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Decision No. 12,595

Appeal of MICHAEL SOLLITTO, on behalf of his daughter SARAH, from action of the Board of Education of the Wappingers Central School District regarding admission to school.

Decision No. 12,595

(October 29, 1991)

Raymond G. Kruse, P.C., attorney for respondent, Raymond G. Kruse, Esq., of counsel

SOBOL, Commissioner.--Petitioner seeks to overturn respondent's refusal to admit his daughter to kindergarten. The appeal must be dismissed.

Petitioner's daughter was born at 4:00 a.m. on December 2, 1986. He sought his daughter's admission to kindergarten in respondent district for September 1991. Respondent refused based on its policy to only enroll those students to kindergarten who turn five years of age on or before the first of December in the school year for which they seek admission. Petitioner maintains that applying that policy to his daughter is arbitrary, capricious and an abuse of discretion since she missed the December 1 cutoff by a mere four hours. Section 3202(1) of the Education Law provides in part as follows:

A person over five and under twenty-one years of age … 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.

The language of Education Law "3202(1) that permits a board of education to refuse admission to a child who has not attained the age of five by December first is clear and unambiguous. It is apparent, therefore, that respondent was acting within its legal authority in refusing admission to petitioner's daughter (Matter of Friedlander, 1 Ed Dept Rep 603). Having acted in accordance with Education Law "3202(1), respondent's actions cannot be deemed to be arbitrary or capricious (Frost v. Yerazunis, 53 AD2d 15, 385 NYS2d 181). Pursuant to Education Law "1712, a board of education may in its discretion admit children at an earlier age, but a parent cannot compel such an exercise of discretion (Matter of Friedlander, supra).