Appeal of R.L., on behalf of her daughter M.L., from action of the Board of Education of the Pleasantville Union Free School District regarding admission to kindergarten.

Decision No. 15,944

(July 24, 2009)

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent, Margo L. May, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the Pleasantville Union Free School District (“respondent”) denying her daughter, M.L., admission to kindergarten for the 2009-2010 school year.  The appeal must be dismissed.

Petitioner attempted to register M.L. in respondent’s schools for the 2009-2010 school year. By letter dated January 23, 2009, respondent refused this request based on the district’s policy establishing a December 1 cut-off date for admission to kindergarten.  This appeal ensued. 

Petitioner states that M.L. was adopted from China and claims that the birth date on her Chinese birth certificate, December 4, 2004, is wrong.  Petitioner provided the superintendent with medical information which she claims demonstrates that M.L. will be five years old before December 1, 2009.  Petitioner argues that this evidence establishes that M.L. is older then what is stated on her birth certificate and renders her eligible for admission to kindergarten in accordance with respondent’s policy.

Respondent argues that its decision was proper and that petitioner has failed to meet her burden of proof.  

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 Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).

Before a child attends school, his or her parent must provide evidence of age (see Education Law §3212[2][a]).  Education Law §3218 sets forth the documentation that may be accepted by school district officials to show that a child is of the required age.  That section provides, in pertinent part:

Evidence showing that the minor is of the required age shall be presented as follows: 

a. A duly certified transcript of a birth certificate filed according to law, or duly certified transcript of a record of baptism, giving the date of birth; or, if not available,

b. A passport showing the date of birth of the minor; or, if not available,

c. Other documentary evidence or other recorded evidence in existence two years or more, and satisfactory to the certificating officer, except an affidavit of age. 

According to the statute, if a parent has a birth certificate or record of baptism, no other form of evidence may be used to determine a child’s age.  Petitioner does not assert that the birth certificate was not duly certified or filed.  Accordingly, I cannot find respondent’s determination to be arbitrary or capricious.

In view of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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