Appeal of OLGA DONETS, on behalf of her child EDGAR, from action of the Board of Education of the Lindenhurst Union Free School District regarding denial of admission.

Decision No. 17,597

(March 4, 2019)

Guercio & Guercio, LLP, attorney for respondent, Randy Glasser, Esq., of counsel

ELIA., Commissioner.--Petitioner appeals a determination of the Board of Education of the Lindenhurst Union Free School District (“respondent”) denying her son, Edgar (the “student”), admission to kindergarten.  The appeal must be dismissed.

Respondent’s policy 5150, entitled “Admission to School,” outlines the requirements an individual must satisfy to be admitted to its schools.  As relevant to this appeal, the policy provides that the district “shall provide a public education to all persons between the ages of five and twenty-one,” and “[a] child who reaches the age of five on or before December 1 of a given school year is eligible for admission into kindergarten.”  The policy contains no exceptions to this rule.

On or about August 6, 2018, petitioner visited respondent’s administrative office to register the student, who was born on February 6, 2014, for kindergarten.  Petitioner alleges that she was “turned away” by a school district employee when the employee learned that the student would not be five years old on or before December 1, 2018.

Thereafter, on August 13, 2018, petitioner wrote to respondent’s superintendent to request a “waiver” enabling the student to attend kindergarten for the 2018-2019 school year.  Petitioner described the student’s academic achievements and requested that the superintendent make an exception to policy 5150 for the student.

By email dated August 13, 2018, the superintendent responded that the student was not eligible to attend kindergarten based on policy 5150.  The superintendent noted that petitioner could, however, “enroll [the student] in a private accredited Kindergarten program” which, based upon his performance in the program, could entitle him to enroll in first grade for the following school year.

In an email to the superintendent dated August 14, 2018, petitioner indicated that, during the previous school year, the student “was enrolled in a private accredited preK program ....”  Petitioner requested that the superintendent “review the [pre-kindergarten] program as well as his certification” to see if the student was “now eligible for Kindergarten.”

In an email to petitioner dated August 23, 2018, the superintendent indicated that he spoke with the board of education, and that the board would not grant petitioner’s request.  This appeal ensued.

Petitioner argues that the student should be permitted to attend kindergarten at one of respondent’s elementary schools because he is academically ready for kindergarten.  Petitioner identifies the student’s academic achievements and describes trips and extracurricular activities he has engaged in, including “attending a STEM camp in Taipei, Taiwan,” “theater summer camp ... in Syosset” and visiting almost every children’s library on Long Island.  Petitioner requests a determination that the student be permitted “to enroll at ... Daniel Street Elementary School’s Kindergarten program starting on September 5th.”

Respondent contends that its decision to decline to waive its kindergarten admission policy for the student was rational.  Respondent also raises a number of procedural objections to petitioner’s requested relief.

First, I must address respondent’s procedural objections.  Respondent contends that the appeal is moot and/or seeks advisory relief because petitioner requests a “determination that [the student] ... is authorized ... to enroll” in a specific kindergarten program “starting on September 5th.”  I disagree.  It is clear, upon review of the petition, that petitioner is seeking admission to a specific kindergarten program in respondent’s district for the 2018-2019 school year, which has not ended (cf. Appeal of Janine M., et al., 39 Ed Dept Rep 513, Decision No. 14,296).  Although petitioner’s request for relief includes the phrase “starting September 5th,” it is reasonable to conclude that petitioner, who appears in this matter pro se, included this date merely to identify the starting date of the program.  This interpretation is supported by the fact that petitioner served the petition, which did not include a request for interim relief, on August 30, 2018, and respondent’s answer was not due to be served until October 5, 2018.  Therefore, I find that the appeal is properly before me because petitioner seeks an order directing respondent to enroll the student in respondent’s kindergarten program for the 2018-2019 school year, which is still ongoing.[1]

Turning to the merits, Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition....  Nothing herein contained shall, however, 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.

Further, as indicated above, respondent’s policy 5150 similarly provides that the district “shall provide a public education to all persons between the ages of five and twenty-one” and “[a] child who reaches the age of five on or before December 1 of a given school year is eligible for admission into kindergarten.”

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner has failed to prove that respondent erred in denying the student admission to kindergarten.  The record reflects that the student was not five years old on or before December 1, 2018 and, instead, turned five in February 2019.  Since the student did not turn five until February 2019, respondent acted within its discretion in refusing the student admission for the 2018-2019 school year based upon Education Law §3202(1) and policy 5150 (see Appeal of Lee, 58 Ed Dept Rep, Decision No. 17,506; Appeal of L.T., 47 id. 23, Decision No. 15,609; Appeal of Sollitto, 31 id. 138, Decision No. 12,595).  While a board of education may admit children at an earlier age in its discretion, a parent cannot compel such an act of discretion (Appeal of Lee, 58 Ed Dept Rep, Decision No. 17,506; Appeal of Sollitto, 31 id. 138, Decision No. 12,595).

THE APPEAL IS DIMISSED.

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