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Decision No. 14,040

Appeal of PEARL and IRVIN SCHONFELD, on behalf of DANIEL SCHONFELD, from action of the Board of Education of Community School District 22 of the City School District of the City of New York regarding denial of admission to a special program.

Decision No. 14,040

(November 25, 1998)

Hon. Michael D. Hess, Corporation Counsel, attorney for respondent, Tina Piette, Esq., of counsel

MILLS, Commissioner.--Petitioners, parents of Daniel Schonfeld, appeal the decision of the Board of Education of Community School District 22 of the City School District of the City of New York ("respondent") to deny Daniel's admission to a special program at a specific school. The appeal must be dismissed.

Daniel is a student in Community School District 15 of the City School District of the City of New York. In December 1996, while in the fifth grade, he took an admission test for the Center for Intellectually Gifted Students ("CIG") program run by Community School District ("CSD") 22. CSD 22 offers the program at the elementary level to students in its district. At the junior high level, the program is opened to other students from outside the district. The CIG program is run at two intermediate schools in CSD 22: I.S. 240 (the "Hudde" school) and I.S. 14 (the "Shellbank" school). Prior to the admission test, parents were asked to fill out a questionnaire indicating their school of preference.

According to its policy, CSD 22 admits students to the CIG program on the basis of a competitive admissions exam, which includes two standardized multiple choice sections (verbal and quantitative) and an essay. For the 1997-1998 school year, approximately 870 students took the CIG test. Students needed a minimum score of 60 points on each part of the exam and a minimum composite score of 130 points. Those attaining that score then had their essays evaluated. For those with passing essays, composite scores were ranked in numerical order. However, CSD 22 students who had attended the CIG elementary program were given first priority to continue the program; the first 25 seats at Hudde were reserved for those students. One hundred nine invitations were then sent to students who had a composite score of at least 158 and had chosen either Hudde or Shellbank as their first choice. After responses to the first 109 invitations were received and the seats at Hudde were filled, additional invitations were sent to eligible students inviting them to attend the CIG program at Shellbank.

Daniel took the CIG test on December 4, 1996 and requested Hudde as his first choice. Approximately 169 students qualified for placement in CIG, including Daniel. Although Daniel was accepted into the CIG program, he was invited to participate in the program at Shellbank, not at Hudde. Petitioners allege that Daniel was unfairly denied admission to the CIG program at Hudde, and request that I verify the test results. They further request that I order CSD 22 to make available its test results for an audit and request a general audit of the CIG program. Petitioners also object to the use of a speed test as an admissions test for the program, and request that I review the validity of the test.

Respondent asserts that the placement of students in the program based on rank-order test scores is fair and rational. Respondent contends that petitioners have presented no evidence of favoritism and they lack a factual basis to request a general audit of the test used. Respondent also argues that the petition is untimely and fails to state a claim upon which relief may be granted.

I must first address several procedural issues. Respondent filed a late answer apparently because of confusion regarding service of the petition. Petitioners do not object to the late filing. Accordingly, I accept respondent’s late answer.

With regard to timeliness, an appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of unless excused by the Commissioner for good cause shown (8 NYCRR "275.16; Appeal of Goodman, 35 Ed Dept Rep 93). The letter offering Daniel admission to the CIG program at Shellbank is dated "Spring 1997." Although the record does not indicate the exact date of the letter or when petitioners received it, the record indicates that petitioners were informed of the decision by May of 1997 because the record includes petitioner's letter to the CIG program director dated May 7, 1997, protesting Daniel's denial of admission to Hudde. Furthermore, petitioners state that in May, June, July and August of 1997, they explored many avenues of relief at the local level, including telephoning and writing the CIG program director, the District 22 Freedom of Information Officer, the Parental Advocacy Office and the State Education Department. Petitioners did not commence this appeal until August 15, 1997, more than 30 days from any date in May or any liberally construed date in the spring of 1997. Accordingly, the appeal must be dismissed as untimely. Moreover, numerous Commissioner’s decisions have previously held that requests for reconsideration do not extend the time in which to commence an appeal (Appeal of Blaske, 37 Ed Dept Rep 277; Appeal of Ytuarte, 36 id. 238; Appeal of Goodman, supra).

Even if it were not dismissed as untimely, the appeal would be dismissed on the merits. In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested (8 NYCRR "275.10). Determinations as to grade level or programs relating to student instruction are within the province of the board of education (Education Law Article 52-A). I will not substitute my judgment for that of a board of education with respect to student placement unless I find that the board has acted in an illegal, arbitrary, or capricious manner (Appeal of Junger, 37 Ed Dept Rep 519; Appeal of Goodman, supra; Appeal of Locorotondo, 34 Ed Dept Rep 305). I find no such evidence here.

The facts indicate that Daniel was not admitted to Hudde because only the top 100 scorers who requested Hudde were admitted, and Daniel was not among the top 100 who chose Hudde. Respondent filled the seats available at Hudde first then filled the seats at Shellbank. According to respondent, Daniel’s composite score was 155, and he ranked number 134. Furthermore, respondent asserts that even if it eliminated from the rankings those students who first choice was Shellbank, Daniel still ranked only 125, outside the top 100. Moreover, it must be noted that Daniel was not denied admission to the CIG program; he was admitted to the program, but merely did not receive his first choice of school location. Although the record is unclear when or if petitioners received this ranking information from respondent, petitioners have presented no evidence that the procedures used to assign eligible students to the two schools offering the CIG program were in any way arbitrary, capricious, unreasonable, or involved favoritism.

In light of this disposition, I need not address the remaining issues.However, regarding petitioners’ request for an audit investigation, I note that an appeal to the Commissioner under Education Law "310 is appellate in nature and does not provide for investigations (Appeal of Distefano, 36 Ed Dept Rep 217).