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Decision No. 14,083

Appeal of DANIEL PFEFFER, on behalf of ELIANA MARGO PFEFFER, from action of the Elwood Union Free School District regarding admission into a gifted program for gifted pupils.

Decision No. 14,083

(March 2, 1999)

Ehrlich, Frazer & Feldman, attorneys for respondent, Christine M. La Place, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a determination by the Elwood Union Free School District ("respondent") that his daughter, Eliana Margo Pfeffer, is not eligible to participate in the gifted education program offered by the Plainview-Old Bethpage Central School District ("Plainview"). The appeal must be sustained in part.

Petitioner is a resident of respondent district. His daughter, Eliana, is a third-grade student who attends a non-public school located in Plainview. By letter to respondent's Superintendent dated May 14, 1998, petitioner requested that his daughter be enrolled in Plainview's program for gifted pupils pursuant to Education Law "3602-c(1)(a). Respondent's Director of Special Education and Pupil Personnel Services, Patricia Godek, denied petitioner's request by letter dated May 28, 1998. Ms. Godek stated in her letter that respondent did not provide a gifted program for its students enrolled in Grades K-6, and Eliana was therefore ineligible under "3602-c to take part in the gifted education program offered by Plainview.

Petitioner replied to Ms. Godek by letter dated June 7, 1998. He enclosed a copy of a letter dated July 18, 1983 from Robert D. Stone, then Counsel to the State Education Department, which stated Mr. Stone's conclusion that, under Education Law " 3602-c, a student who attends a nonpublic school located in a district other than the student's district of residence, and who is otherwise eligible for dual enrollment in a program for gifted pupils offered by the district of attendance, is not rendered ineligible because the student's district of residence does not offer such a program. Ms. Godek responded by letter dated June 16, 1998, reiterating respondent's view that Eliana was ineligible to take part in the gifted education program offered by Plainview. This appeal ensued.

Petitioner asserts that Eliana is eligible to participate in Plainview's gifted education program pursuant to "3602-c, because she attends a non-public school located in a school district where such a program is offered. Petitioner seeks a determination of Eliana's eligibility for the dual enrollment program, and an order directing respondent to apply immediately for Eliana's inclusion in Plainview's program for gifted pupils and directing Eliana's admission to that program.

Respondent contends that Eliana is ineligible for participation in Plainview's program because respondent does not provide a gifted program in its own district, and that its determination is reasonable and consistent with the Education Law. Respondent further alleges that the petition fails to state a cause of action.

Chapter 740 of the Laws of 1982 added the statutory provisions regarding a gifted education program to the Education Law. A new Article 90 was added, outlining the powers of the State Education Department with respect to gifted pupils. A new section 2-b was added to Education Law "3204, empowering the governing boards of school districts to determine the circumstances wherein instruction would be given to meet the special needs of gifted pupils. Provisions and definitions regarding services for gifted students were also added to "3602-c. In pertinent part, " 3602-c was amended to state:

  1. Definitions...
  1. "Services" shall mean instruction in the areas of gifted pupils...and counseling, psychological and social work services related to such instruction provided during the regular school year for pupils enrolled in a nonpublic school located in a school district, provided that such instruction is given to pupils enrolled in the public schools of such district.

...

  1. Boards of education of all school districts of the state shall furnish services to pupils who are residents of this state and who attend nonpublic schools located in such districts, upon the written request of the parent ...filed with the board of education of the school district in which the parent ...resides...Such school district shall contract with the school district in which the nonpublic school attended by the pupil is located, for provision of services pursuant to this section.

...

  1. Boards of education of districts providing services to nonresident pupils shall be entitled to recover tuition from the district of residence of such pupils...

(Emphasis added).

In interpreting a statute, the plain meaning of the words govern (New York Jurisprudence 2d, Statutes, "102) and a court must give effect to the plain meaning of the words and apply them in accordance with their express terms (Judge Rotenberg Educational Center v. Maul, 91 NY2d 298; Doctors Council v. New York City Employees' Retirement System, 71 NY2d 669; Zaldin v. Concord Hotel, 48 NY2d 107). Absent ambiguity, courts may not resort to rules of construction to broaden the scope and application of a statute or to declare the intent of the law when the words are unequivocal (Matter of Raritan Development Corp. v. Silva, 91 NY2d 98 ["Raritan"]). When the statutory language is doubtful or ambiguous, inquiry into the legislative intent and history is appropriate (Raritan, supra; Matisof v. Dobi, 90 NY2d 127; Lloyd v. Grella, 83 NY2d 537).

The only school district referred to in "3602-c(1)(a), defining "services," is the school district in which a nonpublic school is located. Therefore, when subsequently referring to "such district" in the same subsection, regarding gifted services being provided in "such district," the statute can only be referring to the school district in which the nonpublic school is located. Although respondent interprets "such district" to mean the district of residence, the term "such district" cannot reasonably be interpreted to refer to the district of residence, because the term district of residence is never used earlier in this subparagraph or in preceding paragraphs of the statute. Respondent alleges upon information and belief that "this provision has been interpreted to mean that children who reside in the District and attend nonpublic schools receive the same benefits in the area of gifted instruction" as resident children in the district, but respondent provides no support for this contention.

Similarly, the first sentence of subparagraph (2) mandates that boards of education of all school districts of the state "shall furnish services to pupils who are residents of this state and who attend nonpublic schools located in such school districts upon the written request" of the parent or guardian (emphasis added). The phrase "such districts" in this first sentence again can only be interpreted as referring to the school districts of location of the nonpublic schools. Pursuant to the second sentence of paragraph (2), the parents' requests for such services are filed with the school district of residence, and "such district" [this term follows specification of the district of residence in this particular instance] shall contract with the school district of location to provide the services.

In my view, the plain meaning of the statute is clear on its face. The unambiguous statutory language mandates that, since the school district in which the nonpublic school is located has a program for gifted pupils (thus fulfilling the definitional requirements of subsection [1][a]), the school district of location is mandated per "3602-c(2) to provide "services" to pupils who are residents of the state and who attend nonpublic schools located within that school district, upon request of the parent. The mandates of subsections (1) and (2) are dependent upon the school district of location providing gifted services to its students, not the school district of residence. In its opposition to the request for stay, respondent concedes that, although it does not provide programs for gifted pupils, the school district of location, Plainview, does provide such a program.

I am constrained to apply the law as it is clearly written. I, therefore, determine that petitioner's daughter is eligible for consideration for participation in the program for gifted pupils offered by Plainview in accordance with "3602-c. The record is insufficient, however, to grant petitioner's request for an order mandating her inclusion in that program at this time.

The definition of "gifted pupils" in Education Law "3602-c(1)(b) establishes criteria including "high performance capability," and "exception potential in [specified] areas," and encompasses children "who require educational programs …beyond those normally provided by the regular school program in order to realize their full potential" (see also same language in Education Law "4452[1][a] and the Commissioner's regulations at 8 NYCRR 142.2). Education Law "4452 discusses plans for the identification of gifted children, and provides that participation in a program for gifted pupils commences through the referral of a child by a parent, teacher, etc. Section 4452 additionally provides that there may be diagnostic tests or other evaluation mechanisms related to the program objectives of the district, in order to determine a pupil's eligibility.

The record in this appeal contains no evidence of such an evaluation, other than petitioner's assertions that Eliana has a full-scale IQ exceeding 150. Respondent or Plainview should be permitted to conduct the type of evaluations and identification procedures contemplated in "4452 to determine whether petitioner's daughter meets the eligibility criteria for Plainview's program.

THE APPEAL IS SUSTAINED IN PART.

IT IS ORDERED that respondent make arrangements for petitioner's daughter to be evaluated for participation in the Plainview gifted education program, and to contract with Plainview for such services in accordance with "3602-c(2) if Eliana is determined to be appropriate for inclusion on the Plainview program.

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