Decision No. 14,246

(November 12, 1999)

MILLS, Commissioner.--Petitioners appeal the refusal of the Board of Education of the Herricks Union Free School District ("respondent") to change their son's first quarter grade in physical education. The appeal must be dismissed.

In the fall of 1997, petitioners' son, Theodore, was an eighth grade student at respondent's Herricks Middle School. His physical education teacher, Linda Foerderer, sent an "Interim Report" to petitioners, dated October 21, 1997 listing a number of problems with Theodore's progress in that class, including his attitude, behavior, use of class time and failure to follow instructions. In mid-November, Theodore received an "F" grade on his first-quarter report card in physical education. Subsequently, Theodore received passing grades in the course and received a final passing grade for the 1997-98 school year.

Respondent submitted an affidavit from Ms. Foerderer, as well as its "Herricks Middle School Physical Education Rules and Regulations" which Ms. Foerderer indicates that she distributes to all of her students at the beginning of each school year. The policy states that a student must arrive on time, dress properly and actively participate in class, on all but four occasions each marking period, to pass physical education. It further states that a student will not pass physical education for the marking period if he/she accumulates four zeros within that marking period. Zeros are given for being unprepared, failing a written test, not actively participating in class, not participating in the activities as directed by the teacher, being a discipline problem in class and being late to class twice. Petitioners unsuccessfully appealed Theodore's grade to the principal, superintendent and respondent. This appeal ensued.

Petitioners contend that Theodore was improperly assigned a failing grade because of minor disciplinary infractions. They maintain that the grade is arbitrary, capricious and illegal.

Respondent contends that Theodore received a failing first quarter grade because he was unprepared on two occasions, late for class on two occasions and failed to actively participate in class on four occasions. Specifically, Ms. Foerderer states that Theodore was not dressed and ready for class on October 6, 1997 and November 6, 1997, and was late for class on September 22, 1997 and October 31, 1997. She further states that Theodore failed to actively participate in class, in accordance with her instructions, on four separate occasions. On one occasion in October, Theodore repeatedly shot basketballs at the basket from a distance of 50 feet despite instruction from Ms. Foerderer to move closer to the basket. On another occasion in October Theodore threw orange cones that were being used in class. On yet another occasion in October Theodore, despite Ms. Foerderer's directions to the contrary, picked up archery equipment and simulated shooting the bow. The last occasion listed for not actively participating is the November 6^th incident when he was late for class as noted above.

Initially, I must address a procedural issue. Petitioners introduced new issues and an exhibit in their reply, including a challenge to respondent's physical education rules and regulations. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to procedural defenses or new material contained in an answer (Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,965; Appeal of Corbett, 34 id. 138, Decision No. 13,261; Appeal of Post, 33 id. 151, Decision No. 13,006). A reply is not meant to buttress allegations contained in the petition or add assertions or exhibits that should have been part of the petition (Appeal of John W. and Lorraine W., supra; Appeal of Corbett, supra; Appeal of Post,supra). Accordingly, while I have examined petitioners' submissions, I have not considered those portions of the reply that constitute new allegations or evidence which are not responsive to new material or affirmative defenses set forth in the answer.

On the merits, I will not substitute my judgment for that of school officials with regard to the determination of a student’s grade absent a clear showing that that determination was arbitrary, capricious or unreasonable (Appeal of Megan M., 38 Ed Dept Rep 807, Decision No. 14,149; Appeal John W. and Lorraine W., supra; Appeal of Hickey, 32 id. 12, Decision No. 12,741). However, a board of education may not discipline a student by lowering the student's grades (Appeal of MacWhinnie, 20 Ed Dept Rep 145, Decision No. 10,355).

On the record before me, I do not find a basis for substituting my judgment for that of respondent. Theodore was unprepared for class on two occasions, which resulted in two zeroes. Although petitioners characterize the remaining three incidents as minor disciplinary incidents, it appears that they could also be considered as failing to participate in accordance with the teacher's instructions. Under respondent's policy, Theodore failed to participate in class as directed by his teacher. Accordingly, I find that Theodore's actions were related to his academic performance so that the grade received was not arbitrary or capricious.

Respondent should note that, to the extent its policy penalizes students with zero grades for being late to class, that policy is invalid (Appeal of Gibbons, 22 Ed Dept Rep 134, Decision No. 10,908; Appeal of MacWhinnie, 20 id. 145, Decision No. 10,355).

THE APPEAL IS DISMISSED.

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