Appeal of I.A., on behalf of his daughter S.A., from action of Craig W. Allwes, Assistant Superintendent of the Sweet Home Central School District regarding universal pre-kindergarten.

Decision No. 14,729

(May 31, 2002)

Gross, Shuman, Brizdle & Gilfillan, P.C., attorneys for respondent, Robert J. Feldman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of Craig W. Allwes, Assistant Superintendent of the Sweet Home Central School District, ("respondent") that his daughter, S.A., is ineligible to continue participation in the district's universal pre-kindergarten program. The appeal must be dismissed.

Petitioner resides in the Sweet Home Central School District. The school district operates a universal pre-kindergarten program pursuant to Education Law "3602-e. Petitioner sought to enroll his daughter in the district's universal pre-kindergarten program for the 2001-2002 school year. Children are eligible to attend the district's pre-kindergarten program pursuant to Education Law "3602-e(1)(c) which provides:

'Eligible children' shall mean resident children who are four years of age on or before December first of the year in which they are enrolled or who will be otherwise first eligible to enter public school kindergarten commencing with the following school year.

Petitioner's daughter was born on December 4, 1997 and, therefore, was not four years of age on or before December 1, 2001. Nor was petitioner's daughter "otherwise eligible to enter public school kindergarten commencing with the following school year", because the district only permits children who have attained the age of five on or before December 1 to enter kindergarten (Education Law "3202[1]). Consequently, petitioner's daughter was not eligible pursuant to Education Law "3602-e(1)(c) to attend the district's pre-kindergarten program during the 2001-2002 school year.

In the spring of 2001, respondent informed petitioner of his daughter's ineligibility to attend the district's pre-kindergarten program in the 2001-2002 school year. Petitioner asserts that, despite this conversation, the district mailed him an application for the pre-kindergarten program. Upon submission of the application, petitioner received a screening schedule dated May 1, 2001 for S.A., who, thereafter, participated in the screening on May 15, 2001. By letter dated August 13, 2001, respondent notified petitioner of S.A.'s acceptance into the district's pre-kindergarten program.

Petitioner's daughter began attending pre-kindergarten on September 5, 2001. Petitioner submitted proof of S.A.'s birth date within 7 days of the first day of attendance, as required by the district. On November 2, 2001, respondent's staff notified petitioner by telephone that his daughter was not eligible to continue in the pre-kindergarten program.

On November 6, 2001, petitioner telephoned respondent to discuss the matter. Respondent confirmed that petitioner's daughter was not eligible to continue in the district's pre-kindergarten program as she did not meet the program's age requirement. Petitioner appeals respondent's determination and seeks an order directing his daughter's readmission to the district's pre-kindergarten program.

Petitioner does not dispute that his daughter fails to meet the statutory age requirement for the district's universal pre-kindergarten program. Petitioner's sole basis for relief is his assertion that, because district staff erroneously permitted his daughter to begin attendance in the 2001-2002 program, respondent should be required to continue her attendance.

Petitioner cites no legal basis for the relief sought. Indeed, the fact that respondent and/or other district staff erroneously permitted petitioner's daughter to enroll in the school district's universal pre-kindergarten program is not binding upon the district and may not provide a basis for continuing an action that is not in compliance with law (Appeal of Pope, 40 Ed Dept Rep ___, Decision No. 14,530; Appeal of Turner, 40 id. 156, Decision No. 14,447; Appeal of Whitaker, 33 id. 59, Decision No. 12,974).

Having found no merit to petitioner's substantive claim, I need not address respondent's other assertions.

THE APPEAL IS DISMISSED.

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