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Decision No. 15,866

Appeal of B.M., on behalf of his daughter R.M., from action of the New York City Department of Education regarding educational placement.

Decision No. 15,866

(January 30, 2009)

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Michael Suarez, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the New York City Department of Education (“respondent”) to admit his daughter, R.M., to the middle school of her choice.  The appeal must be dismissed.

R.M. is a student in respondent’s district.  In February 2008, R.M. submitted an application indicating her top five choices for middle school. 

R.M.’s first choice, New York City Lab Middle School for Collaborative Studies (“M312”), required applicants to achieve a minimum score on a mathematics and reading test, as well as a minimum interview score.  R.M. took M312’s entrance examination, but did not qualify for admission based upon her failure to meet the minimum score on the mathematics portion of the examination. 

R.M.’s second choice, East Side Middle School (“M114”) filled its entering class with students who selected the school as their first choice.  Petitioner’s third choice, The Salk School of Sciences (“M255”), offered its entrance examination to students designating the school as their first choice and then as space permitted, to students who selected the school as their second choice.  Since R.M. selected M255 as her third choice, she was not offered an opportunity to take the school’s entrance examination.  Petitioner selected The Clinton School for Writers and Artists (“M260”) and the Simon Baruch Middle School: Special Progress Program (“M104”) as her fourth and fifth choices.

Petitioner appealed to respondent requesting that R.M. be admitted to one of her top three choices.  Petitioner’s request was denied on June 25, 2008 and this appeal ensued.  Petitioner’s request for interim relief was denied on July 23, 2008. 

Petitioner contends that he received inaccurate information about the middle school selection process and maintains that respondent failed to provide a selection process that accurately placed all students.  Petitioner further contends that parents were not provided uniform information regarding the admissions test for M312, and that M312 failed to properly supervise the examination which resulted in a biased and flawed test.  Petitioner seeks his daughter’s admission to one of her top three middle school choices. 

Respondent asserts it did not act unreasonably by refusing to place petitioner’s daughter in M312 based upon her failure to meet the school’s minimum entry requirement, and maintains that the student was not harmed as she was placed in one of her top five choices.   

A board of education possesses 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 (Appeal of T.K., 47 Ed Dept Rep 234, Decision No. 15,679).  The Commissioner of Education will not substitute his judgment or 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 T.K., 47 Ed Dept Rep 234, Decision No. 15,679, Appeal of Alexandreena D., 30 id. 203, Decision No. 12,433; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has not met that burden here.

The record shows that R.M. was not admitted to her first choice, M312, because she did not attain the minimum score required on the mathematics portion of the school’s admissions examination.  Petitioner has failed to demonstrate that the testing procedures or the examination itself were unfair or placed R.M. in an unfair position.  Respondent, on the other hand, established in its papers that a uniform admissions process existed for M312, and that all applicants received consistent information.  Respondent indicated that information on the examination was posted on M312’s website and proctors were provided with standardized instructions.  Further, petitioner’s second and third choice schools provided evidence of a uniform admissions process which gave preference to those applicants who selected the schools as their first choice. 

Petitioner has not demonstrated that the middle school selection process on its face, or as administered, was illegal, arbitrary or capricious.  Accordingly, I decline to substitute my judgment for that of respondent.