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Decision No. 13,239

Appeal of ARTHUR N. LANDAU, on behalf of his son, ROSS, from action of the Board of Education of the Chappaqua Central School District regarding a gifted program.

Decision No. 13,239

(August 3, 1994)

Guazzo, Perelson, Rushfield & Guazzo, Esq., attorneys for respondent, Stephen Perelson, Esq., of counsel

Sobol, Commissioner.--Petitioner challenges the adequacy of the gifted program offered by the Board of Education of the Chappaqua Central School District. The appeal must be dismissed.

The record indicates that for several years, petitioner has criticized respondent's gifted program and the manner by which respondent identifies gifted students in its schools. In connection with the program offered his son, petitioner argues that his son is entitled to more individual attention. Although petitioner is not specific as to how respondent's gifted program should be structured, he seems to contend that respondent should be ordered to establish a special class composed solely of students at the same academic level and supply individual instruction for such students, as needed. Respondent contends that its gifted program is appropriate and that it has not acted improperly in this matter.

In an appeal to the Commissioner of Education, the petitioner bears the burden of demonstrating a clear legal right to the relief requested (Appeal of Singh, 30 Ed Dept Rep 284; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Petitioner offers no legal basis to support his claim that his son is entitled to the gifted program he requests. Furthermore, Education Law '1709(3) authorizes a board of education to "prescribe the course of study" to be followed in the schools of the district. That authority includes the discretion to determine, within the bounds set by statute and regulation, which classes will be offered (Appeal of Fox, et al., 30 Ed Dept Rep 19; Matter of Hannahs, 21 id. 706; Matter of DeWard, 21 id. 435).

The record indicates that respondent's gifted program is operated by a full-time teacher who serves students in the district's three elementary schools. The program provides projects and activities which stress higher level analytical skills. The program is integrated into classroom instruction by direct instruction, team teaching, demonstration lessons and in-service education. The program is continued at the middle school and high school level in which acceleration and enrichment opportunities are available in foreign languages, math, science and English. While I understand petitioner's concerns and his desire to maximize his son's educational experience, there is no basis for me to conclude that respondent has abused its discretion in this matter. Moreover, pursuant to Education Law '3602-c, a board of education is not obligated to provide any gifted program, and the offering of such a program is within its discretion.

Regarding respondent's manner of identifying gifted students, petitioner fails to specify how respondent is delinquent. Accordingly, petitioner has failed to establish any facts substantiating his claim on this issue. Moreover, Education Law '1709(3) grants a board of education broad authority "to regulate the admission of pupils and their transfer from one class or department to another, as their scholarship shall warrant." The Commissioner of Education has consistently held that he will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board acted in an illegal, arbitrary or capricious manner (Appeal of Alexandreena D., 30 Ed Dept Rep 203; Appeal of DiMicelli, supra; Appeal of Burtowski, 25 id. 52).

The record before me shows that selection to respondent's gifted program is based upon an assessment of several factors, including standardized test scores, class performance and teacher recommendations. The combined use of such criteria to determine eligibility for a gifted program is not illegal, arbitrary or capricious (Appeal of Alexandreena D., supra).