MILLS, Commissioner.--Petitioner appeals a determination of the Board of Education of the Horseheads Central School District ("respondent") denying his daughter admission to kindergarten. The appeal must be dismissed.

In mid-September 2000, petitioner moved his family to Horseheads and attempted to register his two children in respondent"s schools. Petitioner"s eleven year-old son was permitted to register for the sixth grade but his four year-old daughter, born December 14, 1995, was not admitted.

Prior to relocating to Horseheads, petitioner and his wife inquired regarding respondent"s admission policy for kindergarten. By letter dated July 10, 2000, respondent"s superintendent informed petitioner"s wife that S.H., whose birthday is after the December first cut-off date for admission, would nevertheless be allowed to enroll in kindergarten upon the completion of certain specified paperwork if she was previously fully enrolled in a kindergarten program in Connecticut and could "pass" respondent"s placement tests. Enclosed with respondent"s July 10, 2000 letter was a release of information form, seeking the name, address and telephone number of the Connecticut kindergarten and a New Entrant"s Form. In reply to petitioner"s August 30, 2000 letter requesting an official response to his request to admit S.H., the superintendent indicated that respondent would follow its basic rule in S.H."s case: that no student who will turn five years old after December first will be accepted into its kindergarten program because the conditions stated in his letter of July 10, 2000 had not been met.

On September 20, 2000, respondent"s school psychologist evaluated petitioner"s daughter and found her to have average cognitive abilities and visual-motor skills and low average to high average academic abilities. On September 27, 2000, the superintendent explained that he would consider admitting petitioner"s daughter and another underage student if they scored at the "gifted" 98 percentile on the district"s placement test indicating the ability to "skip" a grade. Petitioner"s daughter did not score at that level and was not admitted to respondent"s kindergarten.

On September 28, 2000, petitioner sent a letter to the superintendent indicating his intention to appeal the superintendent"s decision and subsequently appeared before respondent on October 10, 2000 to request his daughter"s admission. By letter dated October 11, 2000, respondent denied petitioner"s request based solely on the fact that his daughter was four years of age and would not reach the age of five on or before December 1, 2000. Respondent declined to consider petitioner"s request for admission of his daughter in September 2001 because no determination had yet been made by the school district administration for the 2001-2002 school year. This appeal ensued. Petitioner"s request for interim relief was denied on December 4, 2000.

Petitioner contends that he relied, to his detriment, upon the terms of the superintendent"s July 10, 2000 letter and that respondent"s failure to follow those terms constitutes a breach of contract. Petitioner also contends that respondent breached its duty by declining to determine his daughter"s future in the district beyond the 2000-2001 school year; failing to include an analysis of the facts and its rules and policies in reaching its decision in this case; and failing to adopt, implement and communicate a reasonable rationale and consistent policy regarding transfer students from downstate New York and from states such as Connecticut that apply a different birthday rule.

Respondent denies breaching any duty to petitioner and contends that its decision was based solely upon his daughter"s age and Education Law "3202, which does not require school districts to admit a child who becomes five years of age after December first. Respondent argues that communications between parents and school administrators cannot supersede Education Law "3202, and that the July 10 letter did not create a contract with petitioner who never met the conditions it set forth.

Education Law "3202(1) provides in pertinent part that:

The language of Education Law "3202(1) that permits a board of education to refuse admission to a child who has not attained the age of five by December first is clear and unambiguous. It is apparent, therefore, that respondent was acting within its legal authority in refusing admission to petitioner"s daughter (Appeal of Tomassetti, 39 Ed Dept Rep 513, Decision No. 14,296; Matter of Sollitto, 31 id. 138, Decision No. 12,595). Although the superintendent"s September 27, 2000 letter indicated that he considered exercising discretion in admitting petitioner"s daughter and another underage child had they scored in the "gifted" 98 percentile on the district"s placement test, respondent was not required by law to do so. While a board of education may, in its discretion, admit children at an earlier age, a parent cannot compel such an exercise of discretion (Matter of Sollitto, supra). Moreover, there is nothing in the record to show that respondent has actually admitted underage children in exception to the December first rule. Having acted in accordance with Education Law "3202(1), respondent"s actions cannot be deemed to be arbitrary or capricious (Frost v. Yerazunis, 53 AD2d 15).

I have considered petitioner"s remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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