Appeal of S.B. and A.B., on behalf of their son M.B., from action of the Board of Education of the North Colonie Central School District regarding grading.

Decision No. 17,563

(December 21, 2018)

Tully Rinckey, PLLC, attorneys for petitioners, Michael L. Boyle, Esq., of counsel

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

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the North Colonie Central School District (“respondent” or “board”) to impose academic penalties upon their son M.B.  The appeal must be dismissed.  

During the 2015-2016 school year, M.B. 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 exam, and personally prepared the instructions.  To ensure the security of the 2015 UHS 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 science supervisor Keith 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 certain 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, including M.B. 

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 M.B. and other students and the contemporary notes independently made by Principal Spofford and Mr. Bogert.  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 UHS Physics 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, including M.B.  Respondent asserts that M.B.’s statements to Principal Spofford and Mr. Bogert corroborated this evidence.    Additionally, respondent asserts that a photograph taken in the library on the morning of the 2016 mid-term exam shows M.B. as a recipient of the email from the student in UHS Physics who emailed the 2015 mid-term exam materials to others enrolled in UHS Physics.[2]  Respondent also asserts that the investigation revealed that M.B. stated that he, as well as a student who commented about having questions that “might appear” on the 2016 mid-term exam, and a student who made a reference about obtaining a score of 100% on the 2016 mid-term exam, all used these materials to study together on the morning of the 2016 mid-term exam.  As a result, Principal Murphy determined that academic consequences were appropriate for M.B.

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

1. Your UHS transcript through the State University of New York at Albany will be amended to read “F” for PHY 105 and PHY 106 courses. 
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 courses through the State University of New York at Albany titled PHY 108 and PHY 109.
4. Your North Colonie Central School District transcript for the UHS Physics course (349) will be amended to read “WF” (Withdraw Fail), and high school credit for that course will not be awarded to you.
5. You will stay in the same class for the remainder of the school year. However, you will only be eligible to earn ½ credit for the year in physics, and your transcript for the second semester will reflect an honors level (331) course, not UHS.
6. The National Honor Society committee [within respondent’s district] will be notified of this infraction.

Petitioners subsequently appealed the determination to the superintendent.  An appeal meeting with the superintendent was scheduled for March 15, 2016, but petitioners’ former attorney informed counsel for respondent that petitioners did not wish to meet with the superintendent; instead, they submitted documents in support of their appeal. 

By letter dated April 7, 2016, respondent’s superintendent issued a written determination, concluding as follows:

[B]ased on my review of this matter in connection with your appeal, it is my conclusion that [M.B.] engaged in academic misconduct/cheating with respect to both the midterm examination ... administered on January 28, 2016, as well as other assessments in the physics course during the first half of the school year.  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 [M.B.] shall remain in place, subject only to the following modifications:

• [M.B.]’s North Colonie Central School District transcript for the UHS Physics course (349) will not read “WF” (Withdrawn Fail).  Rather, the grade of 96% that was assigned to [M.B.] for the First Quarter will remain as currently reflected on his report card, the grade for the Second Quarter has been changed from “WF” to 50%, and a grade of 0% has been assigned to the midterm examination.  Based on these grades, [M.B.]’s grade for the first semester in Physics is 48.667%, which is reported on his report card as a 49%.  These grades have been entered on [M.B.]’s report card, which is available on the parent portal.  Of note, with respect to the reported grade of 50% for Second Quarter, it is my determination that [M.B.]’s actions warranted the grade of 0% for that quarter.  However, in accordance with the practice of Shaker High School, grades of students that fall below a 50% for either of the first two quarters are adjusted to a grade of 50% for that quarter.  Accordingly, this adjustment to 50% was made to [M.B.]’s grade for the Second Quarter.
• [M.B.]’s report card and transcript for the second semester of the 2015-2016 school year will reflect continued enrollment in the University in the High School Physics course.  The report card and transcript will not reflect enrollment in an honors level course (331) as indicated in the District’s earlier letter.  As a result, [M.B.] will be eligible to earn one (1) full credit for the year in Physics from Shaker High School if he meets the District’s requirements for passing the full year course.  This change has been made to [M.B.]’s records.

The letter further advised petitioners of their right to appeal to the board within 10 days.

Petitioners subsequently appealed to respondent board on or about April 22, 2016, and on May 26, 2016, met with the board together with M.B.  By letter dated June 10, 2016, the board president informed petitioners that the board had upheld the superintendent’s decision to impose the academic consequences set forth in the superintendent’s April 7, 2016 letter.  This appeal ensued.  Petitioners’ request for interim relief was denied on August 26, 2016. 

Petitioners assert that respondent’s finding that M.B. cheated “must fail as the first accusation of cheating was not raised until the appeal of the Decision to [the superintendent]”; and that respondent has failed to establish the initial charge of receiving an “unfair academic advantage”; that there is no basis for M.B.’s punishment in either the Shaker High School Student Handbook or Faculty Handbook; that the penalty was excessive, arbitrary, and capricious; that respondent deprived M.B. of due process; and that respondent failed to exercise reasonable care in its investigation of M.B. and subsequent proceedings.  Petitioners request a determination that the penalty imposed was excessive and modifying or reversing the same; a determination that the superintendent’s “allegation of M.B.’s cheating was beyond the Decision and reversing same,” and expungement of “all of the decision and penalty.”

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 asserts that petitioners have not submitted a verified reply to its answer but, instead, have improperly submitted a reply affidavit – an impermissible pleading under the Commissioner’s regulations.  The Regulations of the Commissioner of Education permit a petitioner to submit a reply to new material and affirmative defenses contained in an answer (8 NYCRR §§275.3 and 275.14).  In this case, the reply affidavit, while not in the proper form for a pleading, is in the nature of a reply to allegations in the answer relating to petitioners’ application for a stay.  While respondent is correct that a reply affidavit submitted independently from a reply may not be submitted without prior approval of the Commissioner pursuant to 8 NYCRR §276.5(a), because this reply affidavit is in the nature of a reply, I have accepted it for consideration in the appeal.

However, respondent further contends that petitioners’ reply contains new material that was not raised in the original petition and may not be introduced in the 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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.

Turning to the merits, 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 petitioners 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).

Petitioners assert that M.B. was denied due process, because M.B. was interviewed, questioned about the incident and “forced” to sign a written statement without first being afforded oral or written notice of the charges against him, an explanation of the evidence against him and an opportunity to tell his side of the story.  Among other things, petitioners assert that in so doing, respondent violated local rule NCDP 5300R.  Petitioners and M.B. were 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). The procedural protections set forth in Education Law §3214(3) and 8 NYCRR §100.2(l) with respect to student suspensions are not applicable to grade reductions. 

Petitioners’ argument that respondent was obligated by local rule NCDP 5300R and the dictates of due process to provide notice of charges, present M.B. with the evidence against him and provide him with the opportunity to present his side of the story before interviewing him has no merit.  The interviews were conducted as part of the investigation and no charges had yet been brought. Contrary to petitioners’ arguments, M.B. was afforded the opportunity to present his side of the story when he was asked to provide a written statement, and petitioners have not proven that such written statement or the verbal statements made by M.B. were coerced.  To the extent petitioners argue that it was improper to question M.B. in the absence of his parents, neither the provisions of the Education Law nor constitutional due process considerations require that a parent be present when a student is questioned by school personnel about possible infractions of school rules (Appeal of M.B. and M.B., 57 Ed Dept Rep, Decision No. 17,304; Appeal of M.W. and K.W., 55 id., Decision No. 16,903; Appeal of D.H., 47 id. 77, Decision No. 15,631). 

Moreover, I find that M.B. was afforded due process through the procedures followed by respondent.  The record indicates that petitioners and M.B. were given multiple opportunities to meet with school officials to discuss the incident and provide explanations.  The record indicates that on February 1, 2016, M.B. met with Principal Murphy, Principal Spofford and Mr. Bogert to discuss the incident and was asked to provide a written statement.  He did so and met again with Principal Spofford and Mr. Bogert on or about February 4, 2016 to discuss the incident and his written statement.  On February 12, 2016, M.B. met with Principal Murphy, Principal Spofford and Mr. Bogert and was presented the determination letter imposing academic penalties for his conduct.  Further, petitioners had an opportunity to appeal Principal Murphy’s, Principal Spofford’s and Mr. Bogert’s February 12, 2016 determination to respondent’s superintendent.  Petitioners, who were then represented by counsel, were offered the opportunity to meet with the superintendent to discuss the appeal, but declined to do so.  The superintendent, after reviewing the appeal papers submitted by petitioners, issued a decision modifying the academic penalties.  In addition, petitioners and M.B. 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 petitioners had notice of the charges against M.B. and have had a full and fair opportunity to present M.B.’s version of the incident, all prior to the imposition of any academic penalty. 

Petitioners assert that respondent’s finding that M.B. cheated “must fail as the first accusation of cheating was not raised until the appeal of the Decision to [the superintendent]”; that respondent has failed to establish the initial charge of receiving an “unfair academic advantage”; that there is no basis for M.B.’s punishment in either the Shaker High School Student Handbook or Faculty Handbook; that the penalty was excessive, arbitrary, and capricious; and that respondent failed to exercise reasonable care in its investigation of M.B. and subsequent proceedings.

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, Decision No. 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, Decision No. 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).

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 M.B. received and used the secure 2015 mid-term exam materials, as well as other assessment materials used in UHS Physics during the first half of the school year, 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 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, including M.B.  Respondent asserts that M.B.’s statements to Principal Spofford and Mr. Bogert corroborated this evidence.  Additionally, respondent asserts that a photograph taken in the library on the morning of the 2016 mid-term exam shows M.B. as a recipient of the email from the student in UHS Physics who sent the 2015 mid-term exam materials to others enrolled in UHS Physics, though as I noted above the copies of the photographs submitted in this appeal are too illegible to confirm that allegation.  However, petitioners have neither alleged nor proven that M.B. was not named as a recipient in the photograph of the email or that M.B. did not receive the email with a copy of the 2015 Physics mid-term exam prior to the 2016 mid-term exam as alleged by respondent.  Most importantly, Mr. Bogert, Principal Spofford and Principal Murphy each attest in their affidavits that M.B. stated that he, as well as a student who commented about having questions that “might appear” on the 2016 mid-term exam, and a student who made a reference about obtaining a score of 100% on the 2016 mid-term exam, all used these materials to study together on the morning of the 2016 mid-term exam. Petitioners have provided no evidence to rebut such sworn statements that M.B. admitted studying the 2015 UHS Physics mid-term exam prior to the 2016 mid-term exam.

Petitioners assert that, although M.B. studied with his classmates in preparation for the 2016 mid-term exam, and that the students all shared study materials, there is no indication that M.B. had any intent to gain an advantage over his classmates.  However, petitioners confirm that, “although M.B. did receive materials from Culp’s past classes, he did not focus on them.  M.B. did not realize that the midterm exams were identical until a classmate mentioned it to him after the test.”  Therefore, although M.B. denies receiving an “unfair academic advantage” or engaging in “academic misconduct,” I have carefully weighed all the evidence, and find that the credible evidence supports respondent’s determination that M.B. engaged in academic dishonesty with respect to the 2016 mid-term exam. I reject petitioners’ argument that respondent erred by initially determining that M.B. had obtained and used course materials including the 2015 mid-term exam to his unfair academic advantage and then referring to the conduct as cheating on appeal.  Improperly obtaining a prior exam and using it to the student’s unfair advantage constitutes cheating.

I also reject petitioners’ various arguments that respondent’s Code of Conduct did not specifically prohibit M.B. from reviewing materials from past years in preparing for his 2016 mid-term exam, and that respondent cannot claim that the exam was secure because many of the questions and answers are allegedly available on the Internet.  On this record, M.B. had in his possession the 2015 mid-term exam and reviewed it.  Whether or not many of the questions and answers were publicly available on the Internet, the 2015 mid-term exam was improperly obtained and the record indicates that the students who obtained it did so with the expectation that the questions on that exam would be repeated in the 2016 midterm exam.  Thus, the students who reviewed the 2015 UHS midterm exam clearly gained an unfair advantage and engaged in cheating.  While it is true that respondent’s Code of Conduct generally refers to “Academic Fraud and Cheating” and does not specifically address possession of an examination and answers prior to a test administration as a form of cheating, petitioners and M.B. cannot reasonably claim that possession of examination questions prior to the administration of the examination is permissible.  Education Law §225 sets forth various unlawful acts with respect to examinations held in accordance with the Education Law or the rules of the University of the State of New York.  Education Law §225(4) explicitly makes possession of question papers to be used in an examination at any time prior to the date set for the examination unlawful unless duly authorized by the Commissioner or the Board of Regents, and Education Law §225(6) makes unlawful the use in an examination of questions so obtained prior to the examination.  The principle of Education Law §225, that possessing and/or using copies of a secure examination prior to the administration of the examination is a form of cheating or academic misconduct, is self-evident and must extend to local examinations such as the UHS Physics mid-term examinations.

I also reject petitioners’ argument that respondent cannot impose the academic penalties because M.B.’s conduct would not constitute cheating as defined in the University of Albany’s Undergraduate regulations.  The UHS Physics program is jointly operated by the State University of New York at Albany (“SUNY Albany”) and respondent’s district.  While the letter from Principal Murphy informs petitioners and M.B. that his transcript at SUNY Albany would record an “F”, and that a Violation of Academic Integrity Report would be filed with SUNY Albany, if petitioners contest the grade awarded by SUNY Albany or believe that the Violation of Academic Integrity Report should not be accepted by SUNY Albany because of its definition of cheating, those are matters that petitioners need to raise with SUNY Albany and not in an appeal to the Commissioner under Education Law §310.  The relief requested by petitioners herein relates solely to the alleged excessiveness of the academic penalty imposed by respondent and expungement of the decision and penalty from M.B.’s student record, and even if it were true that M.B.’s conduct would not technically constitute cheating under SUNY Albany’s regulations, that would not preclude respondent from determining that such conduct constitutes cheating under its own Code of Conduct.

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, Decision No. 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 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).  Contrary to petitioners’ arguments, I do not find that the academic penalty imposed was excessive or unreasonable.  Respondent’s superintendent made reasonable adjustments to the penalty, assigning M.B. a grade of “0” on the mid-term examination that would not appear on M.B.’s transcript, but a grade 50% for the second quarter, while allowing M.B. to complete the course and receive credit. Based on the record before me, I cannot conclude that the decision to impose these academic consequences upon M.B. was arbitrary, capricious, or unreasonable.

In light of this determination, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE