Appeal of T.A. and J.A, on behalf of their daughter C.A., from action of the Board of Education of the Oyster Bay–East Norwich Central School District regarding class ranking.

Decision No. 16,781

(June 24, 2015)

Law Office of Michael Markowitz, P.C., attorney for petitioners, Michael A. Markowitz, Esq. of counsel

Frazer & Feldman, LLP, attorneys for respondent, James H. Pyun, Esq. of counsel

BERLIN, Acting Commissioner.--Petitioners appeal the determination of the Board of Education of the Oyster Bay-East Norwich Central School District ("respondent" or "board") regarding their daughter's class rank.  The appeal must be dismissed.

Petitioners’ daughter, C.A. (the “student”), is a senior at Oyster Bay High School (“OB-HS”) in respondent’s district.  According to district policy #7223, entitled “Class Rank” (the “policy”), the valedictorian and salutatorian for each class are selected at the start of senior year, based on a calculation of the cumulative weighted grade point average (“GPA”) of each student in the class.  The policy further provides that, to be considered for such honors, a student must have been in attendance at OB-HS from the beginning of the second semester of their sophomore year.

GPAs are calculated at the beginning of senior year and are based on courses for which credit has been granted and for which a numerical grade has been given.  Courses are weighted according to difficulty, with Advanced Placement (“AP”) courses receiving greater weight than non-AP courses.  The weighted GPA calculation is also based on student performance (e.g., grades between 90-100 in AP courses are weighted .08 more than in Regents courses and .02 more than in college/honors courses; grades between 80-89 are weighted .07 more in AP courses than in Regents courses and .02 more than in college/honors courses).

At the beginning of the 2014-2015 school year – C.A.’s senior year – C.A.’s GPA was calculated and determined to be the second highest in her class.  Consequently, she was selected as the salutatorian of her class.

The OB-HS course description book sets forth the various courses offered in the high school, including AP courses.  According to the course description book, respondent’s social studies program offers students the following courses - Grade 9: Global History 1 or Pre-AP World History; Grade 10: Global History 2 or AP World History; Grade 11: United States History/Government (Regents) or AP United States History; Grade 12: Participation in Government Economics or AP Government Economics.  The course descriptions also set forth any prerequisites for a particular course.  In addition, respondent’s policy with regard to AP courses states that the district shall utilize a set of criteria to determine a student’s readiness for enrollment in AP classes.

After C.A.’s class rank was determined and she was designated class salutatorian, by letter dated October 6, 2014, petitioners complained to respondent.  Petitioners asserted that the student with the highest GPA in C.A.’s class – selected as valedictorian - had been allowed to take an AP class during his freshman year, leading to him ultimately being able to take more AP classes than C.A. during the relevant time period.  Petitioners argued that this violated district rules, that C.A.’s class rank was unfairly calculated as a result, and that she otherwise would have had the higher GPA as between the two.  Petitioners alternatively claimed that, had C.A. been afforded the same opportunity to take an AP class during her freshman year, she would have done so and, thus, she would have a higher weighted GPA than the other student, qualifying her as class valedictorian.

To rectify the alleged inequity, petitioners asked respondent to recalculate C.A.’s GPA, taking into account an AP social studies course that she is taking in her senior year.  In the alternative, petitioners asked that respondent designate C.A. as co-valedictorian. 

By letter dated October 10, 2014, respondent denied petitioners’ requests.  This appeal ensued.

In their petition, petitioners assert that respondent erred in refusing to recalculate C.A.’s GPA using all four high school years and including the AP social studies course she is taking in her senior year.  Petitioners claim that the valedictorian was unfairly advantaged by being allowed to take AP World History in ninth grade without satisfying the course prerequisite.  Petitioners assert that such opportunity was not afforded to C.A. or any other student.  They claim that, consequently, the valedictorian was able to complete more of the higher weighted AP courses by the beginning of senior year, when GPAs are calculated.  As relief, petitioners request that class rank in the district “be calculated using a weighted average from all four years of high school – not just ninth, tenth and eleventh grade ....”

Respondent asserts that the appeal must be dismissed for failure to join a necessary party.  Respondent contends that the petition fails to state a claim upon which relief can be granted and that petitioners have failed to establish that its determination of class rank is impermissible, arbitrary or irrational.  Respondent asserts that its method of calculating GPAs is proper and that petitioners have failed to establish any basis for requiring the district to base its calculation of GPAs and determination of class rank on all four years of high school. 

I must first address several procedural matters.  In response to the verified answer submitted by respondent, petitioners purport to submit an “Amended Petition and Reply” to which respondent objects.  The Amended Petition includes several new facts not pled in the petition which commenced this appeal.  There is no provision in Commissioner’s regulations authorizing an amended petition (Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647) (“Ransom”).  As noted in Ransom, “the appropriate remedy is to apply to submit the information under §276.5 [of the Commissioner’s regulations], pursuant to which the Commissioner may permit the service and filing of affidavits, exhibits and other supporting papers upon good cause shown.”  Here, petitioners have made no such application.  Thus, I will not consider the Amended Petition nor the new information contained therein.

With the respect to petitioners’ reply, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

As a final procedural matter, the appeal must be dismissed for failure to join a necessary party. A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, the student with the highest GPA, designated as valedictorian, was not named as a respondent or served with the notice of petition and petition.  As relief in this appeal, petitioners request a change to district policy requiring calculation of class rank using a weighted GPA from all four high school years, rather determining class rank at the beginning of senior year based on courses taken in ninth, tenth and eleventh grades.  According to petitioners, if respondent included C.A.’s grades from her senior year, as of the date of the petition she would be valedictorian of her class.  Consequently, were petitioners to prevail, the current designated valedictorian would be adversely affected.  As such, he is a necessary party to the appeal.

In their reply, petitioners attempt to circumvent the procedural defect by stating that they do not want the valedictorian removed but seek only the calculation of class rank at the end of senior year using all four high school years.  Petitioners argue that respondent’s policy addresses the selection of the valedictorian and salutatorian at the beginning of senior year but is silent as to the timing of the calculation of class rank.  Such argument is disingenuous and not supported by the record.  Respondent’s policy #7223 is entitled “Class Rank” and addresses the calculation of GPAs and subsequent selection of valedictorian and salutatorian.  Respondent states that it computes class rank in order to determine the class valedictorian and salutatorian.  Other than their conclusory statements, petitioners submit no persuasive evidence that respondent’s policy contemplates determining class rank at a later date and separate from the designation of valedictorian and salutatorian at the beginning of senior year.  Indeed, the petition clearly asserts that calculation of class rank using all four years of high school will result in C.A. being named valedictorian.  Thus, petitioners’ failure to join the student currently designated class valedictorian as a respondent herein warrants dismissal of the appeal (Appeal of Gordinier, 52 Ed Dept Rep, Decision No. 16,433; Appeal of Jobson, 47 id. 347, Decision No. 15,719; Appeal of Chesbrough, 32 id. 647, Decision No. 12,944; cf Appeal of Lynch, 42 id. 398, Decision No. 14,892; Appeal of Armello and MacIntyre, 40 id. 451, Decision No. 14,525).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  The determination of class rank is a decision for the local board of education that should not be altered unless it is arbitrary and irrational (Appeal of Gordinier, 52 Ed Dept Rep, Decision No. 16,433; Appeal of Gilewicz, 47 id. 493, Decision No. 15,764; Appeal of Jobson, 47 id. 347, Decision No. 15,719; Appeal of Lynch, 42 id. 398, Decision No. 14,892).  As long as the local policy in question is not wholly without rational basis, the Commissioner will not impose a different policy (Appeal of Gordinier, 52 Ed Dept Rep, Decision No. 16,433; Appeal of Gilewicz, 47 id. 493, Decision No. 15,764; Appeal of Lynch, 42 id. 398, Decision No. 14,892).  

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Here, pursuant to its long-standing policy, respondent calculates students’ GPAs, determines class rank and selects a valedictorian and salutatorian at the beginning of the senior year.  Although petitioners seek a change in the methodology to include all four years of high school, they set forth no allegation that the current policy is illegal, arbitrary or irrational.  Indeed, district policies that determine class rank based on less than four years of study have been upheld (see Appeal of Gilewicz, 47 Ed Dept Rep 493, Decision No. 15,764; Appeal of Jobson, 47 id. 347, Decision No. 15,719).  While petitioners may disagree with the timing of GPA and class rank determination, they have provided no evidence that the current policy is impermissible or irrational.  Petitioners’ motivation for seeking such change appears to be solely to rectify what they perceive to be an unfair result in this instance; such does not render the district’s current policy improper.

Moreover, to the extent that petitioners claim that the current valedictorian was improperly enrolled in an AP course in the ninth grade or that no other student could have enrolled in such course, they have also not met their burden.  Respondent asserts that the student received department permission to enroll in the course, per its course description handbook, as well as pursuant to a board of education’s general authority regarding student placement; that any other student, including C.A., could have requested the same; and that such request would have been considered.  Petitioners provide no evidence to refute respondent’s assertions.

On this record, I find that petitioners have failed to meet their burden of proof and have not established a clear legal right to the relief sought.  Thus, I am satisfied that the district’s method of determining class rank is reasonable and the resulting class rank neither arbitrary nor irrational.  I find no basis to substitute my judgment in this matter.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED

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