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Decision No. 16,496

 

 Appeal of I.L., on behalf of her son M.L., from action of the New York City Department of Education regarding educational placement.

Decision No. 16,496

(July 8, 2013)

Law Office of Anton Papakhin, P.C., attorneys for petitioner, Anton Papakhin, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, John Buhta, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the determination of the New York City Department of Education(“respondent”) not to offer her son, M.L., placement in a second grade gifted and talented program. The appeal must be dismissed.

Respondent offers a gifted and talented program of instruction in its schools and uses a standard, city-wide assessment and identification process for pre-kindergarten through second grade students applying to these programs. For the 2011-2012 school year, respondent identified eligible applicants for the program using the Otis-Lennon School Ability Test (“OLSAT”) and the Bracken School Readiness Assessment (“BSRA”). The record indicates that the OLSAT, developed and published by a third-party vendor, is an assessment of abilities which are important to a child’s successful learning in a school environment. The OLSAT is administered in several test levels, each designed, standardized and validated for testing schoolchildren in specific age ranges. This allows respondent to interpret OLSAT results by comparing a student’s score to students of the same age in a standardized group.

Accordingly, all applicants to respondent’s gifted and talented program for the 2011-2012 school year were administered the OLSAT according to age using the following guidelines:

  • Students born in 2006 were tested using Level A(40);
  • Students born in 2005 were tested using Level A(60);
  • Students born in 2004 were tested using Level B; and
  • Students born in 2003 were tested using Level C.

The OLSAT was administered on weekends in January and February 2011 in accordance with the following student-teacher ratios:

  • Students born in 2006 were tested at a maximum ratio of 1:1 (1 student: 1teacher/proctor);
  • Students born in 2005 were tested at a maximum ratio of 5:1 (5 students: 1teacher/proctor);
  • Students born in 2004 were tested at a maximum ratio of 10:1 (10 students: 1teacher/proctor);
  • Students born in 2003 were tested at a maximum ratio of 20:1 (20 students: 1teacher/proctor).

In addition to the OLSAT, respondent administers the BSRA to all program applicants. According to the record, the BSRA is designed to assess the child’s concept knowledge and receptive skills for school readiness. The applicant’s scores on the OLSAT and BSRA are combined to generate a total percentile rank in comparison to other students of the same age. The OLSAT is weighted 75% and the BSRA is weighted 25% to generate a total gifted and talented percentile rank. In order to be eligible for the first grade gifted and talented placement for the 2011-2012school year, a student’s combined OLSAT Level A (60) and BSRA score must have been at or above the 90th percentile in comparison to other students of the same age. In order to be eligible for the second grade gifted and talented placement for the 2011-2012 school year, a student’s combined OLSAT Level B and BSRA score must have been at or above the 90th percentile in comparison to other students of the same age.

M.L. was born in 2005. During the 2010-2011 school year, M.L. attended first grade at the Big Apple Academy, a private school in Brooklyn, New York. M.L. successfully completed first grade in June 2011.

On October 12, 2010, petitioner applied via respondent’s website for M.L. to be assessed for participation in respondent’s gifted and talented program. The on-line request automatically selected first grade as the grade level for which M.L. would qualify, based on his birth date. While the parties disagree as to the information provided to petitioner via respondent’s on-line request form, I not that the record contains a copy of  respondent’s “Gifted & Talented Program Test Information Handbook 2010-2011: For students born in 2005.” On page one, the handbook sets forth a table of important dates for “[a]pplicants who were born in 2006, 2005, 2004 + 2003 1st 2nd 3rd (applying for K, , , + grade placement, respectively, in the 2011-2012 school year).” Therefore, in accordance with its gifted and talented program testing guidelines, respondent arranged for M.L. to be administered the OLSAT A(60) with a 5:1 student/teacher ratio.

On February 12, 2011, M.L. was assessed and qualified for placement in respondent’s gifted and talented program upon his enrollment in respondent’s schools in September2011. By letter dated April 2011, petitioner was notified that M.L. had met the criteria for entry into its gifted and talented program beginning in the 2011-2012 school year. By letter dated June 2011, petitioner was advised that M.L. was accepted into the gifted and talented program at P.S. 77. Although both letters were silent as to thegrade in which M.L. was being placed, petitioner apparently spoke with and exchanged emails with respondent’s Director of Elementary School Admissions (“director”) in July 2011in which she questioned M.L.’s placement in a first grade gifted and talented class.

On August 29, 2011, petitioner received an email from the director stating that M.L. was only eligible for placement in the first grade gifted and talented class because he was born in 2005.

By letter dated September 5, 2011, petitioner requested that respondent’s Chancellor intervene and ensure M.L.’s placement in a second grade gifted and talented class.

By letter dated September 7, 2011, respondent’s counsel replied to petitioner’s letter to the Chancellor, stating that M.L. would only qualify for placement in a first grade gifted and talented class due to his birthdate, age and also because he had only completed the first grade assessment for the gifted and talented program. Petitioner was also informed that Chancellor’s RegulationA-101, which provides that a student entering the New York City Public School System for the first time generally will be registered according to his or her last grade placement, is not applicable to the gifted and talented program, for which age-appropriate assessments are required. Counsel also noted that M.L. did not take the second grade assessment for that program and, therefore, did not meet the eligibility requirement for placement in a second grade gifted and talented class. This appeal ensued. 3

Petitioner alleges that respondent’s website

automatically enters a student’s grade based on his age and

that she did not voluntarily apply for a first grade gifted

and talented assessment and placement for M.L. Petitioner

asserts that Chancellor’s Regulation A-101 does not state

that it applies only to regular public school programs and

not to the gifted and talented program. Petitioner alleges

that nothing indicates that a child born in 2005 is

ineligible for placement in second grade in the gifted and

talented program. Petitioner maintains that M.L. did not

take the second grade assessment for the gifted and

talented program due to respondent’s failure to recognize

that he had already completed first grade. Petitioner

requests that I order respondent to place M.L. in a second

grade gifted and talented class.

Respondent alleges that the appeal is untimely and

that the petition fails to state a cause of action.

Respondent maintains that its actions were in all respects

legal, proper, reasonable and in conformity with all

applicable laws and regulations.

Respondent asserts the appeal must be dismissed as untimely. 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 Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No.15,879).

Respondent contends that M.L. took the OLSAT Level A(60) on February 12, 2011 and therefore the statute of limitations expired on March 14, 2011. However, according to the record, petitioner was not aware that M.L. was placed in a first grade gifted and talented class until July 2011. Upon receipt of written notice from the director dated August 29, 2011, stating that M.L. was only eligible for first grade placement, petitioner appealed to the Chancellor by letter dated September 5, 2011. By letter dated September 7, 2011, petitioner was notified, on behalf of the Chancellor, that M.L. qualified for placement in first grade gifted and talented class. Petitioner commenced her appeal within thirty days on September 20,2011. Therefore, under these circumstances, I decline to dismiss the appeal as untimely.

However, the appeal must be dismissed as moot. Petitioner initiated this appeal but did not seek interim relief in her petition. Instead, petitioner enrolled M.L.in a regular second grade class in respondent’s district in the 2011 – 2012 school year. As the school year has ended, the appeal is academic.

Even if the appeal was not moot, it would also be dismissed on the merits. A board of education possesses 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 should warrant(Education Law §§1709[3] and 2554[1]). It has been repeatedly held that the Commissioner of Education 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 T.K., 47 Ed Dept Rep 234, Decision No.15,679; Appeal of Alexandreena D., 30 id. 203, Decision No.12,433; Appeal of DiMicelli, 28 id. 327, Decision No.12,125; Appeal of Henry Bartowski, 25 id. 52, Decision No.11,495).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

Respondent asserts that Chancellor’s Regulation A-101sets forth its general policies for the admission, transfer and discharge of students in the New York City Public School System. Respondent explains that, according to Chancellor’s Regulation A-101, “a student whose sixth birthday falls within the calendar year of admission will normally be admitted to the first grade,” citing Chancellor’s Regulation A-101 I(A)(2)(a). Respondent’s director avers that, as a result, for the 2011-2012 school year, a student born in 2005 (such as M.L.) would typically be placed in first grade. Respondent’s director also avers that while Chancellor’s Regulation A-101 further provides that a student entering respondent’s school system from another school system will be registered according to his or her last grade placement at his or her previous school ,the regulation does not guarantee placement in, and is not applicable to, gifted and talented programs for which age appropriate entrance assessments are required. Rather, Chancellor’s Regulation A-101 secures a student’s right to placement only with respect to its regular, general education public school program. Petitioner has not demonstrated that this interpretation of Chancellor’s

Regulation A-101 is arbitrary or capricious. Therefore, I will not substitute my judgment for that of respondent on this ground.

Moreover, respondent has adopted standardized criteria for admission to its gifted and talented program. As set forth above, applicant’s combined OLSAT and BSRA scores a reused, in comparison to other students of the same age, to determine if a student is eligible for the gifted and talented program. In accordance with respondent’s policy, students, such as M.L., applying for the program for the2011-2012 school year who are born in 2005 were administered the OLSAT Level A(60). The administration and scoring of the OLSAT by age without reference to grade is a proper use of this assessment because it permits respondent to interpret OLSAT results by comparing a student’s score to students of the same age in a standardized group. It is not premised upon completion of a particular grade’s curriculum, but instead, assesses learning characteristics in relation to other pupils of similar age. If eligible, such student is placed in a gifted and talented program with other similarly eligible students at the same level to presumably receive higher level, enriched instruction. Given the purpose and premise of the assessments, I decline to substitute my judgment for that of respondent in placing

M.L. in a first grade gifted and talented program rather than a second grade gifted and talented program, notwithstanding the fact that, based on curriculum completion M.L. qualified for a regular second grade placement. Moreover, petitioner has not demonstrated that the instruction M.L. would receive in a gifted and talented first grade placement would be inappropriate for M.L. Finally, because M.L. never took the OLSAT Level B assessment for placement into the second grade gifted and talented program, he did not meet the eligibility requirements for placement therein.

Petitioner has not demonstrated that respondent’s process and criteria for placement in its gifted and talented program, on its face or as administered, is illegal, arbitrary or capricious. Therefore, I will not substitute my judgment for that of respondent.

THE APPEAL IS DISMISSED.

END OF FILE