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Decision No. 14,295

Appeal of JULIO I., on behalf of his daughter, CHRISTINA, from action of the Board of Education of the Lynbrook Union Free School District regarding academic placement.

Decision No. 14,295

(January 20, 2000)

Ehrlich, Frazer & Feldman, attorneys for respondent, Jacob S. Feldman and Christine M. LaPlace, Esqs., of counsel

MILLS, Commissioner.--Petitioner challenges the refusal of the Board of Education of the Lynbrook Union Free School District ("respondent") to place his daughter in ninth grade Honors English. The appeal must be dismissed.

During the 1997-98 school year, upon the recommendation of a Superintendent’s Task Force, the district adopted criteria for selection to honors classes at the secondary level. The criteria included: a teacher’s recommendation based on a scale of 60 to 100; a student’s score on an IQ test; a student’s mid-year grade in the subject in question; and a student’s score above the 90th percentile on a standardized test. An optimal score amounted to 390, which consisted of a 90 on the teacher recommendation, an IQ of at least 120, a mid-year grade of 90, and a 90 on the standardized test.

In Spring 1998, petitioner’s daughter, Christina, was evaluated for admission into the district’s ninth grade Honors English class using the above criteria. Christina received a teacher recommendation score of 70, an IQ score of 118, a mid-year grade of 92, and a standardized test score of 68, for a total of 348. Christina’s composite score of 348 was 23 points lower than the lowest score of the students accepted from her middle school into Honors English. Since she was not ranked within the top 50 students entering ninth grade, she was not among the 48 students selected for Honors English.

Petitioner was informed of this decision in Spring 1998. By letter dated May 12, 1998, petitioner wrote to respondent, asking to discuss Christina’s placement. The district’s assistant superintendent responded by letter dated May 20, 1998, in which he explained the criteria for honors placement. A series of letters were subsequently exchanged between petitioner and various district administrators. By letter dated July 10, 1998, petitioner requested a meeting with respondent. Respondent’s superintendent denied this request by letter dated July 22, 1998. This appeal ensued. Petitioner’s request for interim relief was denied on September 23, 1998.

Petitioner contends that Christina’s teacher recommendation score (70) was too low. He claims that Christina’s eighth grade English teacher consistently awarded her good grades, and wrote favorable comments on her report card. Petitioner also alleges that his daughter is the only student with a mid-year grade of 92 who received such a low rating by her teacher. He maintains that the policy for admitting students to ninth grade Honors English is arbitrary and capricious. Petitioner claims the policy is a pretext for keeping Hispanics, such as his daughter, out of Honors English. He requests that Christina be admitted to Honors English, and that respondent adopt an honors placement program which is fair.

Respondent contends that it used acceptable criteria for determining eligibility for Honors English and applied the criteria consistently and equitably. Respondent also denies that it discriminated against petitioner or his daughter. Finally, respondent asserts that the petition is untimely and that petitioner’s reply contains new claims which should not be considered.

Prior to addressing the merits, I will address two procedural matters. In his verified reply, petitioner sets forth for the first time additional facts and allegations upon which he bases his claims in this appeal. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR "275.3 and "275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions or exhibits that should have been in the petition (Appeal of Breud, et al., 38 Ed Dept Rep 748; Decision No. 14,133; Appeal of Ehnot, 37 id. 648, Decision No. 13,948). The reply contains new facts and allegations to augment the petition. The new material contained in the reply could easily have been included in the petition, and petitioner offers no reason for not doing so. Therefore, while I have reviewed petitioner’s reply, I have not considered those portions which contain new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Respondent also contends that the appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days of 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). In this case, Christina was excluded from Honors English in the Spring of 1998. Thereafter, petitioner wrote a number of letters protesting his daughter’s exclusion. By letter dated May 20, 1998, the assistant superintendent explained why Christina was not selected. The superintendent reiterated in his letter of June 24, 1998 that Christina would not be placed in Honors English. The superintendent also wrote a letter to petitioner dated July 22, 1998 informing petitioner that respondent refused to meet with petitioner. Thus, even if I consider the July 22 letter as the final determination, petitioner did not commence his appeal until September 8, 1998 -- more than 30 days later.

Petitioner has presented no excuse for the delay other than he was unaware of his right to appeal. Except in unusual circumstances, ignorance of the appeal process is not a sufficient basis to excuse a delay in commencing an appeal (Appeal of Houghton, 38 Ed Dept Rep 777, Decision No. 14,141). I find no unusual circumstances in this case. Accordingly, the appeal is dismissed as untimely.

Even if the appeal had been timely, I would nevertheless dismiss it on the merits. Pursuant to Education Law "1709(3), boards of education have broad authority to prescribe the course of study by which pupils 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 warrants. Consistent with that authority is the power to place students (Appeal of Reid, 32 Ed Dept Rep 587, Decision No. 12,922; Appeal of Kendrick, 32 id. 464, Decision No. 12,887). The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of Reid, supra; Appeal of Kendrick, supra).

Based on my review of the record, I find that respondent has not acted arbitrarily or capriciously. Under respondent's policy, a student is selected for ninth grade Honors English based on a certain standardized test score, IQ score, the student’s grades in eighth grade English, and a teacher’s recommendation which is predicated in part on the student’s participation in class.

Prior Commissioner’s decisions have held that standardized test scores may be used as part of the screening criteria for determining a student’s eligibility for enrichment programs as long as the standardized test scores are not the sole criteria (Appeal of Reid, supra; Appeal of Alexandreena D., 30 Ed Dept Rep 203, Decision No. 12,433 and 30 id. 462, Decision No. 12,536). The use of teacher recommendations as part of the screening criteria has also been held to be permissible (Appeal of Reid, supra;Appeal of DiMicelli, 28 Ed Dept Rep 327, Decision No. 12,125). Accordingly, I do not find respondent's use of standardized test scores, IQ scores, mid-year grades and teacher recommendations, which are based in part on objective criteria, to be arbitrary or capricious.

Nor do I find any evidence in the record that respondent treated Christina unfairly or discriminated against her. In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR " 275.10; Appeal of Logan, 38 Ed Dept Rep 694, Decision No. 14,120). Petitioner has not met his burden of showing unfair treatment or discrimination.

In light of this disposition, I will not address the parties’ remaining contentions.