Appeal of N.C.S., on behalf of her son N.D.S., from action of the Superintendent of the New Hartford Central School District regarding admission to kindergarten.

Decision No. 17,783

(November 7, 2019)

Law Office of Anthony F. Brigano, attorneys for petitioner, Anthony F. Brigano, Esq., of counsel

Costello, Cooney & Fearon, PLLC, attorneys for respondent, Melinda B. Bowe, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner appeals the decision of the Board of Education of the New Hartford Central School District (“respondent”) to deny her request to enroll her son (“the student”) in kindergarten.  The appeal must be dismissed.

In respondent’s district, admission to school is governed by board policy 6001.  With respect to kindergarten, the policy provides, in conformity with Education Law §3202(1), that a child whose birthday falls on or before December 1 of a given year may enroll in kindergarten in September of that year, while a student whose birthday is December 2 or later is not be eligible to attend kindergarten until September of the following year (see Education Law §3202[a] [“[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 (or her) birthday occurs on or before the first of December”]).  As an exception to this rule, policy 6001 provides that, “[i]n exceptional cases,” if a parent submits a “written request” for admission on behalf of a child whose birthday falls between December 1[1] and January 1, such child may be admitted to kindergarten “following an evaluation and recommendation” by a school psychologist.  A decision to admit such a child is permissible “only when sufficient evidence is available to indicate that the child will be materially helped by such a decision,” and “the final decision ... rest[s] with the [s]uperintendent.”

The student was born on December 2, 2014.  In an email to respondent’s superintendent dated January 16, 2019, petitioner requested that the student be allowed to enroll in kindergarten in September 2019.  In a letter dated January 17, 2019, the superintendent informed petitioner that, pursuant to policy 6001, a school psychologist would evaluate the student and make a recommendation.

On May 13, 2019, a school psychologist evaluated the student utilizing the Developmental Test for Kindergarten Readiness.  The student received a score of 103 on this assessment, which, according to the record, is in the average range.  The psychologist recorded that the student demonstrated difficulty with body concepts, visual discrimination, and knowledge of the alphabet.  After receiving the results of this evaluation, petitioner requested a second evaluation using a different assessment.  Respondent agreed, and, on May 29, 2019, a different school psychologist evaluated the student utilizing the Developmental Indicators for the Assessment of Learning - Fourth Edition.  The student received a standard score of 110 on the second assessment, which also fell within the average range.

By letter dated June 12, 2019, the superintendent denied petitioner’s request to enroll the student in kindergarten.  The superintendent determined that “sufficient evidence [was] not present to indicate that [the student] would be materially helped by early kindergarten enrollment.”  This appeal ensued.[2]

Petitioner contends that the student would be “materially helped by early admission into kindergarten” in respondent’s district.  As evidence, petitioner submits a letter from the director of the student’s preschool as well as written documentation from the preschool describing the student’s ability to identify letters, colors and shapes.  For relief, petitioner requests that the student be allowed to enroll in one of respondent’s elementary schools for the 2019-2020 school year.

Respondent contends, inter alia, that the superintendent’s decision to deny the student early admission to kindergarten was rational and in conformity with policy 6001.

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.

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 Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Initially, the student is not entitled to enroll in respondent’s district for the 2019-2020 school year by virtue of his age.  Since the student will not be five on or before December 1, 2019, respondent acted within its discretion in refusing to admit the student for the 2019-2020 school year (see Appeal of L.T., 47 Ed Dept Rep 23, Decision No. 15,609; Matter of Sollitto, 31 id. 138, Decision No. 12,595).

To the extent petitioner requests early admission to kindergarten for exceptional circumstances as described above under policy 6001, two school psychologists conducted two evaluations of the student using two different assessment methods, both of which resulted in the student receiving a score in the average range.  While petitioner contests the accuracy of the student’s performance during the second evaluation, she “concede[s] that [she] was not present at said evaluation to observe the child’s performance.”  Therefore, on this record, there is no basis to conclude that the evaluations were inaccurate.

Petitioner also submits a letter from the director of the student’s preschool in which the director “strongly recommend[s]” that the student “start [k]indergarten in September 2019.”  The director asserts that the student is “academically ahead of his peers,” “socially and emotionally competent,” and the first student whom she has recommended for early admission to kindergarten in her eight years of experience in early childhood education.  While I have considered this recommendation and afforded it some weight, policy 6001 dictates that early admission to kindergarten must be based upon an evaluation by a school psychologist and that the final decision on a request for early admission rests with the superintendent.  On this record, where the results of two assessments performed by two different psychologists placed the student’s academic abilities in the average range, I find that the superintendent acted within his discretion in denying the student early admission to kindergarten.

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

THE APPEAL IS DISMISSED.

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