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Decision No. 15,342

Appeal of SHERI ANN POCHAT, on behalf of her daughter VICTOIRE, from action of the Board of Education of the Monroe-Woodbury Central School District regarding admission to kindergarten.

Decision No. 15,342

(January 19, 2006)

Donoghue, Thomas, Auslander & Drohan, LLP, attorneys for respondent, Krystina E. Cho, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Monroe-Woodbury Central School District ("respondent") to grant her daughter, Victoire, permission to enter kindergarten in September 2007. The appeal must be dismissed.

Victoire was born on December 4, 2002. By letters dated April 19, July 10 and July 19, 2005, petitioner requested that Victoire be admitted to respondent's kindergarten in September 2007 rather than September 2008. By letter dated August 5, 2005, respondent' s assistant superintendent for curriculum and instruction stated that district policy required a pupil to be five years of age on or before December 1 to enter kindergarten. This appeal ensued. Petitioner's request for interim relief was denied on October 5, 2005.

Petitioner contends that Victoire will miss the December 1 deadline for admission to respondent's kindergarten in 2007 by three days, and that she should not be forced to wait until September 2008 because she is advanced for her age. Petitioner alleges that the Education Law permits four-year-olds to attend kindergarten. Petitioner further alleges that the Commissioner has, in the past, permitted the admission to kindergarten of children who have not reached the age of five by December 1 and that respondent has made similar exceptions. Finally, petitioner contends that respondent's kindergarten will not be overburdened if her daughter is admitted in the 2007-2008 school year and requests that her daughter be admitted to respondent's kindergarten in September 2007.

Respondent alleges that petitioner fails to state a claim upon which relief may be granted, that the appeal is premature, and that it is under no obligation to enroll petitioner's daughter in September 2007.

I find that petitioner's appeal is not yet ripe for a determination. It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law �310 (Appeal of Taber, 42 Ed Dept Rep 251, Decision No. 14,843; Appeal of a Student with a Disability, 42 id. 111, Decision No. 14,791; Appeal of Hillhouse, 41 id. 385, Decision No. 14,720). Petitioner's request is prospective: that her daughter be admitted to district schools in September 2007. At this time, petitioner' s daughter has not been denied admission and is therefore not aggrieved. Petitioner's daughter is only three years of age and any number of intervening factors could arise before September 2007.

Although this appeal is dismissed as premature, I note that Education Law �3202(1) provides in pertinent part:

. . . 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.

This language, which permits a board of education to refuse admission to a child who has not attained the age of five by December first, is clear and unambiguous (seealsoFrost v. Yerazunis, et al., 53 AD2d 15; Appeal of S.H., 40 Ed Dept Rep 527, Decision No. 14,546).