Decision No. 17,123
Appeal of C.T, on behalf of her daughter A.T., from action of the Board of Education of the Island Park Union Free School District regarding universal prekindergarten enrollment.
Decision No. 17,123
(July 18, 2017)
Lamb & Barnosky, L.L.P., attorneys for respondent, Mara N. Harvey, Esq., of counsel
ELIA, Commissioner.--Petitioner appeals the determination of the Board of Education of the Island Park Union Free School District (“respondent”) denying her daughter, A.T., enrollment in the district's universal prekindergarten program. The appeal must be dismissed.
Petitioner sought to enroll her daughter, who was born in January 2014, in the district's universal prekindergarten program for the 2017-2018 school year. By letter dated December 12, 2016, petitioner stated that “[A.T.] is a very bright young girl” who is “especially emotionally advanced and socially adept” and expressed concerns that A.T. “not become bored academically” and that she be allowed to enter prekindergarten “with her peers.” Petitioner also asked, in her letter, about the possibility of having A.T. “evaluated for readiness.” By letter dated December 14, 2016, respondent’s superintendent of schools (“superintendent”) denied petitioner’s request for enrollment “because [A.T.] was born after the [s]tate’s cutoff date” and “will not be four years old by December 1, 2017,” but encouraged petitioner to enroll A.T. for the 2018-2019 school year. This appeal ensued.
Petitioner alleges that none of A.T.’s peers have been denied enrollment in the program, including those whose birthdays fall after December 1, 2013, and that waivers were previously granted for children missing the December first deadline if their social, emotional, and academic development were shown to be on par with, or higher than that of, their peers. Petitioner contends that respondent’s determination is arbitrary and capricious, and in direct contradiction to Commissioner’s regulations relating to universal prekindergarten eligibility (8 NYCRR §151-1.1 et seq.). Petitioner also claims that her requests to have A.T. tested to prove her abilities were “flatly denied” by respondent in direct contradiction to Commissioner’s regulations “for assessing the developmental baseline and progress of all children participating in the program,” and for “screening  every new entrant to the schools to determine which students are possibly gifted” (8 NYCRR §151-1.3[b]; 8 NYCRR §§117.1–117.3). Petitioner requests a determination that A.T. be evaluated to determine her readiness to enroll in the universal prekindergarten program beginning in September 2017, and further that A.T. be permitted to enroll in the district’s universal prekindergarten program beginning in September 2017.
Respondent denies petitioner’s contention that the district has permitted other children whose birthdays fall after the December 1st deadline to enroll in the program. Respondent contends that petitioner has failed to satisfy her burden of demonstrating a clear legal right to the relief requested as she has not established that the district’s determination that A.T. is not entitled to admission to the district’s universal prekindergarten program for the 2017-2018 school year was arbitrary, capricious or unlawful. Respondent requests that the petition be dismissed in its entirety.
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).
The Commissioner’s regulations state that the purpose of the universal prekindergarten program is “to provide four-year old children with universal opportunity to access prekindergarten programs” (8 NYCRR §151-1.1). Education Law §3602-e, the statute governing the universal prekindergarten program, defines “eligible children” as:
resident children who are four years of age on or before December first of the year in which they are enrolled or who will otherwise be first eligible to enter public school kindergarten commencing with the following school year (Education Law §3602-e[c]).
Section 151-1.2(c) of the Commissioner’s regulations defines “eligible child” in accordance with the statutory definition.
Petitioner's daughter, who was born in January 2014, is not an “eligible child” for the 2017-2018 school year because she will not be four years of age by December 1, 2017 (see Appeal of I.A., 41 Ed Dept Rep 413, Decision No. 14,729). Nothing in Education Law §3602-e or the implementing Commissioner’s regulations requires the district to admit a child who becomes four years of age after December first of the year in which he or she is trying to enroll.
Nor will petitioner's daughter "otherwise be first eligible to enter public school kindergarten commencing with the following school year" (emphasis added), as Education Law §3202(1) similarly states that nothing therein 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;” and A.T. will not be five years of age by December 1, 2018 (Education Law §3202; Appeal of I.A., 41 Ed Dept Rep 413, Decision No. 14,729). A board of education has discretion under Education Law §1712 to adopt a policy of admitting children to kindergarten at an earlier age, but a parent cannot compel such an exercise of discretion (Appeal of L.T., 47 Ed Dept Rep 23, Decision No. 15,609; Appeal of S.H., 40 id. 527, Decision No. 14,546; Matter of Sollitto, 31 id. 138, Decision No. 12,595).
Therefore, respondent was acting within its legal authority in denying A.T. enrollment to the 2017-2018 prekindergarten program because the language of the statute regarding eligibility is clear and unambiguous, and there is nothing in the record to show that respondent has actually admitted underage children in exception to the December first rule; thus, respondent’s actions cannot be deemed arbitrary or capricious (see Frost v. Yerazunis, 53 AD2d 15; Appeal of L.T., 47 Ed Dept Rep 23, Decision No. 15,609; Appeal of Pochat, 45 id. 343, Decision No. 15,342; Appeal of S.H., 40 id. 527, Decision No. 14,546).
Despite petitioner’s argument that the superintendent’s determination “abdicates any and all decision making power” to the Commissioner, in claiming that the district has “no power to make an exception” to the eligibility cut-off date, I find that petitioner has not met her burden of demonstrating that A.T. is entitled to enrollment in the district’s 2017-2018 school year program as an “eligible child” under Education Law §3602-e and §151-1.2(c) of the Commissioner’s regulations, and, therefore, the appeal must be dismissed.
With respect to petitioner’s request to have A.T. tested to determine her readiness to enroll in the universal prekindergarten program, and petitioner’s claim that respondent’s refusal to test A.T.’s abilities was in “direct contradiction” to Commissioner’s regulations, I note that the language of the Commissioner’s regulation applies to testing children who are eligible children already entitled to enroll, i.e., “children participating in the program” in the case of universal prekindergarten assessments (8 NYCRR §151-1.3[b]), and “every new entrant to the schools” in the case of screening to determine which students are possibly gifted (8 NYCRR §§117.1-117.3). As respondent states, while the Commissioner’s regulations provide for assessments and screening to determine whether a child is gifted, the regulations do not provide a basis to admit an underage child or require districts to screen children who do not meet the eligibility requirements for admission into school. As the Appellate Division held in Frost v. Yerazunis:
once a child [is] as a matter of law entitled to admission to public school, [then] the question of [placement] [is] to be determined on the basis of ability [in part] ... and not solely upon the basis of age (Frost v. Yerazunis, 53 AD2d 15).
In light of this disposition, I need not address the parties’ remaining contentions.
THE APPEAL IS DISMISSED.
END OF FILE
 I note that in Chapter 61 of the Laws of 2015, an appropriation bill, the Legislature established a program of State grants for full-day and half-day prekindergarten programs for three year olds and four year olds that are targeted at high need school districts and schools. This grant program which was continued by Chapter 53 of the Laws of 2016 and by Chapter 50 of the Laws of 2017, is not at issue in this appeal.