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Decision No. 14,336

Appeal of DAWN H., on behalf of her daughter, ALEXANDRA, from action of the Board of Education of the Lynbrook Union Free School District regarding academic placement.

Decision No. 14,336

(April 12, 2000)

Erhlich, Frazer & Feldman, Esqs., attorneys for respondent, James H. Pyun, Esq., of counsel

MILL, Commissioner.--Petitioner challenges the selection process approved by the Board of Education of the Lynbrook Union Free School District ("respondent") to determine eligibility for its eighth grade Regents Earth Science course. She also challenges the district’s refusal to place her daughter, Alexandra, in the course. The appeal must be dismissed.

During the 1997-98 school year, upon the recommendation of a superintendent’s task force comprised of district administrators, teachers and parents, the district adopted criteria for student selection to honors classes. The criteria for admission to the eighth grade Regents Earth Science course included: a teacher’s recommendation of at least 90 on a scale of 60 to 100; an IQ test score of at least 120; grades of 90 or better at mid-year in seventh grade science and in sixth grade science; and scores at or above the 90th percentile on the reading, math and science components of a standardized test. An optimal score amounted to 660 points.

During the 1997-98 school year, Alexandra was a seventh grade student at Lynbrook Middle School. In the spring of 1998, she was evaluated for admission into the district’s eighth grade Regents Earth Science class. Alexandra received a teacher recommendation score of 60, an IQ score of 97, a mid-year grade of 92 in seventh grade science and an 85 in sixth grade science. She scored in the 75th percentile on the standardized reading test, in the 70th percentile on the math test and in the 84th percentile on the science test. Her total score was 563. Based on this score, Alexandra was not selected for the class.

Alexandra was informed of this decision on June 15, 1998. Petitioner then wrote a series of letters to various school administrators in an effort to have Alexandra admitted to the class. Among other things, she noted Alexandra’s involvement in extracurricular science activities and argued that her teacher’s recommendation was too low. By letter dated August 20, 1998, respondent’s superintendent advised petitioner that the middle school principal had spoken with Alexandra’s science teacher about her recommendation. The teacher adhered to her rating of 60, which indicated that Alexandra did not belong in the Earth Science class. The superintendent also explained that Alexandra could not be placed in the class because her overall score was too low.

By letter dated September 3, 1998, the middle school principal, Leesa Terdiman, responded to petitioner’s continuing request to place her daughter in the eighth grade Regents Earth Science class. She explained the rating system used by teachers and the other criteria used to evaluate students. She stated that Alexandra’s teacher felt that she had "difficulty with the higher level thinking skills" and would struggle if admitted to the Earth Science class. She also explained that Alexandra did not meet the other criteria for placement in Earth Science. This appeal ensued. Petitioner’s request for interim relief was denied on October 1, 1998.

Petitioner contends that Alexandra’s teacher gave her a recommendation that was inconsistent with Alexandra’s performance in class and extracurricular activities. She claims that the teacher consistently awarded Alexandra good grades and wrote favorable comments on her report card. She maintains that the policy for admitting students to eighth grade Regents Earth Science is arbitrary and capricious. Petitioner further asserts that the standards for teacher recommendations are vague and that the recommendations are used as a pretext to exclude students for reasons other than academic ability. She requests that Alexandra be admitted to Regents Earth Science and that respondent adopt an honors placement program that ensures that all students are placed appropriately.

Respondent contends that it used acceptable criteria for determining student eligibility for eighth grade Regents Earth Science and applied the criteria consistently and equitably. Respondent notes that Alexandra’s science teacher taught her for almost two years and therefore had a sound basis for assessing her abilities. Respondent also states that Alexandra’s total score was significantly lower than those of students admitted to the class, and that even a substantial increase in the teacher rating would not make her eligible. Finally, respondent asserts that the appeal has become moot because, after serving the petition, petitioner enrolled Alexandra in private school.

The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exist or a controversy which subsequent events have laid to rest (Appeal of June D., 38 Ed Dept Rep 596, Decision No. 14,101; Appeal of Kainz, 38 id. 339, Decision No. 14,049). Since Alexandra no longer attends school in respondent's district, the matter is moot (Appeal of a Student with a Disability, 39 Ed Dept Rep 223, Decision No. 14,221).

Even if the appeal had not become moot, I would dismiss it on the merits. 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, boards have the power to place students in particular classes (Appeal of Reid, 32 Ed Dept Rep 587, Decision No. 12,922; Appeal of Kendrick, 32 id. 464, Decision No. 12,887). 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 Reid, supra; Appeal of Kendrick, supra).

Based on my review of the record, I find that respondent has not acted arbitrarily or capriciously. I recently examined respondent’s criteria for selection to honors classes at the secondary level and I found respondent’s use of teacher recommendations, standardized test scores, IQ scores, and course grades to be rational (Appeal of Julio I., 39 Ed Dept Rep , Decision No. 14,295).

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which she seeks relief (8 NYCRR "275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioner has not met her burden of showing that respondent treated Alexandra unfairly. The record supports the determination that Alexandra simply did not meet the established criteria for placement in the eighth grade Regents Earth Science class.

In light of this disposition, I will not address the parties’ remaining contentions.