(August 30, 1999)

MILLS, Commissioner--.Petitioner challenges respondent’s decision to deny her course credit due to excessive absences. The appeal must be sustained in part.

During the 1995-96 school year, petitioner was a senior at the Wayland-Cohocton High School. At that time, the Board of Education of the Wayland-Cohocton Central School District ("respondent") had a minimum attendance policy. Under that policy, if a student was absent from class more than 24 times in a full year course or 12 times in a semester course, he or she would be denied credit for the course. Respondent’s policy further provided that an absence due to participation in a school sponsored activity would be treated as an extension of the student’s classroom activity.

On May 7, 1996, petitioner was notified that she had 25 absences from her English 12R class and would be denied credit for the course. The form notice, entitled "High School Course Attendance", outlined respondent’s attendance policy and informed petitioner that if she or her parents disagreed that she had exceeded the permissible number of absences, they should direct a written request for a hearing to the administration within five school days of receipt of the notice. As of the date of the notice, petitioner had achieved a passing grade in the course for each of the first three quarters of the school year.

After receiving the May 7, 1996 notice, petitioner and her mother tried to speak to school officials about the decision to deny petitioner course credit. Petitioner’s mother met with the high school principal shortly after May 7, 1996, and asked the district to make an exception to its policy for petitioner because she had experienced personal problems during the school year. Petitioner’s mother also met with petitioner’s guidance counselor on several occasions between May 15, 1996 and June 5, 1996, and requested copies of the teacher’s attendance records. During this period, petitioner continued to audit the class until June 12, 1996, when her English teacher, Mr. Molyneux, informed her that she would not be permitted to sit for the final exam scheduled for June 14, 1996. After failing to obtain any satisfaction from the principal or petitioner’s guidance counselor, petitioner’s mother pled her case to respondent during the public comment portion of its regularly scheduled board meeting on June 17, 1996. Respondent did not take any formal action on petitioner’s plea, but instead, advised petitioner’s mother to raise the matter with the district’s administration.

The following day, petitioner’s mother spoke to respondent’s superintendent, who indicated that a review of petitioner’s attendance records confirmed that she had exceeded the maximum number of absences permitted under respondent’s attendance policy. Petitioner’s mother again asked to review the teacher’s attendance records. On June 18, 1996, petitioner’s parents retained a lawyer to assist them in this matter. The following day, respondent sent the teacher’s attendance records to petitioner’s attorney by facsimile. In a final effort to resolve the matter, petitioner’s lawyer contacted the principal on June 20, 1996 and petitioner’s mother contacted the superintendent the following day. Both efforts were unsuccessful. This appeal ensued.

Petitioner contends that she had less than 25 absences from class and that the decision to deny her course credit was arbitrary and capricious. In addition, petitioner contends that respondent’s policy is "unjust" because it did not afford her the opportunity to make up time missed from school. For relief, petitioner requests that I find respondent’s denial of credit to be arbitrary and capricious, and direct respondent to amend its policy to require respondent to allow students the opportunity to make up missed time. Petitioner also requests that I order respondent to reimburse her for the tuition costs for Freshman English as well as "any and all legal fees" associated with the appeal.

Respondent opposes the relief sought by petitioner and maintains that the appeal should be dismissed as untimely and for failure to exhaust administrative remedies.

Turning first to respondent’s exhaustion defense, respondent’s policy requires an appeal if the student or parent disagrees that the student has exceeded the allowed number of absences stated in the notice. Accordingly, to the extent petitioner seeks to challenge the number of days she was recorded absent, she was required to follow this procedure. Respondent’s May 7, 1996 notification, however, did not specify an appeal procedure to challenge the policy itself or seek an exemption from it. Accordingly, to the extent petitioner seeks to challenge the policy itself, or respondent’s failure to exempt her from it, petitioner’s claim is properly before me.

Further, I find the appeal is timely. An appeal to the Commissioner must be instituted within thirty days from the making of the decision or performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Although petitioner was initially notified on May 7, 1996 that she would not be given credit for the course, the record reflects that petitioner and her mother promptly attempted to resolve their concerns at the local level by speaking first to the principal during the week of May 13, 1996, then to respondent at its regularly scheduled board meeting on June 17, 1996, and finally with the superintendent on June 18 and 21, 1996, after respondent referred petitioner’s mother to the administration. The superintendent indicated on June 18 and 21, 1996 that the district would not alter the May 7, 1996 decision. Petitioner instituted this appeal on July 19, 1996.

It is not clear whether respondent’s policy permitted petitioner to institute a local appeal challenging the policy itself or seeking an exemption from it. In any event, it is apparent petitioner sought recourse at the local level and was in fact referred by respondent to the administration. Under these circumstances, I find that the interests of justice would not be served by dismissing the appeal as untimely (see, Appeal of Price, 38 Ed Dept Rep 745, Decision No. 14,132; Appeal of Ponte, 38 id. 280, Decision No. 14,033; Appeal of Loughlin, 35 id. 432, Decision No. 13,591).

Before addressing the merits, I must address one final procedural matter. By letter dated March 20, 1998 petitioner submitted an unverified "amended petition" in which she points out that I invalidated respondent’s attendance policy in Appeal of Pasquale, 36 Ed Dept Rep 290, Decision No. 13,727, presents additional information in support of her appeal, and requests certain relief not included in her petition. By letter dated March 27, 1998, respondent objects to petitioner’s submission, contending, among other things, that the Commissioner’s regulations do not permit an amended petition, and that the pleading does not conform to "275.11 of the Commissioner’s regulations. Respondent further claims that it is untimely. Section 275.5 of the Commissioner’s regulations requires that all pleadings be verified (Appeal of Moravia Teachers’ Association, 36 Ed Dept Rep 413, Decision No. 13,764). Because petitioner’s "amended petition" is unverified, I reject it on that basis, and decline to address respondent’s remaining claims regarding this submission.

A board of education may adopt a policy requiring a minimum attendance for students to receive academic credit (Appeal of Pasquale, supra; Appeal of Hansen, 34 Ed Dept Rep 235, Decision No. 13,292; Appeal of Ackert, 30 id. 31, Decision No. 12,383). However, such attendance policy may not distinguish between excused and unexcused absences for the purposes of imposing the academic sanction of the denial of course credit (Appeal of Pasquale, supra; Appeal of Hansen, supra). In determining a student’s attendance grade, it is irrelevant whether a student’s absence on any particular day is excused or not because, in either case, the student missed the opportunity for classroom participation (Appeal of Pasquale, supra; Appeal of Shepard, 31 Ed Dept Rep 315, Decision No. 12,651).

In Appeal of Pasquale, supra, the petitioner, a student in respondent’s district, challenged the same policy challenged by petitioner here. In that case, I invalidated the policy because I found that it impermissibly distinguished between excused and unexcused absences by excusing absences due to participation in a school sponsored activity. I ordered the district to modify its attendance and make-up policies in accordance with my decision. In light of my holding in Appeal of Pasquale, supra, I find that respondent’s decision in this case to deny petitioner academic credit, based on a policy I have since invalidated, is arbitrary and capricious.

Finally, it is well settled that the Commissioner of Education lacks authority to award damages, costs or attorney’s fees (Appeal of Jenkins, 36 Ed Dept Rep 497, Decision No. 13,784; Appeal of Totolis et al., 36 Ed Dept Rep 476, Decision No. 13,779). Accordingly, to the extent petitioner seeks an award of damages, costs or attorney’s fees, the petition is dismissed.

In light of this disposition, I will not address the parties’ remaining contentions.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent credit petitioner for all work completed in English 12R during the fourth quarter of the 1996-97 school year and calculate a fourth quarter grade; and

IT IS FURTHER ORDERED that respondent calculate a final grade for English 12R by averaging petitioner's quarterly and mid-term grades; and

IT IS FURTHER ORDERED that respondent grant petitioner credit for English 12R if petitioner receives a passing grade as calculated above, and, if petitioner is, with the addition of those credits previously denied, entitled to a high school diploma, respondent is directed to award the appropriate diploma forthwith.

END OF FILE

---