Appeal of J.L., on behalf of her child, from action of the Board of Education of the Port Washington Union Free School District, Michael Hynes in his capacity as superintendent of schools, and Christopher Shields in his capacity as assistant superintendent of schools regarding grading and the Dignity for All Students Act.

Decision No. 18,120

(May 16, 2022)

Bond, Schoeneck & King, PLLC, attorneys for respondent, Howard Miller, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals from action of the Board of Education of the Port Washington Union Free School District (“respondent”), superintendent Michael Hynes, and assistant superintendent Christopher Shields (collectively, “respondents”) regarding her child’s grade on a science project, an alleged violation of the Dignity for All Students Act (“DASA”).  The appeal must be dismissed.

During the 2019-2020 school year, petitioner’s child (“the student”) attended sixth grade in respondent’s middle school.  The record reflects that petitioner filed a DASA complaint concerning bullying and harassment of her child by several classmates sometime in 2020.  In connection therewith, in October 2020, petitioner attended a meeting with teachers, the assistant principal, and a counselor to address the student’s emotional and academic wellbeing.  Petitioner alleges that a “restorative action plan” was created at this meeting, which indicated that the student should be graded solely via an individualized rubric to be sent home with each class assignment.  Petitioner states that these rubrics would allow her to check the student’s work at home.  Respondent denies that it developed or agreed to such a plan.

In January 2020, the student’s sixth grade science teacher asked students to use the periodic table of elements to answer the following question:  “What are you made of?”  During class, the teacher explained the parameters of the assignment and displayed examples of projects completed by former students.  The student completed the assignment and received a grade of 88 out of 100.  Petitioner challenged the student’s grade, arguing that the grading criteria were unclear and that the student was impermissibly asked to “use his memory” in violation of the restorative action plan.  Respondent declined to change the grade.

On July 21, 2020, petitioner filed a DASA complaint seeking a reevaluation of the project grade and removal of any reference to “inconsistency” in the student’s sixth grade records.  On October 2, 2020, the superintendent determined that no DASA violation had occurred, finding that the science teacher “exercised appropriate educational discretion” in grading the project.  The superintendent also found no evidence that the student had been bullied or harassed.  Petitioner appealed this decision to respondent, which affirmed the superintendent.  This appeal ensued.

Petitioner argues that respondent did not adhere to the restorative action plan or sufficiently investigate her complaint.  She seeks an order requiring that the student’s science project be regraded according to such plan.  She further seeks a review of respondent’s DASA complaint procedures and additional training of district staff.

Respondents argue that the petition should be dismissed as untimely and that petitioner otherwise fails to demonstrate a clear legal right to the relief requested.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  A request for reconsideration of the underlying decision or act does not extend the time within which a petitioner may appeal to the Commissioner (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Here, respondent notified petitioner of its decision by email on November 10, 2020.  This appeal was not commenced until January 8, 2021.  Although petitioner continued to email respondent concerning its decision, these communications were in the nature of requests for reconsideration.  Such requests do not extend the time within which an appeal must be commenced (Appeal of L.N., et al., 61 Ed Dept Rep, Decision No. 18,105; Appeal of Cole, 57 id., Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).

Even if the appeal were not dismissed as untimely, it would be dismissed on the merits.  DASA prohibits harassment and bullying in public schools.  It defines “harassment” and “bullying,” in relevant part, as: “the creation of a hostile environment by conduct or by threats, intimidation or abuse, including cyberbullying ....” (Education Law § 11 [7]; 8 NYCRR 100.2 [kk] [1] [ix]).  A district’s DASA determination will only be reversed upon a showing that it was arbitrary or capricious (Appeal of a Student with a Disability, 59 Ed Dept Rep, Decision No. 17,859; Appeal of L.D., 55 id., Decision No. 16,864). 

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she 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).

Here, petitioner has failed to show, or even allege, that the student’s teacher created a hostile environment for the student by conduct, threats, intimidation, or abuse.  The mere receipt of an unsatisfactory grade, without more, does not demonstrate bullying or harassment (Appeal of R.T. and S.T., 57 Ed Dept Rep, Decision No. 17,340 [“absent proof that … grading was the product of prohibited discrimination, a grading dispute does not state a claim upon which relief may be granted under DASA …”]).

Additionally, petitioner has not proven that the imposition of the grade was arbitrary or capricious.  It is well settled that decisions regarding student grading rest initially with the classroom teacher and, ultimately, with the board of education (Education Law § 1709 [3], Appeal of R.E., 56 id., Decision No. 17,003, Appeal of Jo, 44 id. 198, Decision No. 15,147).  A grade determination will only be reversed if it was arbitrary or capricious (Appeal of R.J.K. and L.K., 50 id., Decision No. 16,232).  Respondent determined that the student’s grade on the project was reasonable based on the student’s work and a grading rubric.  I have reviewed these materials—in light thereof, I cannot find that the grade determination was arbitrary or capricious.  Accordingly, even if the appeal were not dismissed as untimely, it would be dismissed on the merits.

THE APPEAL IS DISMISSED.

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