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Decision No. 15,314

Appeal of P.W., on behalf of her son J.W., from action of the Board of Education of the City School District of the City of New York regarding educational placement.

Decision No. 15,314

(October 18, 2005)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, John P. Hewson, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the City School District of the City of New York ("respondent") to admit her son, J.W., to one of its specialized high schools. The appeal must be dismissed.

J.W. took the entrance examination for fall 2003 admission to respondent's specialized high schools, Brooklyn Technical High School, Stuyvesant High School and Bronx High School of Science, but he did not qualify. During the 2003-2004 school year, J.W. lived with his father in Seattle, Washington and attended school there. Petitioner then requested that respondent admit J.W. to the eleventh grade at Brooklyn Technical High School or Bronx High School of Science for the 2004-2005 school year. Her request was denied, and this appeal ensued. Petitioner's request for interim relief was denied on September 15, 2004.

Petitioner asserts that respondent should place her son at one of the three specialized high schools because placing him elsewhere would be detrimental to his education. She requests that respondent administer the entrance examination to her son or assess his ability based on his academic performance. She also requests that respondent amend its admission policy to accommodate transfer students.

Respondent asserts that the Education Law requires that admission to these schools be based on an achievement exam and petitioner's son is no longer eligible to take the entrance examination which is limited to eighth and ninth grade students.

Education Law �2590-h(1)(b) provides that admission to New York City's specialized senior high schools must be conducted in accordance with the law in effect on the date preceding its December 31, 1996 effective date. The statute governing admission to these schools in effect on that date, former Education Law �2590-g(12)(b), provides that:

(b) Admissions to the Bronx High School of Science, Stuyvesant High School and Brooklyn Technical High School and such similar further special high schools which may be established shall be solely and exclusively by taking a competitive, objective and scholastic achievement examination, which shall be open to each and every child in the city of New York in either the eighth or ninth year of study, without regard to any school district wherein the child may reside. No candidate may be admitted to a special high school unless he has successfully achieved a score above the cut-off score for the openings in the school for which he has taken the examination. The cut-off score shall be determined by arranging the scores of all candidates who took the examination and who then commit themselves to attend the school in descending order from the highest score and counting down to the score of the first candidate beyond the number of openings available.

Petitioner does not dispute that her son failed to achieve the required test score for admission to the specialized high schools in the fall of 2003, and she provides no authority to permit her son, who is now beyond his ninth year of study, to take the examination or obtain a waiver. In an appeal to the Commissioner, a 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 Romeo, 44 Ed Dept Rep 149, Decision No. 15,128; Appeal of Patton, et al., 42 id. 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530). I find that petitioner has not met this burden.  Her assertion that placement at a school other than one of the specialized schools would be detrimental to her son's education does not establish that respondent acted in an illegal, arbitrary or capricious manner.