Decision No. 13,410

(May 8, 1995)

Harris, Beach & Wilcox, Esqs., attorneys for respondent, Alfred L. Streppa, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Seneca Falls Central School District ("respondent") to rescind its policy regarding class participation. The appeal must be dismissed.

On August 30, 1993, respondent adopted a new policy and regulation regarding class participation and attendance. The policy and regulation provide that building principals and teachers may develop and adopt, subject to the superintendent's approval, procedures concerning class participation and attendance. The regulation provides, among other things, that any such procedures shall set class participation, at a minimum, at ten percent of the mark earned during a marking period. The regulation further provides that the teacher must identify exactly what activities will not constitute class participation and also indicate those class activities which, by their very nature, cannot be made up by the student if the student is absent from class.

Petitioner's daughter, Julie, was an eleventh grade student at respondent's high school during the 1993-94 school year. Between November 28 and December 2, 1993, Julie was absent from school while attending the New York State School Music Association Winter Conference as a member of the All-State Women's Choir. Petitioner, fearing that these absences would affect Julie's grades, asked respondent to rescind or suspend its class participation policy. At a special meeting held on December 6, 1993, respondent advised petitioner that it would give his request further consideration and would act upon a recommendation prior to the end of the second marking period.

Petitioner commenced this appeal and requested a stay of respondent's policy and regulation. On January 28, 1994, I denied that request.

Petitioner contends that respondent's policy and regulation allows teachers to establish classroom participation activities which cannot be made up if a student is absent. Petitioner further contends that when a student is absent from a class which contains required classroom participation activities, the student's grade is automatically lowered. Petitioner asks that I direct respondent to suspend or rescind its class participation policy and regulation. Petitioner also requests that I order respondent to allow Julie to make up any and all work, including class participation, that she may have missed since the beginning of the 1993-94 school year and that her grades be adjusted accordingly.

Respondent contends that the appeal must be dismissed because Julie has not suffered any harm, that the relief requested cannot be granted, and that the appeal is premature. Respondent also maintains that its policy is neither arbitrary, capricious nor unreasonable.

Before reaching the merits, I must first address two procedural issues. Respondent argues that the appeal must be dismissed as premature. In this regard, respondent contends that it never made a final decision on petitioner's request. The record indicates that respondent advised petitioner on December 6, 1993 that it would give his request further consideration and would act upon a recommendation prior to the end of the second marking period. There is nothing in the record, however, that indicates whether respondent did, in fact, take such action. Accordingly, I will not dismiss the appeal as premature.

Respondent also infers that the appeal is moot because the administration is considering adopting a revised policy and regulation. There is no evidence in the record, however, to indicate that respondent actually adopted a revised policy and regulation. Therefore, the appeal is not moot.

The appeal, however, must be dismissed for lack of standing. It is well settled that an individual may not maintain an appeal pursuant to Education Law '310 unless he is aggrieved in the sense he has suffered personal damage or injury to his rights (Appeal of Ulcena, 33 Ed Dept Rep 328). In this instance, the petition is devoid of any allegation establishing injury to Julie by the application of respondent's policy or regulation. In fact, the record shows that Julie did not receive any grade or point reduction as a result of the absences alleged in the petition. Accordingly, the petition must be dismissed.

Even if this appeal were not dismissed on procedural grounds, it would still warrant dismissal on the merits. Grading policies and practices are matters in which local school authorities have considerable discretion (Education Law ''1709[3] and 1804[1]; Appeal of Schure, 34 Ed Dept Rep 281; Matter of Ravnitzky, 18 id. 83). The Commissioner of Education will not ordinarily substitute his judgment for that of a board of education with regard to a student's grade absent a clear showing that the board's decision was arbitrary, capricious or unreasonable (Matter of Caskey, et al., 21 Ed Dept Rep 138; Matter of MacWhinnie, 20 id. 145).

Upon review of the record, I find respondent's policy to be reasonable. The record indicates that a student's absence does not automatically result in a grade reduction. Rather, the class participation portion of a student's grade is based on the student's level of participation during the entire marking period. Moreover, classroom participation is logically related to a student's performance and properly reflected in a pupil's final grade (Appeal of Shannon, et al., 26 Ed Dept Rep 218). Therefore, I find respondent's policy, which factors classroom participation into a student's grade, to be reasonable.

When a student challenges a final grade, he or she bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Timbs, 29 Ed Dept Rep 392). Based on the record before me, I find no evidence that respondent abused its discretion in assigning grades to Julie. Accordingly, there is no basis to substitute my judgment for that of respondent.

I have considered the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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