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Decision No. 12,547

Appeal of KATHLEEN FACE on behalf of her daughter, Natasha, from the action of Thaddeus S. Obloy, Superintendent of Schools of the New Lebanon Central School District, relating to class placement.

Decision No. 12,547

(July 18, 1991)

Keith G. Flint, Esq., attorney for the respondent

SOBOL, Commissioner.--Petitioner appeals from a determination of respondent to retain her daughter in the second grade for the 1990-1991 school year. The appeal must be dismissed.

Petitioner's daughter was a second grade student in the Walter B. Howard Elementary School in the 1989-90 school year. As early as November, 1989, the possibility of retention was discussed with petitioner, because her daughter was academically and socially below the norm of the other children in the second grade. Toward the end of the school year the child's teacher, who has 29 years of experience in elementary education, recommended retention and petitioner originally agreed.

During the summer, petitioner's daughter was tutored by a retired teacher and at the end of the summer at petitioner's request, the district administered a further reading and placement examination. Although petitioner claims that her daughter "did well" on this test, the district's reading coordinator found that the results indicated that the student is still functioning "at a second reader (instructional) level." Based upon his conversations with the second grade teacher, remedial teacher, elementary reading coordinator and the test results themselves, the superintendent determined that petitioner's daughter had still not mastered the skills necessary for promotion to the third grade and confirmed the decision to retain her in the second grade.

Education Law '1709(3) authorizes boards of education "[t] prescribe the course of study by which the pupils of the schools 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 shall warrant." In the absence of a showing that a determination with respect to student placement is arbitrary, capricious, or unreasonable, the Commissioner of Education will not substitute his judgment for that of local school authorities. (Appeal of Stokes, 29 Ed Dept Rep 409; Appeal of Womack, 27 id. 262; Matter of Jacobowitz, 20 id. 387). In an appeal before the Commissioner, the petitioner has the burden of demonstrating a clear, legal right to the relief requested. Petitioner has failed to establish any such clear, legal right in this case; indeed, the exhibits attached to the petition establish that the respondent had a reasonable basis for his determination.