Appeal of L.T., on behalf of her daughter J.T., from action of the Board of Education of the Levittown Union Free School District regarding admission to kindergarten.

Decision No. 15,609

(July 13, 2007)

Ingerman Smith, L.L.P., attorneys for respondent, Jonathan Heidelberger, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the Levittown Union Free School District (“respondent”) to grant her daughter, J.T., permission to enter kindergarten in September 2007.  The appeal must be dismissed.

J.T. was born on January 14, 2003.  By letter dated March 27, 2006, petitioner requested that J.T. be tested to determine whether she was socially and academically qualified to be admitted to respondent’s kindergarten in September 2007 rather than September 2008 and that she be placed accordingly.  The assistant superintendent for instruction (“assistant superintendent”) advised petitioner that in accordance with Education Law and district policy, J.T. would not be admitted in kindergarten in September 2007.  By letter dated September 20, 2006 to the assistant superintendent, petitioner requested respondent’s final decision.  On October 20, 2006, petitioner met with the new assistant superintendent and was verbally informed that the district would not permit J.T. to be tested or admitted to kindergarten in September 2007.  This appeal ensued.  Petitioner’s request for interim relief was denied on March 15, 2007.

Petitioner alleges that J.T. is ready for kindergarten and is entitled to admission in September 2007.  Petitioner requests that I determine that J.T. is entitled to be tested to evaluate her readiness for admission to kindergarten in September 2007.

Respondent alleges that the appeal is untimely.  Respondent further contends that the district’s determination is consistent with statutory and case law, Commissioner’s decisions and respondent’s policy and is therefore neither arbitrary nor capricious.

Initially, I must address the reply submitted by petitioner.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of E.R., 45 Ed Dept Rep 487, Decision No. 15,389; Appeal of Ramroop, 45 id. 473, Decision No. 15,385; Appeal of C.R., 45 id. 303, Decision No 15,330).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of O’Brien, 44 Ed Dept Rep 43, Decision No. 15,092; Appeal of Spina, 43 id. 354, Decision No. 15,016).  The record reflects that on October 20, 2006, petitioner was, for the second time, verbally informed that the district would not permit J.T. to be tested, or admitted to kindergarten in September 2007.  This appeal was commenced on March 5, 2007, more than 30 days later.  Petitioner has provided no excuse for her delay.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, “[n]othing . . . shall . . . require a board of education to admit a child who becomes five years of age after the school year has commenced unless his birthday occurs on or before the first of December.”  Since J.T. will not be five until January 2008, it is apparent that respondent was acting within its legal authority in refusing her admission for the 2007-2008 school year (seeMatter of Sollitto, 31 Ed Dept Rep 138, Decision No. 12,595).  Having acted in accordance with Education Law §3202(1), respondent’s actions cannot be deemed to be arbitrary or capricious (Frost v. Yerazunis, et al., 53 AD2d 15). 

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, 31 Ed Dept Rep 138, Decision No. 12,595).

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

THE APPEAL IS DISMISSED.

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