Commissioner, Mills.--Petitioner challenges respondent's plan for an Eighth Grade Acceleration program in Languages (hereinafter, the "Acceleration Program"). Petitioner requests that I direct respondent to modify its program to comply with section 100.4(c) of the Regulations of the Commissioner of Education (8 NYCRR "100.4[c]). The appeal must be dismissed.

Petitioner resides within the Niskayuna Central School District. At the time this appeal was commenced on June 4, 1996, petitioner's son was in the fifth grade and his daughter was in the third grade in respondent's elementary school, and petitioner planned to send his son to a private school for sixth grade in the 1996-97 school year.

On May 6, 1996, respondent adopted a resolution approving the Acceleration Program to be effective in the 1997-98 school year. Prior to the adoption of that resolution, respondent's Assistant Superintendent, Foreign Language Department Chairperson, and High School Principal asked the State Education Department whether the program at issue would meet the requirements of 8 NYCRR "100.4(c). On March 7, 1996, the State Education Department's District Superintendents Program Officer advised respondent's staff: "Your letter of January 30, 1996 (attached) describes a program which is consistent with 8 NYCRR 100.4(c)."

Petitioner contends that the Acceleration Program violates 8 NYCRR 100.4(c) because it does not adequately determine whether a student is ready to pursue a high school course, does not allow gifted and talented students to move more rapidly through the usual sequence of instruction or provide a separate class for gifted and talented students, and does not provide eighth grade students with above grade-level instructional materials.

Respondent contends that the Acceleration Program complies with 8 NYCRR "100.4(c) and that prior to adopting the resolution establishing the program it sought and obtained the State Education Department's approval. Respondent also sets forth the following procedural arguments: that petitioner lacks standing, raises issues not yet ripe for determination, fails to state a claim upon which relief can be granted, and does not raise a justicable controversy.

Before reaching the merits, I will address the issue of standing. An individual may not maintain an appeal pursuant to Education Law "310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil or property rights (Appeal of Woodward, 36 Ed Dept Rep 445; Appeal of Craft and Dworkin, 36 id. 314; Appeal of Garwood, 35 id. 297). Petitioner is a taxpayer and resident of the district and at the time he commenced this appeal had a son in the fifth grade and a daughter in the third grade in respondent's school. Petitioner's son will not reach the eighth grade until the 1998-99 school year and his daughter will not reach the eighth grade until the 2000-2001 school year. Although petitioner has brought this appeal on behalf of his son and daughter, he has failed to establish in the record before me that they have been injured. Petitioner's status as a resident of the district and a parent of students who are not yet in the eighth grade in respondent's schools is insufficient to confer standing to seek judicial review of respondent's action which affects eighth graders (Appeal of Shabot, 35 Ed Dept Rep 289). Since petitioner's children have not been injured by the Acceleration Program, petitioner lacks standing to bring this appeal (Appeal of Woodward, supra; Appeal of Shabot, supra). Accordingly, the appeal must be dismissed for lack of standing. In light of my finding that petitioner lacks standing to bring this appeal, I need not address respondent's remaining procedural arguments.

This appeal must also be dismissed on the merits. Section 100.4(c) of the Commissioner's regulations provides that students in eighth grade shall have the opportunity to take high school courses in Regents mathematics and in at least one of the following seven areas: English, social studies, second languages, art, music, occupational education subjects, and Regents science courses. This opportunity is subject to a determination by the superintendent or his or her designee that the "student has demonstrated readiness in each subject in which he or she is to begin high school courses in the eighth grade. . . ." (8 NYCRR "100.4[c][1][i]). Respondent provides eighth grade acceleration in mathematics and in second languages. Only the second language acceleration program is at issue in this appeal.

Pursuant to Education Law "1709(3), boards of education have broad authority to prescribe the course of study by which pupils shall be graded and classified and to regulate the admission of pupils and their transfer from one class or department to another as their scholarship warrants. Consistent with that authority is the power to place students (Appeal of Reid, 32 Ed Dept Rep 587; Appeal of Kendrick and Sillato, 32 id. 464). It is well settled that the Commissioner will not substitute his judgment for that of a board of education with respect to student placement, 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).

Petitioner claims that respondent exceeded its authority by adopting an Acceleration Program that does not meet the requirements of 8 NYCRR "100.4(c). Respondent claims the Acceleration Program meets the requirements of 8 NYCRR "100.4(c) and that the State Education Department advised respondent's staff of this fact. It is clear that a staff member of the State Education Department advised respondent's staff that the Acceleration Program met the requirements of "100.4(c). While I am not bound by such advice in an appeal before me (Appeal of Shravah, et al., 36 Ed Dept Rep 396 aff'dEducation Alternatives, Inc. v. Mills, Supreme Court, Albany County, Special Term, December 18, 1997; Matter of Ceparano, 17 id. 298), I will consider it as evidence of how the State Education Department has been interpreting the regulation.

Petitioner claims that the Acceleration Program does not adequately determine whether a student is ready to pursue high school level work, as required by 8 NYCRR "100.4(c). Section 100.4(c) requires school district staff to determine whether a student has demonstrated readiness in each subject in which he or she is to begin high school courses. The Acceleration Program has established a "readiness standard" -- whereby a student demonstrates readiness to participate if he or she has successfully completed one year of foreign language study in the seventh grade and is not excluded by remediation or by an Individualized Education Plan. Respondent is in the best position to know the capability of students who have successfully completed its seventh grade foreign language curriculum and has made a reasonable determination that such students are ready to pursue high school level work. Respondent has adequately met the regulation's requirement that a student must demonstrate readiness to begin high school level work.

Petitioner claims that the Acceleration Program violates 8 NYCRR "100.4(c) because it does not allow gifted and talented students to move more rapidly through the usual sequence of instruction. Petitioner claims that because nearly all eighth grade students will follow the same sequence of instruction in foreign language, regardless of their ability, there is no acceleration. Furthermore, petitioner claims that respondent's failure to provide a separate class for gifted and talented students violates 8 NYCRR "100.4(c).

Section 100.4(c) of the Commissioner's regulations requires that eighth grade students have an opportunity to take high school level courses, provided that they demonstrate readiness. A program is accelerated if it provides high school level course work to eighth graders who are ready to take it. Petitioner has not established in the record that the Accelerated Program offers a curriculum which is below high school level. The fact that nearly all eighth graders participate in the Acceleration Program does not establish this fact, or that the program is not accelerated. In an appeal to the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR "275.10; Appeals of Parrish, et al., 32 Ed Dept Rep 261; Application of Verity, 31 id. 485; Appeal of Singh, 30 id. 284). Petitioner has not met this burden.

In addition, 8 NYCRR "100.4(c) does not require the Acceleration Program to be offered only to the most academically gifted students and does not require that the program be offered as a separate honors class for such students. Accordingly, I disagree with petitioner that respondent's failure to provide a separate class for gifted students violates 8 NYCRR "100.4(c).

Petitioner claims that the Acceleration Program does not provide eighth grade students with above grade-level materials. Again, petitioner does not provide adequate evidence to support this claim. Instead, petitioner simply relies on the fact that nearly all eighth graders will participate in the Acceleration Program. Petitioner has not met the burden of establishing the facts upon which he seeks relief concerning this claim (8 NYCRR "275.10; Appeals of Parrish, supra; Application of Verity, supra; Appeal of Singh, supra).

Based on this record, I find that respondent has not acted arbitrarily, capriciously or illegally by establishing the Acceleration Program and that the program meets the requirements of 8 NYCRR "100.4(c).

I have examined petitioner's remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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