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Decision No. 14,153

Appeal of BARRY J. GOODMAN, on behalf of MAGGIE LEIGH GOODMAN, from action of the Board of Education of the City School District of the City of Long Beach regarding enrollment in a gifted and talented program.

Decision No. 14,153

(June 29, 1999)

Ingerman Smith, LLP, attorneys for respondent, Anna M. Scricca, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges a determination by the City School District of the City of Long Beach ("respondent") that his daughter, Maggie, is not eligible to participate in respondent's gifted and talented education program. The appeal must be dismissed.

Petitioner resides in Island Park, within the Island Park Union Free School District. Maggie is a third-grade student who attends the Long Beach Catholic Regional School ("LBCRS"), a nonpublic school located in respondent district. Respondent provides a program, known as Learning Activities to Raising Creativity ("LARC"), for its gifted and talented students. Every school, public and nonpublic, within respondent's district has a LARC team which reviews teacher referrals of possibly gifted children. If the school's LARC team makes a preliminary determination that a referred child may be gifted, a rigorous screening process is then commenced to select students for admission into the program.

Respondent and petitioner disagree as to whether Maggie was ever recommended for, and admitted into, the LARC program. According to respondent, Maggie was never referred to the LARC team by any teacher at LBCRS. Because Maggie was never referred to the LARC team in her school, she never underwent the screening process to determine her eligibility for the LARC program and, consequently, was never identified by respondent as gifted nor admitted into its program.

Petitioner, however, asserts just the opposite, claiming that Maggie was selected for the LARC program by her LBCRS teacher and successfully completed the screening process by June of 1998. Petitioner further asserts that Maggie was duly accepted into the LARC program before the program commenced, in September of 1998.

By letter dated September 10, 1998, Marcia Birnbaum, a teacher in Island Park's Gifted Program, wrote to Dr. Fred Zelinger, respondent's Director of Pupil Personnel. The letter states: "Maggie was accepted to the Gifted Program in the Island Park School District. She attends Long Beach Catholic School and has requested to be in the LARC Program."

On September 17, 1998, petitioner's wife took Maggie to the Lido Elementary School, one of respondent's LARC sites. The LARC teacher there accepted Maggie into the class with the other LARC students, but noted later on her class roster that Maggie was not listed as a student. Petitioner's wife continued to drop Maggie off at the LARC site on September 24, October 1 and October 8, 1998. At some point during this period, petitioner became aware that respondent had determined that Maggie was ineligible to participate in the LARC program. By letter dated October 5, 1998, petitioner wrote to Dr. Zelinger to explain the reasons he believed his daughter should not be excluded from the program.

Some time during the second week of October 1998, Dr. Zelinger contacted Ronnie Danca, the principal of LBCRS, requesting that she notify petitioner that he was to cease bringing Maggie to the LARC program. On October 15, 1998, Ms. Danca notified respondent that she had done so. Nevertheless, on October 15 and October 22, 1998, petitioner sent Maggie to the LARC program.

On October 26, 1998, petitioner met with Dr. Elliott Landon, respondent's superintendent, to discuss the reasons Maggie had not been accepted into the LARC program. Dr. Landon advised petitioner that it was not the practice of respondent to admit nonresident students into its educational programs.

By letter dated October 29, 1998, Dr. Zelinger advised petitioner that he had forwarded Maggie's application for admission to the LARC program to Dr. Landon, but that respondent "re-affirmed its long standing position that it does not accept nonresident students into its programs." This appeal ensued.

Petitioner contends that his daughter Maggie was duly accepted into respondent's LARC program, and that respondent's decision to remove her from that program was arbitrary, capricious and discriminatory. Petitioner seeks an order reinstating Maggie into the program.

Respondent asserts that Maggie was properly excluded from the LARC program for a number of reasons. First, respondent contends that petitioner failed to file a request for participation in the program with his district of residence by June 1, 1998, rendering his request untimely. Second, respondent asserts that Maggie was not referred by her nonpublic school teacher for consideration in the LARC program in a timely manner and therefore did not undergo the rigorous screening and evaluation process necessary for enrollment in the program. Third, respondent claims that it has a valid policy of excluding nonresidents from its programs. Respondent further contends that this appeal is untimely and that, as such, service of the petition upon respondent was defective.

I will first consider the procedural issue raised by respondent. An appeal to the Commissioner must be initiated within 30 days of the decision that is the subject of the appeal unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner was notified by Dr. Zelinger's letter of October 29, 1998 that Maggie was not eligible to attend the LARC Program. This letter served as respondent's official notification to petitioner of its decision regarding Maggie's eligibility. Service of process was made upon respondent on November 23, 1998. As such, this appeal was timely commenced.

The appeal must, however, be dismissed on the merits. In an appeal before the Commissioner of Education, petitioners have the burden of establishing the facts upon which they seek relief (8 NYCRR "275.10; Appeal of Lupiani, 36 Ed Dept Rep 355, Decision No. 13,747). Petitioner here has simply not established that he took the proper steps and procedures to enable Maggie to gain admission into the LARC program. Education Law "3602-c(2) states, in pertinent part:

Boards of education of all school districts of the state shall furnish services [e.g., instruction for gifted students] to pupils who are residents of this state and who attend nonpublic schools located in such school districts, upon the written request of the parent, guardian or persons legally having custody of any pupil. Such a request shall be filed with the board of education of the school district in which the parent, guardian or persons legally having custody of the pupil resides on or before the first day of June preceding the school year for which the request ismade.(emphasis added)

Petitioner has submitted no affidavits or documentary evidence that he ever filed such a request with his school district of residence.

Further, petitioner has not proven that Maggie was, in fact, ever recommended for or accepted into the LARC program, as he asserts. Again, no affidavits or documentary evidence are presented to support petitioner's claim that Maggie was duly accepted into the LARC program, but later summarily dismissed from it. In light of petitioner's failure to present any evidence to the contrary, it must be assumed that petitioner never properly applied for Maggie's admission into the LARC program nor was she ever, in fact, admitted. Logically, therefore, she could not have been terminated from a program in which she was never admitted in the first place.

Despite my dismissal of this appeal, however, I am constrained to note that respondent's policy of limiting its gifted and talented program to residents of the district is contrary to a recent Commissioner's decision (Appeal of Pfeffer, 38 Ed Dept Rep 514, Decision No. 14,083). In Pfeffer, I held that the plain meaning of Education Law ""3602-c(1) and (2) mandate that where a school district has a program for gifted pupils, that district is required to provide gifted and talented "services" to pupils who are residents of the state and who attend nonpublic schools located within that school district (provided the parents or guardians of such nonpublic school students properly request consideration for participation in such program and provided that the legal, regulatory and school district "screening" requirements are met). In other words, a nonpublic school student cannot be denied entry into a public school's gifted program if that student attends a nonpublic school that is located within the public school district. As such, respondent must alter its current policy denying admission of nonresident pupils into its gifted and talented program simply on the basis of their nonresidence within the district.