Decision No. 13,577

(March 18, 1996)

Harris Beach & Wilcox, LLP, attorneys for respondent, James A. Spitz, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the selection process used by respondent's school to determine eligibility for its eighth grade Regents earth science course. Petitioner also challenges respondent's refusal to place his son in the eighth grade Regents earth science course. The appeal must be dismissed.

Petitioner's son is an eighth grade student in respondent's school district. Under respondent's selection process, parents were notified in March 1995 that students would be placed in either the Regents earth science class or in the district's life science class for their eighth grade year. Students enrolled in seventh grade advanced math were automatically considered for placement in the Regents earth science class. Students enrolled in seventh grade regular math were considered for placement in the Regents earth science class only upon recommendation by their seventh grade science teacher or at the request of the student's parents. Petitioner's son was enrolled in the regular seventh grade math class and was not recommended for placement by his science teacher. Petitioner requested that his son be considered for placement in the Regents earth science class. In May 1995, the principal of respondent's middle school and the chair of the middle school's science department notified petitioner that his son would be placed in the district's life science class, not the Regents earth science class. Petitioner requested a formal review of this decision, which upheld the placement of his son in the district's life science class. Petitioner appealed this decision to respondent's superintendent, who denied petitioner's request. Petitioner then appealed to respondent, which upheld its superintendent's determination.

Respondent's initial selection process for placement in the Regents earth science class uses a combination of standardized tests, classroom grades, and evaluations performed by the student's seventh grade science teacher. Each of these three areas is assigned point values based on the student's performance, with 46 total points possible. Standardized test scores from 4 tests are used, with a possible total of up to 18 points, dependent upon the student's scores. They are the fifth grade Stanford Achievement Test (SAT) reading comprehension score (five possible points); the sixth grade Pupil Evaluation Program (PEP) Reading Raw Score (four possible points); the sixth grade PEP Math Raw Score (four possible points); and the sixth grade Otis-Lennon Scholastic Aptitude Test (OLSAT) (five possible points).

A student may receive up to ten possible points for class grades in seventh grade science (five possible points) and seventh grade advanced placement math (five possible points) or seventh grade regular math (two possible points). Grades from the advanced math course are weighted more heavily than those from the regular math class. For example, an A+ in the advanced math class is worth five points, while an A+ in the regular math class is worth two points. No points are given for grades below an A- in the regular math class. Respondent states that this weighting is justified because students who do not take the advanced math course run into trouble in future science courses, such as physics and chemistry, where more advanced math skills are required.

The seventh grade science teacher evaluation portion is worth a possible 18 points. The teacher can award up to three points for each of six factors that relate to the student's classroom performance in areas such as ability to work independently, to grasp abstractions, and to create and interpret charts and graphs.

Respondent places students who have received 39 of the possible 46 points in the Regents earth science class. Petitioner's son received 20 points. Petitioner's request for a formal review of his son's placement resulted in another evaluation. Petitioner was invited to, and did, submit additional materials to be considered in this review. The review was conducted by the assistant superintendent for instruction and the middle school science department building leader. In addition to the original assessments, they considered the student's most recent grades, his seventh grade SAT reading comprehension score, his performance in other classes, his extra-curricular science achievements, and parental support. They determined, in their professional judgment, that petitioner's son was not ready for placement in the Regents earth science class. This petition ensued.

Petitioner contends that respondent's policies and procedures for selecting students for the Regents earth science class are discriminatory because too much weight is given to standardized test scores. He also contends that the lower participation rate of students in respondent's district in the Regents earth science class when compared with nearby school districts further demonstrates the discriminatory affect of respondent's policies. Petitioner demands that respondent perform a statistically valid study of its selection process to prove that it, in fact, selects students who will succeed in accelerated science classes in high school, and that the process does not exclude other students who would succeed.

Respondent contends that the Commissioner has upheld the use of standardized tests as part of the selection process in the past and that the Commissioner will not substitute his judgment for that of respondent unless respondent has acted in an illegal, arbitrary, or capricious manner. Respondent also states that it performed a formal review of the selection process in 1992, which concluded that its process was the best means of determining a student's readiness for Regents earth science. Respondent also states that the selection process is informally reviewed each year by the high school science teachers, middle school principal, and middle school guidance counselors.

This appeal must be dismissed as moot. The Commissioner of Education will determine only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Langenmayr, 30 id. 322). Petitioner's son is more than half way through the eighth grade and his life science course and cannot be transferred to the earth science class at this time. Therefore, this appeal is moot. I note that petitioner's son will have the opportunity to take earth science next year as a ninth grader. Petitioner's contention that his son will not be admitted to a good college unless he has been placed in the advanced science track starting with eighth grade Regents earth science is not persuasive, especially since it is possible for petitioner's son to "self-accelerate" by enrolling in an accelerated science course in high school by use of elective courses or summer school.

The appeal must also be dismissed on the merits. Prior decisions have held that standardized test scores may be used as part of the screening criteria for determining eligibility for enrichment programs as long as the test scores are not the sole criteria in the selection process. (Appeal of Alexandreena D., 30 Ed Dept Rep 203; 30 id. 462). Respondent's use of tests, classroom grades, and teacher evaluations adequately ensures that placement decisions are not restricted to reliance on a single factor. Respondent states that even with poor standardized test scores, a student who has high classroom marks in math and science may still be assigned to the advanced classes. During the formal review process numerous other factors are considered. The decision to place petitioner's son in the district's life science course was not based on any one factor, but instead was the result of a careful evaluation of many relevant factors.

Petitioner also had his son privately tested at the Rochester Institute of Technology where the Woodcock-Johnson Psycho-Educational Battery Revised and the Wechsler Intelligence Scale for Children, third edition, were administered. The affidavit of a school psychologist employed by respondent indicates that even using those scores instead of the usual standardized tests, and weighting them most favorably toward petitioner's son, the student would receive only 11 of the 18 points possible. This would raise his total score from 20 to 29 points, still well short of the 39 needed for placement in the Regents earth science class.

Boards of education have broad authority to prescribe the course of study by which students shall be graded or classified pursuant to Education Law '1709(3). The Commissioner has consistently held that he will not substitute his judgment for that of a board of education, absent evidence that the board has acted in an illegal, arbitrary, or capricious manner (Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150; Appeal of Bartowski, 25 id. 52). Based on the foregoing evidence, there is no basis to overturn respondent's decision in this matter. I have reviewed the petitioner's remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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