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Decision No. 13,916

Appeal of OSWALD JUNGER, on behalf of MICHELLE JUNGER, from action of the Board of Education of the North Bellmore Union Free School District with respect to placement.

Decision No. 13,916

(April 14, 1998)

Peter G. Albert, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the North Bellmore Union Free School District ("respondent") to allow his daughter to go directly from the fifth grade to the seventh grade for the 1996-1997 school year. The appeal must be dismissed.

Petitioner's daughter, Michelle, was a fifth grade student during the 1995-1996 school year. On April 15, 1996, petitioner wrote to respondent's Director of Special Services, requesting his daughter's acceleration, setting forth the reasons for his request, and attaching substantial documentation. There seems to be no dispute that Michele was an excellent student in the fifth grade.

On April 26, 1996, respondent's superintendent wrote a letter denying this request, and setting forth his reasons for doing so in considerable detail. Thereafter, petitioner sought assistance from staff members of the State Education Department who attempted to assist by having Michele's records reviewed by an outside party. When these efforts did not produce the results he sought, petitioner appealed to respondent, which, by letter dated July 3, 1996, advised that the board had reviewed the superintendent's decision in executive session and supported the superintendent's decision not to accelerate Michelle's grade level assignment.

Petitioner commenced this appeal on August 22, 1996, and sought an interim order directing that his daughter be placed in the seventh grade. On September 4, 1996, an affidavit of respondent's superintendent was received, setting forth the reasons why a stay should not be granted. The stay sought by petitioner was denied on September 9, 1996. After the denial of the stay, respondent filed its answer, supporting affidavits, and memorandum of law. Petitioner filed no reply and filed no other papers after the denial of the stay.

The appeal must be dismissed as moot. The Commissioner will not render a decision where the facts upon which the claim is based no longer exist. In this case, the relief petitioner sought as an interim order was also the ultimate relief desired. Where a stay has been denied and the time period critical to that stay has passed, e.g., the beginning of the 1996-1997 school year, the matter has become moot (Appeal of Laudin, 37 Ed Dept Rep 3; Appeal of Kline, 35 id. 91; Appeal of Doris J., 31 id. 153). On the facts presented by this appeal, it is clear that no meaningful relief is now possible (Appeal of Stopka, 34 Ed Dept Rep 157; Appeal of Winkler, 33 id. 334). Everything that petitioner wanted to have considered was considered at the time the request for an interim order was denied.

Even if I were not dismissing for mootness, I would dismiss on the merits. Education Law "1709 provides boards of education with the specific power and duty:

3. To prescribe a course of study by which the pupils of the schools shall be graded and classified, and to regulate the admission of pupils in their transfer from one class or department to another, as their scholarship shall warrant.

In an appeal before the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested. Determinations as to grade level or program are uniquely within the province of the local board of education. I will not substitute my judgment for that of a board of education with respect to student placement unless I find that the board has acted in an illegal, arbitrary, or capricious manner (Appeal of Schrier, 33 Ed Dept Rep 656; Appeal of Paye, 33 id. 241; Appeal of Stokes, 29 id. 409; Matter of Brandon, 22 id. 223; Matter of Boussios, 18 id. 590). This rule has been applied in cases where acceleration was demanded but denied (Appeal of Wertis, 35 Ed Dept Rep 312; Appeal of Stokes, supra). While the materials presented on behalf of petitioner indicate that his daughter is an excellent student, the record also reflects that there were other students just as highly qualified. The record also indicates that Michelle's abilities and educational needs could be adequately addressed in a sixth grade setting, properly supplemented by the school's "Alpha Program" for gifted students and other available enrichment opportunities. Respondent and its superintendent gave considerable thought to the decision not to accelerate Michelle, which I consider to be rational.

I have reviewed the parties' other contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE