Appeal of R.L.R.K, JR., on behalf of his son R.E.L.K., from action of the Board of Education of the City School District of the City of Oneida and Superintendent Ronald Spadafora regarding educational placement.

Appeal of R.L.K., JR., on behalf of his son R.E.L.K., from action of the Board of Education of the City School District of the City of Oneida and Superintendent Ronald Spadafora regarding educational placement.

Appeal of R.L.R.K., JR., on behalf of his son R.E.L.K., from action of the Board of Education of the City School District of the City of Oneida and Superintendent Ronald Spadafora regarding educational placement.

Decision No. 16,893

(April 4, 2016)

Ferrara Fiorenza P.C., attorneys for respondents, Elizabeth H. Marris, Colleen W. Heinrich, and Joseph J. Bufano, Esqs., of counsel

ELIA, Commissioner.--In three separate appeals, petitioner challenges a determination of the Board of Education of the City School District of the City of Oneida (“board”) and Superintendent Ronald Spadafora (collectively “respondents”) declining to award credit by examination and to place his son in an Algebra I class for the 2014-2015 school year with the option of enrolling him in both Algebra II/Trigonometry and Geometry for the 2015-2016 school year.  Because the appeals present similar issues of fact and law, they are consolidated for decision.  The appeals must be dismissed.

During the 2013-2014 school year, petitioner’s son, R.E.L.K. (the “student”), was a sixth-grade student in the district.  According to the record, the district has a policy by which its high school students may earn course credit by examination (“Course Credit Without Course Enrollment”).  On April 28, 2014, the student sought permission from the middle school principal to pursue credit by examination for the Algebra I Regents Examination on June 20, 2014.[1]  According to respondents, the assistant superintendent informed the student that it would not be educationally beneficial for the student to pursue credit by examination because he was not in eighth grade and therefore he could not receive diploma credit pursuant to §100.4(d) of the Commissioner’s regulations. 

On May 7, 2014, petitioner requested that the student be allowed to take the Integrated Algebra exam for credit on June 20, 2014, and on May 8, 2014, the student filed a Course Challenge form.  On May 20, 2014, petitioner addressed the board regarding his request for the student to challenge the Integrated Algebra exam for credit.  He also requested that the student be awarded the status of Major Achiever pursuant to respondents’ Policy #8041 (“Education of Major Achievers”) (“Major Achievers” policy).  On May 21, 2014, the superintendent denied petitioner’s request, explaining that the district has never allowed sixth graders to sit for the Integrated Algebra Regents examination, and that the proper course would be for the student to accelerate an entire grade level.  The superintendent also denied petitioner’s request for Major Achiever status because the district no longer offers gifted programs due to reductions in State Aid.

On May 27, 2014, petitioner requested that the superintendent allow the student to challenge the Integrated Algebra and Algebra II/Trigonometry Regents examinations in August 2014, and be declared a Major Achiever pursuant to the Major Achievers policy.  On June 9, 2014, the superintendent denied petitioner’s requests and advised that the board would be available to hear petitioner’s appeal. 

On June 10, 2014, petitioner appealed the superintendent’s decisions to the board.  The board decided to allow the student to sit for the Integrated Algebra exam in June, did not consider petitioner’s claims regarding the Algebra II/Trigonometry exam because it was not offered in August 2014, and did not address the Major Achievers policy. 

On June 20, 2014, the student sat for the Integrated Algebra exam and received a score of 90 out of 100.  The student subsequently took an oral examination administered by a district high school mathematics teacher, the district’s Academic Intervention Services (“AIS”) teacher, and the district’s mathematics teacher who teaches Algebra classes in the middle school and high school.  The assistant superintendent was also present for observation.  According to respondents, the examiners and assistant superintendent determined that the student did not possess the mathematical, educational, social, and emotional maturity to forego class instruction in Algebra I in favor of receiving credit by examination.  According to respondents, although the student gave a sufficient number of correct answers to technically pass the oral examination and seemed to grasp some general concepts, the examiners and assistant superintendent determined that the student was largely reciting concepts he had memorized rather than deriving solutions mathematically, that he did not have a sufficient vocabulary to express his responses, and that he lacked the required knowledge of mathematical terms, among other things.  As a result, the superintendent decided that the student would achieve the most educational benefit from taking the Algebra I class rather than receiving credit by examination.  According to respondents, the superintendent’s determination was also based on the observations of the student’s classroom teachers.

On June 23, 2014, petitioner made a request to the superintendent to allow the student to challenge the Geometry Regents examination in August 2014,[2] be declared a Major Achiever, and in the fall of 2014, be enrolled in a higher-level mathematics class and a Regents science class. 

By letter dated June 30, 2014, the superintendent denied petitioner’s requests for the student to be declared a Major Achiever, to challenge the Geometry Regents examination for credit in August 2014, and to be enrolled in a higher-level mathematics class and a Regents science class in the fall of 2014.  The letter explained that, as previously mentioned, the district no longer offers Major Achiever or Gifted Programming due to budget constraints, but that the district does allow consideration for grade-level advancement, if appropriate.  The letter further explained that it would be in the student’s best interest to take the Algebra I class in seventh grade (the 2014-2015 school year); to take both Geometry and Algebra II/Trigonometry classes in eighth grade (the 2015-2016 school year) and take both corresponding exams in June 2016; and to take the Pre-Calculus course in ninth grade (the 2016-2017 school year).  According to respondents, Algebra I precedes and forms a basis for Geometry so if the student was not prepared to skip instruction in Algebra I, he was not prepared to skip instruction in Geometry.

At a July 1, 2014 board meeting, petitioner appealed all of the superintendent’s decisions.  According to respondents, the board thoroughly analyzed the student’s past academic performance, his teachers’ and examiners’ recommendations, and its own observations of him, and denied petitioner’s appeals.  The board also considered the lack of transportation between the middle and high schools for the purpose of accelerated classes during the 2014-2015 school year, as well as its Major Achievers policy, which had not been used by the district in eight years due to budget constraints.   The board supported the plan to place the student in the Accelerated Algebra I class for seventh grade (the 2014-2015 school year) and then to place him in both Geometry and Trigonometry classes for eighth grade (the 2015-2016 school year), for which the student would be able to earn high school diploma credit.  The student would also begin taking Regents-level science classes in the 2015-2016 school year as an eighth-grader.  Alternatively, the board approved the acceleration of the student by one year so that he would be in eighth grade in the 2014-2015 school year, during which he would still take Algebra I but could also take a Regents-level science class and receive diploma credit for these courses.  The first appeal (Appeal No. 20040) (“Appeal I”) ensued and petitioner’s request for interim relief was denied on August 12, 2014.

For the 2014-2015 school year, the student was enrolled in Algebra I pursuant to the board’s July 1, 2014 determination.  On September 19, 2014 and October 6, 2014, petitioner requested a written determination from the superintendent that the student had not successfully challenged the Algebra I course through credit by examination.  By email dated October 8, 2014, the superintendent explained that, while the student had passed both the written and oral examinations for Integrated Algebra, he met the assessment requirement, but could not receive diploma or high school credit pursuant to the Commissioner’s regulations (8 NYCRR §100.4).  The superintendent further explained that the committee that conducted the oral examination recommended that the student take the Algebra I course in the 2014-2015 school year.  On October 15, 2014, petitioner again requested that the board allow the student to challenge the Geometry Regents examination and the Algebra II/Trigonometry Regents examination on their January 2015 testing dates.  On October 28, 2014, petitioner appealed to the board in writing.  On November 7, 2014, the superintendent and assistant superintendent met with petitioner and explained that his requests were the same as those which had already been denied, and that the student would continue to follow the educational plan determined by the administration and the board.  On November 24, 2014, the superintendent notified petitioner that the board declined to entertain petitioner’s request for reconsideration of its determination.  The second appeal (Appeal No. 20135) (“Appeal II”) ensued and petitioner’s request for interim relief was denied on January 27, 2015.

According to respondents, following the commencement of Appeal II, the superintendent and assistant superintendent attempted to work with petitioner to achieve a resolution in the student’s best interest.  They proposed the following: if the student were to succeed in the Algebra I class during the 2014-2015 school year, he could be accelerated into both Geometry and Algebra II/Trigonometry courses for the 2015-2016 school year, and then could be given a chance to challenge the district’s Pre-Calculus examination for local credit, since the student took an online Pre-Calculus course through a local community college.  However, according to respondents, the student did not complete his coursework in Algebra I and by the end of the 2014-2015 school year, his numerical average in the class was below a 50 (out of 100).  On May 8, 2015, the student again requested to challenge the June 2015 Geometry Regents examination.  According to respondents, the superintendent and assistant superintendent again explained to the student and petitioner that the student had failed to demonstrate mathematical capability in the Algebra I class and the board had already denied such request.  In an effort to compromise, they offered to award the student a “P” (pass) in Algebra I, based on the score he received on the Integrated Algebra Regents examination, so that he would not have a failing mark on his record.  According to petitioner, on May 14, 2015, the district informed him that the student would be placed in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year, and that transportation would be provided to and from the high school for those classes.  The third appeal (Appeal No. 20239) (“Appeal III”) ensued and petitioner’s request for interim relief was denied on June 18, 2015.

In Appeal I, petitioner challenges the board’s July 1, 2014 decision to place the student in the Algebra I class for the 2014-2015 school year with the option of enrolling him in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year, rather than allowing him to challenge and earn credit by examination for the Integrated Algebra, Geometry, and Algebra II/Trigonometry Regents examinations.  Although not entirely clear, petitioner also appears to challenge the underlying July 1, 2014 determination in Appeal II and Appeal III.  

In Appeal I, petitioner requests that the student be allowed to challenge the Geometry Regents examination on August 13, 2014; to re-take the Integrated Algebra Regents examination to improve his score;[3] to take a Regents-level science class in the fall of 2014; to take a high school math class “which he has not demonstrated mastery in” in the fall of 2014 (i.e. Geometry or Algebra II/Trigonometry); to be provided with transportation to and from the high school for those classes; and to be declared a Major Achiever under Policy #8041. 

In Appeal II, petitioner requests, among other things, that the student be immediately removed from the Algebra I class because he has met his “assessment requirement” and all requirements of 8 NYCRR §100.5(d); that the student be allowed to challenge the Geometry and Algebra II/Trigonometry exams in January 2015 “and all successive math courses that [he] chooses to challenge in the future, including Pre-Calculus in June 2014 (for local credit)”; that the student be allowed to take “whatever course he has not met the assessment requirement for” or for “which he has not stated that he is willing and able to demonstrate Mastery in” in fall 2015; and expungement of the student’s course grades from seventh and eighth grade math and Algebra I courses taken while he was in seventh grade.  

In Appeal III, petitioner requests that the student be immediately removed from the Algebra I class; the expungement of the student’s record from the Algebra I class, rather than allowing a pass/fail grade, or alternatively, awarding an “F” (fail) grade, “which is the grade [he] has ‘earned’ for this ‘class’”; that the student be allowed to challenge the Geometry Regents examination in June 2015;[4] and that the district not force the student to take any class without offering an opportunity for him to challenge it first, including Geometry, Algebra II/Trigonometry, and Pre-Calculus.

Respondents contend that Appeal III must be dismissed as moot and that Appeal II and Appeal III must be dismissed as untimely, procedurally improper, and barred by Appeal I.  Respondents also assert that the petition in Appeal II and reply in Appeal III must not be considered because they are not clear and concise.  Respondents further argue that all three appeals fail to state a claim for which relief may be granted and that their denials of petitioner’s requests were neither arbitrary nor capricious and were discretionary and for the student’s educational benefit.  They argue that the superintendent’s and board’s determinations on June 30 and July 1, 2014, respectively, regarding the appropriate educational placement for the student were carefully considered based upon the student’s academic history, current performance, and social and emotional maturity.  They also assert that their October 2014 reiteration of the prior determination was carefully considered based on the same factors and the drop in the student’s Algebra I grade and work ethic and that no circumstances have changed to warrant reconsideration.  Finally, respondents assert that they have no duty to provide transportation between the middle and high school, to create a class for one student, or to provide a gifted program.

I must first address several procedural matters.  A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10).  Such statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of (id.).  Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729).  Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029).  Respondents assert that the petition in Appeal II must be dismissed as not clear and concise because it is 70 pages long, contains over 449 paragraphs, and annexes approximately 400 pages of exhibits, including an audio compact disc.  While I agree that the second petition could be more clear and concise, I find that the claims and demand for relief with respect to his son’s placement raised by petitioner, who is appearing pro se, are adequately set forth.  Respondents have not alleged or demonstrated that any prejudice resulted from the lack of clarity in the petition in Appeal II.  Accordingly, I decline to dismiss the petition on this basis.

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 Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Respondents object to the reply in each of petitioner’s appeals as being outside the proper scope of a reply.  For example, they claim that the reply in Appeal I contains several new requests for interim relief, which are procedurally improper, and also annexes new exhibits, including affidavits from the student, his Scoutmaster, and the assistant coach from his Lego team.  Respondents also object to the reply in Appeal III as not sufficiently clear and concise to apprise respondents of the nature of petitioner’s responses to their answer.  Indeed, that reply is 51 pages long and contains over 201 paragraphs and annexes approximately 400 pages of exhibits and an audio compact disc.  Therefore, while I have reviewed the reply in each appeal, 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 answers.

Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).  While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833).  In each appeal, petitioner has also sought permission to submit additional exhibits and supporting papers for consideration.  For example, in Appeal I, petitioner submitted an unsworn, undated, “Response to Respondent’s Verified Answer” (“Response”) received by my Office of Counsel on March 30, 2015, in which he requests that the student “be determined to have been unsuccessful in his attempt to ‘earn credit by examination’ in Algebra I.”  Respondents object to this document by letter dated March 31, 2015, submitted in Appeal II, on the basis that it is untimely, outside the scope of a permissible reply, and procedurally improper in that petitioner had already submitted a reply and memorandum of law in Appeal I.  By letter dated April 7, 2015, petitioner explains that the Response addresses issues raised in the answer in Appeal II and therefore it should be accepted in Appeal I in its entirety.  While I have reviewed petitioner’s Response, I have not considered it because it is not responsive to the pleadings in Appeal I.  

Similarly, on May 5, 2015, petitioner served an “Affidavit in Support of Petition” in both Appeal I and Appeal II.  Each affidavit appears to be identical, with identical exhibits, with the exception of the New York State Education Department’s appeal number.  The affidavits seek to point out alleged inconsistencies in the district’s statements regarding whether the student was successful in his challenge of Integrated Algebra, which apparently came to light following the commencement of Appeal I.  By letter dated May 12, 2015, respondents objected to the submission of both affidavits since petitioner did not request permission to submit them and because both parties had filed the requisite pleadings and memoranda of law in both appeals.  Petitioner subsequently filed with my Office of Counsel a request pursuant to 8 NYCRR §275.3 to submit the same affidavit in Appeal I and Appeal II “in the interest of Justice.”  Petitioner does not explain why the information contained in the proposed affidavits could not have been submitted earlier, since they describe several statements and events that transpired before the pleadings and memoranda in Appeal I and Appeal II had been filed.  Moreover, they appear to buttress the claims raised in Appeal II.  Therefore, while I have reviewed the affidavit proposed to be filed in Appeal I and Appeal II, I have not considered it in either appeal.

By letter dated September 18, 2015, petitioner requested permission pursuant to 8 NYCRR §275.3 to submit an “Additional Pleading in Support of Petition” (“Additional Pleading”) in Appeal III.  Petitioner requests that the Additional Pleading, which annexes several exhibits, be accepted “in the interest of Justice,” because of alleged contradictory statements made by respondents regarding the student’s “scholarship” and specifically regarding statements contained in the answer in Appeal III.  By letter dated October 9, 2015, respondents objected to the Additional Pleading as improper.  I note that petitioner did submit a Reply in response to the answer in Appeal III, and also had an opportunity to submit a memorandum of law, but did not do so.   Accordingly, I have not considered the Additional Pleading in Appeal III.

Pursuant to §276.4 of the Commissioner’s regulations, petitioner’s memorandum of law must be served within 20 days of service of the answer or 10 days after service of the reply, whichever is later.  If the last day for service of any pleading or paper subsequent to the petition falls on a Saturday or Sunday, service may be made on the following Monday; and if the last day for such service falls on a legal holiday, service may be made on the following business day (8 NYCRR §275.8[b]).  Here, the reply in Appeal I was served on September 11, 2014.  Therefore, in accordance with §276.4(a) of the Commissioner’s regulations, petitioner had until September 22, 2014[5] to serve his memorandum of law.  Petitioner’s memorandum of law in Appeal I was not served until October 8, 2014.  I note that the late filing of memoranda of law may be permitted by the Commissioner, in his or her sole discretion, upon written application setting forth good cause for the delay and demonstrating the necessity of such memoranda to a determination of the appeal (8 NYCRR §276.4[a]).  Petitioner did not provide any excuse for the delay or request permission to serve a late memorandum of law.  Accordingly, I have not considered it (see Application of Paladino, 53 Ed Dept Rep, Decision No. 16,594).

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).  The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694).  A reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Respondents contend that Appeal II and Appeal III must be dismissed as untimely because both appeals challenge the board’s July 1, 2014 decision to place the student in the Algebra I class for the 2014-2015 school year with the option of enrolling him in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year rather than allowing him to challenge and earn credit by examination for the Integrated Algebra, Geometry, and Algebra II/Trigonometry Regents examinations.  According to petitioner’s affidavit of service, the petition in Appeal II was served on January 13, 2015. Therefore, Appeal II is untimely to the extent it challenges the board’s July 1, 2014 determination.

Although not entirely clear, petitioner appears to assert that Appeal II challenges a November 24, 2014 determination of the board declining to entertain his appeals.  The record indicates that, on October 28, 2014, petitioner appealed to the board, requesting that the student be awarded credit by examination for Integrated Algebra pursuant to 8 NYCRR §100.5(d); removed from Algebra I and any math class he can or has challenged by examination; not placed in any class he is “able to demonstrate mastery and scholarship in”; and allowed to challenge both the Geometry and Algebra II/Trigonometry examinations in January 2015.   According to respondents, on November 7, 2014, the superintendent and assistant superintendent met with petitioner and explained that his requests were essentially the same as those which had already been denied, and that the student would continue to follow the educational plan determined by the administration and the board.  On November 24, 2014, the superintendent notified petitioner that the board declined to entertain petitioner’s appeal.  As discussed above, a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Valentino, 48 id. 254, Decision No. 15,851).  Here, the record indicates that petitioner’s October 28, 2014 appeal to the board was nothing more than a request for reconsideration of its July 1, 2014 determination.  Even if the November 2014 “determination” could form a basis for a new appeal, Appeal II would be untimely since it was not commenced until January 13, 2015, more than 30 days after both the November 7, 2014 and November 24, 2014 alleged determinations.

With respect to Appeal III, petitioner appears to challenge the district’s alleged failure to entertain petitioner’s May 8, 2015 request to challenge the June 2015 Geometry Regents examination and the district’s May 14, 2015 determination to place the student in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year.  According to petitioner’s affidavit of service, the petition in Appeal III was served on December 24, 2014.[6]  I note that this date appears to be incorrect since the petition in Appeal III was received by my Office of Counsel on June 12, 2015 and was filed after Appeal II, which was commenced on January 13, 2015, and respondents’ answer in Appeal III was served on July 1, 2015.  Moreover, Appeal III followed a May 14, 2015 determination.  Nevertheless, Appeal III must be dismissed as untimely since petitioner’s May 2015 request to challenge the Geometry Regents examination and May 14, 2015 determination were already decided by virtue of the board’s July 1, 2014 decision to place the student in Algebra I class for the 2014-2015 school year with the option of enrolling him in both Geometry and Algebra II/Trigonometry classes for the 2015-2016 school year rather than allowing him to challenge and earn credit by examination for the Algebra I, Geometry, and Algebra II/Trigonometry Regents examinations.   Appeal II and Appeal III must therefore be dismissed as untimely.

Appeal I must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  In Appeal I, petitioner requests that the student be allowed to challenge the Geometry Regents examination on August 13, 2014; to take a Regents-level science class in the fall of 2014; to take a high school math class “which he has not demonstrated mastery in” in the fall of 2014 (i.e. Geometry or Algebra II/Trigonometry); to be provided with transportation to and from the high school for those classes; and to be declared a Major Achiever under Policy #8041.  The 2014-2015 school year has ended and the student is no longer enrolled in Algebra I.  Further, the August 2014 Geometry Regents examination has passed. 

Petitioner’s claim regarding the Major Achievers policy is also moot.  As described above, the record indicates that, at the time the events underlying Appeal I arose, respondents had not implemented the Major Achievers policy for several years.  Moreover, the assistant superintendent indicated in his affidavit in Appeal I that the district’s board policies are in the process of being reviewed by the Madison-Oneida Board of Cooperative Educational Services Labor Relations Department and that Policy #8041 will either be completely eliminated or significantly revised before the fall of 2014.  I take administrative notice that the district’s official website contains its board policies, which indicate that Policy #8041 is no longer in effect.  Since Policy #8041 is no longer in effect, petitioner’s claim pursuant to that policy must be dismissed as moot (see Appeal of Hubbard, 45 Ed Dept Rep 266, Decision No. 15,316; Appeal of Squires, 40 id. 193, Decision No. 14,458). 

Even if the appeals were not dismissed on procedural grounds, they would 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 or her 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 I.L., 53 Ed Dept Rep, Decision No. 16,496; Appeal of T.K., 47 id. 234, Decision No. 15,679; Appeal of Landau, 34 id. 79, Decision No. 13,239; Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125; Appeal of Bartowski, 25 id. 52, Decision No. 11,495).  Moreover, school districts have no affirmative duty to provide programs for gifted students or to place every student identified as gifted into an existing program (see Education Law §§3204(2-b); Education Law, Article 90; Bennett v. City School Dist. of New Rochelle, 114 AD2d 58).  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., 48 id. 348, Decision No. 15,882).

Petitioner argues that the student qualifies as a Major Achiever pursuant to Policy #8041 and that respondents improperly denied his request for Major Achiever status.  Policy #8041 provides, among other things, that “it is the District’s responsibility to identify the major achievers, to understand their needs and to formulate programs for the development of their individual abilities and unique talents....”  Petitioner asserts that the district has an obligation to identify the student as a Major Achiever based on his mastery of sophisticated concepts in math and science, grades, outside activities, and skills.  According to respondents, petitioner’s request was denied because the district no longer offers gifted programs, including those for Major Achievers, due to reductions in State Aid.  The assistant superintendent also avers in his affidavit that the district decided to end the program due to lack of both funds and interest for at least the past eight years.  On this record, petitioner has not carried his burden of proof that respondent acted in an illegal, arbitrary, or capricious manner in this regard.

Petitioner also asserts that his son has successfully earned credit by examination in Integrated Algebra pursuant to 8 NYCRR §100.5(d)(1) and the district’s policy for high school students to receive course credit by examination and, as such, did not need to sit for the course. 

Section 100.5(d)(1)[7] of the Commissioner’s regulations (“Alternatives to specific Regents and local diploma requirements”) provides, in part, as follows:

(1)Credit by examination. A student may earn a maximum of 6 1/2 units of credit for either a Regents or local diploma without completing units of study for such units of credit, if:

(i)based on the student's past academic performance, the superintendent of a school district or the chief administrative officer of a registered nonpublic high school or the chief administrator of an educational program administered by a State agency pursuant to Education Law section 112 and Part 116 of this Title, or his or her designee, determines that the student will benefit academically by exercising this alternative;

(ii)the student achieves a score of at least 85 percent, or its equivalent as determined by the commissioner, on a State-developed or State-approved assessment pursuant to section 100.2(f) of this Part;

(iii)the student passes an oral examination or successfully completes a special project to demonstrate proficiency, in such knowledge, skills and abilities normally developed in the course but not measured by the relevant Regents examination or State-approved examination if used, as determined by the principal or the chief administrator of an educational program administered by a State agency; and

(iv)the student attends school, or received substantially equivalent instruction elsewhere, in accordance with section 3204(2) of the Education Law, until the age of 16, pursuant to sections 3204 and 3205 of the Education Law.

Petitioner asserts that his son met all of the criteria of §100.5(d)(1): (i) the board decided on June 10, 2014 to allow the student to sit for the Integrated Algebra exam thereby determining that the student would “benefit academically by exercising this alternative”; (ii) on June 20, 2014, the student sat for the Integrated Algebra exam and received a score of 90 out of 100; (iii) the student subsequently passed an oral examination; and (iv) the student attends school.  Based on the foregoing, petitioner asserts that his son was not required to complete the Algebra I course. 

According to respondents, the examiners (a district high school mathematics teacher, the district’s AIS teacher, and the district’s mathematics teacher who teaches Algebra classes in the middle school and high school) and assistant superintendent, who observed the oral examination, determined that the student did not possess the mathematical, educational, social, and emotional maturity to benefit from foregoing class instruction in Algebra I in favor of receiving credit by examination.  According to respondents, although the student gave a sufficient number of correct answers to technically pass the oral examination and seemed to grasp some general concepts, the examiners and assistant superintendent determined that he was largely reciting concepts he had memorized rather than deriving solutions mathematically, that he did not have a sufficient vocabulary to express his responses, and that he lacked the required knowledge of mathematical terms, among other things.  As a result, the superintendent decided that the student would achieve the most educational benefit from taking the Algebra I class rather than receiving credit by examination.  According to respondents, the superintendent’s determination was also based on the observations of the student’s classroom teachers.

Petitioner rejects this analysis and appears to assert that the district already determined that his son would benefit academically by foregoing Algebra I instruction when it permitted his son to sit for the Integrated Algebra Regents examination.  I disagree with petitioner’s conclusion.  Section 100.5(d)(1)(i) of the Commissioner’s regulations gives the superintendent authority to make a pedagogical judgment on whether the student will benefit academically from receiving credit by examination.  As the superintendent explained in his  October 8, 2014 e-mail, while the student had passed both the written and oral examinations to challenge the Integrated Algebra examination for credit, he could not receive diploma or high school credit pursuant to the program requirements of 8 NYCRR §100.4.  This is consistent with the earlier communication by the assistant superintendent, following the student’s April 28, 2014 request to challenge the Integrated Algebra Regents examination, that it would not be educationally beneficial for the student to pursue credit by examination because he was not in eighth grade and he could not receive diploma credit pursuant to §100.4(d) of the Commissioner’s regulations. 

Section 100.4(d) of the Commissioner’s regulations (“Grade 8 acceleration for diploma credit”) provides as follows:

(1) Public school students in grade 8 shall have the opportunity to take high school courses in mathematics and in at least one of the following areas: English, social studies, languages other than English, art, music, career and technical education subjects or science courses.

(2) Credit may be awarded for an accelerated course only when at least one of the following conditions has been met:

(i) accelerated students attend classes in a high school with high school students and pass the course on the same basis as the high school students. Credit is awarded by the high school; or

(ii) the student passes the course and the associated State proficiency examination or Regents examination, when available. The credit must be accepted as a transfer credit by all registered New York State high schools; or

(iii) in cases where no appropriate state assessment is available, the student passes a course in the middle, junior high or intermediate school that has been approved for high school credit by the public school district superintendent(s), or his or her designee(s), or the district(s) where the middle, junior high or intermediate school and the high school are located.

(3) Such opportunity shall be provided subject to the following conditions:

(i) The superintendent, or his or her designee, shall determine whether a student has demonstrated readiness in each subject in which he or she asks to begin high school courses in the eighth grade leading to a diploma.

(ii) A student shall be awarded high school credit for such courses only if such student passes a Regents examination, a second language proficiency examination when available, or a career and technical education proficiency examination, or, if no such examinations are available, a locally developed examination that establishes student performance at a high school level as determined by the principal.

(4) Courses taken pursuant to this subdivision may be substituted for the appropriate requirements set forth in subdivision (c) of this section.

Section 100.4(d) contemplates acceleration for diploma credit of eighth-grade students, and no similar provision exists for seventh-grade students.  For that reason, the district recommended that the student be accelerated to eighth grade where he could receive diploma credit for advanced classes, or alternatively, take the Algebra I course having met the assessment requirement.  Despite the decision in early 2014 by the assistant superintendent that the student could not pursue credit by examination because he could not receive diploma credit as a seventh-grade student pursuant to §100.4(d) of the Commissioner’s regulations, petitioner and his son decided to move forward with pursuing credit by examination.  While the board should have reiterated in its June 10, 2014 decision to allow the student to sit for the Integrated Algebra exam, that doing so would not result in an award of diploma credit, obviating the need to complete the Algebra I course, the regulations must be followed and I cannot conclude that an oversight in the board’s letter requires a different result.      

Here, the board determined that the student’s needs would be adequately served by taking the Algebra I course in the 2014-2015 school year and the Geometry and Algebra II/Trigonometry courses in the 2015-2016 school year.  Moreover, the board determined that it would not be academically beneficial to skip over instruction in Algebra I and Geometry and begin taking Algebra II/Trigonometry in seventh grade.  I decline to find respondents’ actions to be arbitrary, capricious or unreasonable and will not substitute my judgment for that of the board with respect to the student’s placement.

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

THE APPEALS ARE DISMISSED.

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