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Decision No. 12,846

Appeal of BRUCE A. M., on behalf of his son ERICH, from action of the Board of Education of the Syosset Central School District regarding grade placement.

Decision No. 12,846

(December 10, 1992)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to admit his son to first grade for the 1992-93 school year. The appeal must be dismissed.

Petitioner's son was born on December 17, 1986, and was not eligible to attend respondent's kindergarten during the 1991-92 school year as a result of a district cut-off date of December 1, established pursuant to Education Law '3202(1). Although that section provides that pupils between the ages of 5 and 21 are entitled to attend the public schools of the district in which they reside, it does not require a board of education to admit a child during a school year unless such child turns 5 years of age on or before December first of that school year.

On July 28, 1992 petitioner requested that his son be tested for possible admission to first grade since his son had completed a home instruction kindergarten program. That request was denied and this appeal ensued.

Petitioner maintains that because his son has completed a home instruction kindergarten program, respondent must test and evaluate his son before it assigns him to the district kindergarten program. Petitioner further contends that his son should be placed in first grade and that respondent has acted in an arbitrary and capricious manner in refusing to evaluate his son for placement in first grade. In support of those contentions, petitioner cites Matter of Lazar, 6 Ed Dept Rep 7.

In Matter of Lazar, supra, it was determined that a board of education may not summarily reject for admission to first grade a student who was not eligible for attendance in the district's own kindergarten program but who has successfully completed a nonpublic kindergarten program which was registered by the State Education Department (see also Matter of Silverberg, 60 Misc. 2d 701). As stated in Matter of Lazar, supra at page 8:

When a child has become 5 years of age, . . . and has attended school elsewhere, it has been repeatedly held that decision as to grade placement cannot legally be based upon age but that the determination must be based upon criteria related to the child's intellectual attainments. (citations omitted). Where a pupil who is presented for admission to first grade has attended a nonpublic school, it becomes the duty of the school authorities to make a determination in accordance with the above principles. In the case of nonpublic kindergartens which are registered by the Department, such registration establishes the fact that the program is equivalent to that provided in a public school kindergarten and, therefore, children completing such kindergarten program are entitled to admission to first grade.

Where the school attended has not been registered by the Department, it then becomes necessary for the local board of education to make its own determination on the question of equivalency. The alternatives open to the board at this time are either the evaluation of the nonpublic school program or a testing program which would establish the ability of the child to do first grade work.

The record before me indicates that petitioner's son, unlike the child in Lazar, was not enrolled in either a registered or unregistered nonpublic school kindergarten program or any other formal program. In addition, petitioner's son did not receive instruction in a formal home instruction program pursuant to an approved and monitored individualized home instruction plan in accordance with '100.10 of the Regulations of the Commissioner of Education. There is also no indication that petitioner has submitted any evidence to respondent as to the nature or extent of the tutoring received by petitioner's son. Finally, the record indicates that petitioner's son has been observed by several members of respondent's staff, including the elementary school principal, the child's classroom teacher, the school psychologist, the school speech therapist and the school nurse. Those observations have resulted in respondent concluding that petitioner's son exhibits serious social deficits which significantly hinder his functioning within the kindergarten program and would present greater difficulty in a class with older children with whom he is neither age-appropriate nor social-appropriate.

On many occasions, I have indicated that I will not substitute my judgment for that of a board of education with respect to student placement, absent evidence of arbitrary and capricious action on the part of such board (Appeal of Amoia, 28 Ed Dept Rep 150; Appeal of Womack, 27 id. 262; Appeal of Campbell, 25 id. 462; Matter of Boussion, 18 id. 590. Upon the record before me, I find no evidence that respondent's action was arbitrary and capricious.

The record does indicate that petitioner's son may have a handicapping condition. If this child has not already been evaluated by respondent's committee on special education (CSE), respondent must immediately refer him to its CSE for an appropriate evaluation.