Appeal of J.J.-Q.L., on behalf of his daughter A.L., from action of the Board of Education of the North Colonie Central School District regarding grading.

Decision No. 17,562

(December 21, 2018)

Girvin & Ferlazzo, P.C., attorneys for respondent, Ryan P. Mullahy, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Colonie Central School District (“respondent” or “board”) to impose academic penalties upon his daughter A.L.  The appeal must be dismissed.  

During the 2015-2016 school year, A.L. was a junior in respondent’s high school and enrolled in respondent’s college-level physics course offered through respondent’s “University in the High School Program” in conjunction with the University at Albany College of Arts and Sciences (“UHS Physics”).  UHS Physics is overseen by respondent’s science supervisor, Keith Bogert, and taught by science teacher Weldon Culp.  According to respondent, at the beginning of the school year, Mr. Culp distributed to students in UHS Physics a packet of documents, including a document titled “UHS-Workshop Physics Objectives and Philosophy” (“Objectives and Philosophy”), and a course syllabus.  Mr. Culp also provided students with study and practice materials that he uploaded to respondent’s “Moodle page”[1] for UHS Physics, including study and practice materials for the 2015-2016 mid-term examination.  

According to respondent, UHS Physics is a full-year course, with a mid-term in January.  However, the University at Albany divides the UHS Physics course into two separate, one-semester courses of instruction, “Physics 105” and “Physics 106” with accompanying laboratory components.  Therefore, the UHS Physics mid-term is also the Physics 105 final examination.

According to Mr. Culp’s affidavit, during the 2014-2015 school year, he prepared a comprehensive UHS Physics mid-term examination (“2015 mid-term exam”), using a secure, subscription-based service called “Test Wizard,” through which he was able to access a secure database of thousands of proprietary exam questions relating to physics.  According to an affidavit submitted by Mr. Culp, over the course of several weeks, he selected certain questions from Test Wizard and put them into a specific order for the 2015 mid-term, and personally prepared the instructions.  To ensure the security of the 2015 mid-term exam, Mr. Culp saved it and the accompanying answer key in his personal electronic directory in “.pdf” format on his password-protected, district-issued laptop computer.  The files were also saved on the district’s secure network server in Mr. Culp’s personal directory.   Assessments given during Mr. Culp’s previous AP physics courses were also present in the secure folder and on the district’s secure network server.  According to Mr. Culp, the 2015 mid-term was not uploaded to the Moodle page for the UHS Physics course or otherwise made available to his students as a study aid.

According to Mr. Culp, given the difficulty and effort required to create a valid, fair assessment for UHS Physics, he determined, with Mr. Bogert’s approval, that the 2015 mid-term exam would be used again for the UHS Physics mid-term examination for the 2015-2016 school year (“2016 mid-term exam”).  

On or about January 28, 2016, a student informed Mr. Bogert that students from Mr. Culp’s 2015-2016 UHS Physics course were reviewing and discussing the 2015 mid-term exam in the high school’s media center prior to the administration of the 2016 mid-term exam.  Specifically, the student informed Mr. Bogert that the student took photographs of the computer monitor at which the UHS Physics students were sitting, which depicted four computer files relating to the 2015 mid-term exam, including the answer keys to both parts of the 2015 mid-term exam.  Mr. Bogert and the student then informed Taft Hall Principal Brian Spofford, who subsequently informed Building Principal Richard Murphy and Mr. Culp.  Following these discussions, a full investigation was commenced to determine whether any academic dishonesty or cheating occurred regarding UHS Physics.

On January 29, 2016, two students enrolled in UHS Physics informed a teacher that they had information regarding the 2016 mid-term exam, so Principal Spofford and Mr. Bogert met with them individually.  According to respondent, that information corroborated and expanded upon the information provided by the other student the day before. 

During the week of February 1, 2016, Principal Spofford and Mr. Bogert interviewed approximately 30 students, many of whom provided verbal and written statements regarding their knowledge of alleged cheating in UHS Physics during the course of the 2015-2016 school year.  Principal Spofford and Mr. Bogert also met with Principal Murphy several times to inform him of the status of their investigation.  Students interviewed during the investigation were asked to provide a statement regarding the 2016 mid-term exam. 

Upon the completion of the investigation, Principal Spofford and Mr. Bogert met with Principal Murphy and presented him with the evidence, including the written statements of A.L. and other students.  Principal Murphy then determined that the 2015 mid-term exam had been compromised.  Specifically, according to respondent, the investigation revealed that the 2015 mid-term exam and other secure, electronic course materials used in the UHS Physics course, were disseminated due to the wrongful, unauthorized access of Mr. Culp’s electronic files by a former student in the district who had taken UHS Physics during the 2014-2015 school year.  Further, the investigation revealed that the former student had sold the secure materials to a student in the 2015-2016 UHS Physics course, who then emailed copies of the 2015 mid-term and other assessment materials from the UHS Physics course that were located on the flash drive, to several students enrolled in UHS Physics for the 2015-2016 school year.  The investigation revealed that a student who received the electronic files stated to another student the day before the 2016 mid-term exam that “I have some questions that ‘might appear’ on the midterm” and that A.L. studied with this student on the morning of the 2016 mid-term exam.  According to respondent, multiple students enrolled in UHS Physics independently indicated that A.L. was in possession of, and used, the 2015 mid-term exam prior to the administration of the 2016 mid-term.  The student who studied with A.L. on the morning of the exam told Principal Murphy and Mr. Bogert that they reviewed an electronic copy of the 2015 mid-term exam together.  As a result, Principal Murphy determined that academic consequences were appropriate for A.L.

By letter dated February 12, 2016, Principal Murphy, notified A.L. that he, jointly with Principal Spofford and Mr. Bogert,  had determined that A.L. used the 2015 mid-term exam to her unfair academic advantage, and further, as follows:

1. Your UHS transcript through the State University of New York at Albany will read “D” for course PHY 105. 
2. If you are on file at the State University of New York at Albany, a VAIR (Violation of Academic Integrity Report) will be filed and placed in your record at the State University of New York at Albany.
3. You will not be permitted to enroll in the subsequent UHS Physics course through the State University of New York at Albany titled PHY 108 and PHY 109.
4. Your record with the North Colonie Central School District for the UHS Physics course (349) taken this fall will show a zero (0) for the mid-term exam score. 
5. You will stay in the same class for the remainder of the school year, and you will be eligible to earn full local credit for UHS Physics.
6. The National Honor Society committee [at Shaker High School] will be notified of this offense.

Petitioner met with Principal Murphy and Principal Spofford on or about March 1, 2016, and subsequently appealed the determination to the superintendent.  On March 7, 2016, respondent’s superintendent met with petitioner in A.L.’s absence.   

By letter dated April 6, 2016, respondent’s superintendent issued a written determination, concluding as follows:

[B]ased on my review of this matter in connection with your appeal, I believe that [A.L.] engaged in academic misconduct/cheating with respect to the midterm examination ... administered on January 28, 2016, in the Physics course.  Based on my review of this matter, I have determined that the academic consequences set forth in the District’s February 12, 2016 letter to [A.L.] shall remain in place.

The letter further advised petitioner of his right to appeal to the board within 10 days.

Petitioner subsequently appealed to the board and on May 26, 2016, met with the board.  A.L. was afforded the opportunity to speak to the board and briefly did so.  By letter dated June 10, 2016, the board president upheld the superintendent’s decision to impose the academic consequences set forth in the superintendent’s April 7, 2016 letter.  This appeal ensued. 

Petitioner asserts that, although A.L. was in the library studying on the morning of the 2016 mid-term exam, she did not possess the 2015 mid-term exam before sitting for the 2016 mid-term exam.  Petitioner further claims that respondent acted arbitrarily and capriciously by failing to conduct a detailed investigation and by failing to provide due process in its investigation, and imposed harsh, punitive penalties against A.L.  Petitioner requests a determination overturning all academic consequences imposed on A.L., including her zero grade, and “award her the deserved grade and adjust her test course grade accordingly.”  Petitioner further requests expungement of A.L.’s record with respect to any references to cheating allegations,[2] the consequences on her UHS transcript and VAIR record at SUNY Albany, and notice to respondent’s National Honor Society committee.

Respondent generally denies any wrongdoing and asserts that the appeal should be dismissed for failure to state a claim upon which relief may be granted. 

I must first address the procedural issues.  Respondent objects to petitioner’s reply and reply affidavit from A.L. on the grounds that the reply is outside the scope of the answer and seeks to buttress arguments previously set forth in the petition.  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.  However, with respect to the reply affidavit from A.L., which does not appear to counter new allegations in respondent’s answer and instead appears to buttress the claims asserted in the petition, petitioner has not established why such affidavit could not have been submitted along with the petition.  Therefore, I have not considered A.L.’s reply affidavit.

Turning to the merits, petitioner asserts that A.L. was deprived of due process, because she was not provided with a hearing and given the opportunity to confront and question the student witnesses against her.  Petitioner and A.L., however, are not entitled to a full evidentiary hearing under Education Law §3214, since this appeal involves grade reductions, not a disciplinary suspension (Appeal of a Student with a Disability, 48 Ed Dept Rep 94, Decision No. 15,802, aff’d sub nom. Fourman v. Mills, et al., Sup. Ct Albany Co., December 31, 2008; Appeal of Megan M., 38 id. 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293). 

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

The record indicates that petitioner and A.L. were given multiple opportunities to meet with school officials to discuss the incident and provide explanations.  The record indicates that, following the imposition of academic consequences by Principal Murphy, petitioner requested and was granted a meeting with Principal Murphy and Mr. Bogert.  During the meeting, Principal Murphy and Principal Spofford explained the district’s findings pertaining to A.L., who did not attend this meeting.  In addition, petitioner had an opportunity to appeal Principal Murphy’s determination to respondent’s superintendent.  Although petitioner attended the March 7, 2016 meeting with the superintendent, A.L. did not attend.  As a result, A.L. did not present any evidence in support of her appeal in addition to the general denials asserted by petitioner.  In addition, petitioner and A.L. had an additional opportunity to present an appeal to respondent board, and did meet with the board on May 26, 2016.  On this record, it appears that petitioner has had a full and fair opportunity to present A.L.’s version of the incident.  Under these circumstances, I find that petitioner and A.L. have received the appropriate due process (Appeal of a Student with a Disability, 48 Ed Dept Rep 94, Decision No. 15,802, aff’d sub nom. Fourman v. Mills, et al., Sup. Ct Albany Co., December 31, 2008; Appeal of Megan M., 38 id. 807, Decision No. 14,149; Appeal of Thomas and Judith M., 29 id. 277, Decision No. 12,293). 

Petitioner asserts that respondent acted arbitrarily and capriciously by failing to conduct a detailed investigation and by failing to provide due process in its investigation, and imposed harsh, punitive penalties against A.L.  Decisions regarding student grading rest initially with the classroom teacher and ultimately with the board of education (see Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, 16,624; Appeal of B.M., 46 id. 550, Decision No. 15,592; Appeal of Shaver, 38 id. 570, Decision No. 14,096; Appeal of Krom, 37 id. 459, Decision No. 13,905).  Education Law §1709(3), in conjunction with Education Law §1804, gives boards of education of central school districts broad authority "to prescribe the course of study by which the pupils of the schools shall be graded and classified ....” I will not substitute my judgment for that of school officials on a student’s grade absent a clear showing that the determination was arbitrary, capricious, or unreasonable (Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, 16,624; Appeal of a Student with a Disability, 48 id. 94, Decision No. 15,802; aff’d sub nom. Fourman v. Mills, et al., Sup. Ct. Albany County, December 31, 2008; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526; Appeal of T.M. and A.M., 45 id. 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Schmitt, 39 id. 617, Decision No. 14,329).  Where a student is found to have compromised the integrity of even one portion of an examination, a grade of zero, after a full investigation by the school district of the circumstances surrounding the grade, and after the student had an opportunity to present his or her version of the incident, is not arbitrary or capricious (see Appeal of D.F. and N.F., 53 Ed Dept Rep, 16,624; Appeal of a Student with a Disability, 48 id. 94, Decision No. 15,802; aff’d sub nom. Fourman v. Mills, et al., Sup. Ct. Albany County, Dec. 31, 2008; Appeal of K.K. and E.K., 47 id. 301, Decision No. 15,703; Appeal of Thomas and Judith K., 30 id. 245, Decision No. 12,450)[3].

The record indicates that respondent conducted an initial investigation over the course of three weeks, which included interviews of nearly 30 students as well as written statements.  Following the investigation, respondent concluded that A.L. was in possession of, and used, the secure 2015 mid-term exam prior to the administration of the 2016 mid-term exam.  

According to respondent, this determination was based primarily upon the corroborating testimony of other UHS Physics students interviewed during the investigation.  For example, the investigation revealed that a student who received the electronic files of the 2015 mid-term exam and answer key stated to another student the day before the 2016 mid-term exam that “I have some questions that ‘might appear’ on the midterm,” and that A.L. studied with this student on the morning of the 2016 mid-term exam and that they reviewed a copy of the 2015 mid-term exam together.  According to respondent, multiple students enrolled in UHS Physics independently reported that A.L. was in possession of, and used, the 2015 mid-term exam prior to the administration of the 2016 mid-term exam.  

In the petition, petitioner asserts that A.L. “did not have the [2015] midterm exam before the test” and that no one received it from her.  However, petitioner confirms in his petition that, when he asked A.L. what she was doing before the 2016 mid-term exam, “she told [petitioner] that she was preparing for the midterm exam in the library.”  Although petitioner makes conclusory allegations that A.L. denies having ever provided the 2015 mid-term exam to others, or having received a copy of it prior to the 2016 mid-term exam, he has submitted no proof with the petition to substantiate such contentions or to rebut respondent’s assertion that multiple students, including A.L.’s study partner on the morning of the exam, volunteered to respondent that A.L. had possession of and reviewed the 2015 mid-term exam.  I find that petitioner has not met his burden of proving respondent’s determination that A.L. engaged in academic dishonesty with respect to the 2016 mid-term exam was arbitrary, capricious or unreasonable.  As discussed above, I will not substitute my judgment for that of school officials on a student’s grade absent a clear showing that the determination was arbitrary, capricious, or unreasonable (Education Law §§1709[3] and 1804; Appeal of D.F. and N.F., 53 Ed Dept Rep, 16,624; Appeal of a Student with a Disability, 48 id. 94, Decision No. 15,802; aff’d sub nom. Fourman v. Mills, et al., Sup. Ct. Albany County, December 31, 2008; Appeal of E.B. and J.B., 46 id. 338, Decision No. 15,526; Appeal of T.M. and A.M., 45 id. 276, Decision No. 15,321; Appeal of R.W., 40 id. 671, Decision No. 14,580; Appeal of Schmitt, 39 id. 617, Decision No. 14,329).  Petitioner has not demonstrated that the academic penalties imposed, notably a grade of “0” on the 2016 mid-term exam that will not appear on A.L.’s transcript, were excessive or unreasonable.  Based on the record before me, I cannot conclude that the decision to impose academic penalties upon A.L. was arbitrary, capricious, or unreasonable.

In light of these determinations, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE