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Decision No. 13,253

Appeal of VIRGINIA STUJENSKE, on behalf of her son JOSEPH, from action of the Board of Education of the Floral Park-Bellerose Union Free School District regarding educational placement.

Decision No. 13,253

(September 12, 1994)

Kevin A. Seaman, Esq., attorney for respondent

SOBOL, Commissioner.--Petitioner appeals respondent's refusal to assign her son, Joseph, to a particular first grade teacher. The appeal must be dismissed.

Joseph is scheduled to enter first grade in September 1994. While Joseph was in kindergarten, petitioner asked that in the first grade he be instructed by the same teacher who had instructed her "high-achieving" older child. By letter dated March 7, 1994, respondent informed petitioner that she would not be afforded the special treatment she requested and that Joseph would be placed in accordance with respondent's policy governing student placement. On June 24, 1994, petitioner learned that Joseph was assigned to a first grade teacher other than the individual she requested. Petitioner commenced this appeal on July 21, 1994.

Petitioner contends that she has a right to select which teacher will provide instruction for Joseph. She maintains that Joseph, like his older brother, is an academically gifted student. She further maintains that Joseph should be instructed by the teacher requested because that teacher "works very well" with gifted students. Respondent denies that petitioner can determine who will instruct Joseph.

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 Lemley, 33 Ed Dept Rep 706; Appeal of Almedina, 33 id. 383; Appeal of Singh, 30 id. 284). While I appreciate petitioner's concern for her son's education, she offers no legal basis to support her assertion that she is entitled to select Joseph's first grade teacher.

Moreover, Education Law '1709(3) gives a board of education broad discretion

to 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.

The Commissioner of Education 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 Amoia, 28 Ed Dept Rep 150; Appeal of Bartowski, 25 id. 52; Appeal of Brandon, 22 id. 223). I find no such evidence.

Pursuant to a written policy, respondent determines student assignment to classes based upon the following criteria:

a. strength and weakness of each student

b. teacher characteristics

c. boy/girl ratio

d. academic balance of students

e. behavior characteristics

f. overall ability

g. social, emotional and physical needs of the students

h. heterogeneity of all classes

The policy further provides that a request for a certain teacher cannot be granted because the granting of such a request would prevent the construction of classes according to the above criteria. The record fails to show that petitioner was treated any differently from other parent(s) or that respondent has not acted in accordance with its policy in determining Joseph's class assignment for the 1994-95 school year. Accordingly, the appeal is dismissed.