruction on June 15, and 16, 1992. On June 15, 1992, Brian's math tutor informed him that even though he had failed his final exam, he could still pass Math I L if he scored well on the fourth quarter exam.

When told that he had failed his final examination, Brian asked to see his counselor. His request was denied and instead he was offered the option of going to a study hall. When Brian went to see his counselor anyway, he received a third unexcused absence. On June 16, 1992, petitioner was notified that pursuant to the board's attendance policy, Brian was being dropped from the course, denied credit and would not be given an opportunity to take his fourth quarter exam. This appeal followed.

Subsequent to the filing of this appeal, respondent agreed to allow Brian to take his fourth quarter Math examination. Petitioner now seeks to have her son's record expunged of any reference to his enrollment and grades in Math II L. Additionally, petitioner seeks to have respondent's attendance policy declared invalid because it improperly distinguishes between excused and unexcused absences. Petitioner also challenges respondent's policy on the ground that it imposes an academic sanction (i.e, denial of course credit) as a disciplinary measure. Furthermore, petitioner asserts that respondent circumvented its obligation to hold a hearing pursuant to Education Law '3214 by removing her son from class without appropriate due process. Finally, petitioner asserts that her son, having been punished by detentions and in-school suspensions, cannot be further penalized for "cutting" by also denying him course credit.

Respondent has declined to file an answer in this appeal. Accordingly, respondent is in default and the allegations set forth in the petition will be deemed true (8 NYCRR '275.11; Appeal of Matis, 32 Ed Dept Rep 198; Appeal of Rowe, et al., 31 id. 280).

Petitioner's request that any record of her son's placement in Math II L be expunged, is granted. The record indicates that Brian's placement in the Math II class was due to respondent's error. Although respondent ultimately moved Brian to the proper class, there is no basis for recording a failing grade in a course where the student was enrolled as a result of the school district's error. In addition, Brian's final report card must be modified to reflect the grades he actually earned in the first three quarters of Math I L.

Petitioner correctly describes as improper respondent's policy which distinguishes between excused and unexcused absences and automatically denies a student credit regardless of the grade actually earned. A board of education may establish minimum attendance requirements to obtain credit (Appeal of Hegarty, 31 Ed Dept Rep 232; Appeal of Ackert, 30 id. 31). Although an attendance policy that factors classroom attendance into a student's grade is appropriate (Appeal of Hegarty, supra; Matter of Burns, 29 Ed Dept Rep 103; Appeal of Dickershaid, 26 id. 111), one that distinguishes between excused and unexcused absences improperly imposes academic sanctions as a means of discipline. Since student grades must reflect academic achievement, there is no valid basis for lowering a student's grade or denying credit for unexcused absences only (Appeal of Hegarty, supra; Appeal of Dickershaid, supra; Matter of Shamon, 22 Ed Dept Rep 428). Given the distinction between excused and unexcused absences in respondent's attendance policy, it is invalid.

Furthermore, the record reflects that respondent offered this student a study hall in lieu of class on June 15, 1992. Since a study hall does not constitute alternative education, Brian's failure to attend cannot be considered in the calculation of his absences from Math I L (Appeal of Ackert, 30 Ed Dept Rep 31; Matter of Malpica, 20 Ed Dept Rep 365).

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent must expunge from this student's record any reference to his enrollment and grades for Math II L.

IT IS FURTHER ORDERED respondent grant petitioner's son credit for Math I L to the extent he earned a passing grade.

IT IS FURTHER ORDERED that respondent's attendance policy is void for the reasons stated herein.

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