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Decision No. 13,642

Appeal of YVONNE ZRAKE, from action of the Board of Education of the South Huntington Union Free School District regarding admission to school.

Decision No. 13,642

(August 6, 1996)

Anthony Zrake, Esq., attorney for petitioner

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, LLP, attorneys for respondent, Christopher Venator, Esq., of counsel

SHELDON, Acting Commissioner.--Petitioner appeals the refusal of the Board of Education of the South Huntington Union Free School District ("respondent") to admit her daughter to kindergarten. The appeal must be dismissed.

Petitioner's daughter, Christina, was born on December 11, 1991. She was subsequently enrolled in the Silas Wood Education Center, respondent's nursery school program. In January 1995, Christina's placement in respondent's nursery school was changed when respondent restructured the age groupings of its program. Thus, Christina was accelerated with other children born in 1991 and at the time of this appeal had been placed in "pre-school 2," for children ages 4 and up, the highest level of respondent's nursery school program. Petitioner sought Christina's admission to kindergarten in the 1996-97 school year and offered to pay tuition to permit her attendance. Respondent refused to accept petitioner's proposal and this appeal ensued.

Petitioner alleges that Christina has the right to attend kindergarten in the 1996-97 school year even though she does not meet the mandatory age requirement since respondent previously accelerated Christina in its nursery school program and she has completed the highest level of that program. Petitioner alleges that respondent's refusal to admit Christina to kindergarten is arbitrary and capricious. Petitioner seeks an order permitting Christina to attend kindergarten in the 1996-97 school year, with or without the payment of tuition. Respondent contends that petitioner's daughter does not meet the mandatory age requirement to attend kindergarten in the 1996-97 school year, that its actions are consistent with the law and that its determination was not arbitrary or capricious.

Education Law '3202(1) reads, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma 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 facts are not in dispute regarding Christina's age. However, petitioner argues that since Christina has attended the district's nursery school program, and has attained its highest level, she is entitled to attend kindergarten in the district. While petitioner contends that the program Christina attends is a "school" and that she is therefore being denied the right to attend kindergarten with her "class," the record indicates that respondent's prekindergarten program is not a "class" from which one is promoted after having successfully completed its requirements. It is, rather, a separate program to meet the needs of preschool children until they are of kindergarten age (Matter of Spitz, 18 Ed Dept Rep 571). Although petitioner contends that her daughter is ready for kindergarten and submits the evaluation of a licensed psychologist to support her contention, respondent has the right to refuse to admit a student to kindergarten who does not meet the minimum age requirements (Appeal of Sollitto, 31 Ed Dept Rep 138; Appeal of Dickens, 25 id. 401; Matter of Spitz, supra). I note that petitioner's daughter is eligible to remain in respondent's nursery school program. Based on the record before me, I find no basis to overturn respondent's determination.