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Decision No. 16,550


 Appeal of A.S and E.S., on behalf of their children E.S and M.S., from action of the Board of Education of the Great Neck Union Free School District regarding grade placement.

Decision No. 16,550

(September 16, 2013)

Frazer & Feldman, LLP, attorneys for respondent, Christie

R. Jacobson, Esq., of counsel

KING, JR., Commissioner.--Petitioners appeal a determination by the Board of Education of the Great Neck Union Free School District (“respondent”) to place E.S. and

M.S. in first grade, rather than second grade, for the2012-2013 school year. The appeal must be dismissed.

Petitioners are the parents of twin girls, E.S. and M.S., who were born on December 15, 2005. According to the record, petitioners initially sought to enroll their children in the district’s universal pre-kindergarten program on May 21, 2009 for the 2009-2010 school year. However, due to a district policy that requires students to attain the age of four by December 1 of the year of entrance, E.S. and M.S. were not eligible, as they did not turn four years old until December 15, 2009. It appears that petitioners enrolled E.S. and M.S. in Silverste in Hebrew Academy (“the Academy”), a non-public school, where they attended pre-kindergarten in the 2009-2010 school year.

Thereafter, on March 22, 2011, while petitioners’ children were attending kindergarten at the Academy, petitioners sought to register them in the district’s first grade for the 2011-2012 school year. The children were screened on May 27, 2011 under District Policy No. 5140entitled “Entrance Age” which states that:

Every child admitted to kindergarten in the Great Neck School District must attain the age of five years on or before December 1 of the year of entrance ... No child under the aforementioned age will be admitted at any time during the year unless ...[t]he child was in attendance at another public school district in which the child’s entrance age was in

compliance ... Every child admitted to first grade must attain the age of six years on or before December 1 of the year of entrance ... A parent who seeks to enroll an underage first grade child will be supplied with an entrance form ... The parent will have the director or principal of the child’s former private or public school complete the form ... After the district’s screening process has been completed, the parent will be notified as to the child’s placement. All new underage entrants in kindergarten through fifth grade will be observed by school staff for a minimum of two weeks in order to determine the appropriateness of the grade placement. The principal will then notify the parent of the final decision regarding the child’s placement. If the decision involves a change in grade, the parent will be informed in advance.

Based on the district’s reading evaluations and observations of petitioners’ children, respondent determined that E.S. and M.S. should be placed in kindergarten rather than first grade for the 2011-2012 school year. The record indicates that petitioners withdrew their application for registration, and their children attended first grade at the non-public school.1

On June 8, 2012, petitioners attempted to register the students in the district for second grade in the 2012-2013 school year. As the children were “underage,” in accordance with District Policy No. 5140, the students were again evaluated and observed on August 30, 2012 in order to determine their appropriate grade level placement. Based on the results of the assessment, the district’s elementary school principal notified petitioners that the students would be placed in first grade. As a result of a meeting between petitioners and respondent’s superintendent, an additional evaluation of the children was conducted on September 21, 2012, in which the children were tested in mathematics. According to respondent, both the August 30 and September 21, 2012 test results indicated that “while

1Although petitioners characterize the Academy as an “accredited” school, the Academy is not registered by the State Education Department as non-public elementary schools are not registered.

both children [were] functioning above the relevant September benchmarks for first grade students, they [were]functioning below the September benchmarks for second grade students.” Respondent states that petitioners declined an opportunity for the two-week assessment in a first grade placement in the district’s elementary school. Petitioners enrolled the children in second grade at the Academy for the 2012-2013 school year.

By letter dated October 2, 2012, the superintendent memorialized the determination to place the students in first grade, summarizing the basis therefor, and denied petitioners’ request to place the children in the second grade. Petitioners appealed to respondent by letter dated October 8, 2012. By letter dated October 17, 2012, respondent notified petitioners that it had upheld the superintendent’s determination to place the children in first grade for the 2012-2013 school year and offered petitioners “the opportunity to review the testing materials” upon which respondent’s decision was based. Petitioners requested copies of the testing materials but it was not until December 21, 2012 that the superintendent provided the documents, along with his letter of explanation of the testing results. Respondent states that the delay was due to unforeseen events, including weather conditions and subsequent damage caused by Hurricane Sandy. By letter dated January 17, 2013, respondent assured petitioners that, although it was not board practice to meet with individuals in executive session, as petitioners had requested, it had considered all of petitioners’ communications regarding the matter. This appeal ensued.

Petitioners claim that respondent’s decision to place their children in its first grade for the 2012-2013 school year, is unreasonable given their satisfactory completion of first grade at the Academy. They challenge the results of the assessments administered by district staff and submit their own assessment information that, they claim, demonstrates that their children should be placed in second grade. Petitioners also contend that the superintendent’s decision was discriminatory in that it applied a different standard for new entrants than is applied for retention of current district students. Further, petitioners argue that the superintendent gave insufficient weight to the children’s report cards and recommendations from their non-public school teachers. They maintain that the superintendent also should have considered petitioners’ willingness to provide the children with remedial assistance during the year. Petitioners question 3

respondent’s interpretation of its test results, reliance on standardized test results to support its placement decision, and conclusion that the children would require remedial instruction if placed in second grade. Petitioners claim that exceptions in other cases have been made to the initial grade placement based on age.

Petitioners seek an order directing respondent to place E.S. and M.S. in second grade for the 2012-2013school year. In the alternative, they request that, based on their children’s successful completion of grade two at the non-public school during 2012-2013, respondent place

E.S. and M.S. in grade three for the 2013-2014 school year.

Respondent contends that the petition should be dismissed as untimely and because petitioners failed to provide it with all of the exhibits referred to in the petition. Respondent also asserts that petitioners failed to meet their burden of establishing the facts upon which they seek relief, as well as any clear legal entitlement to that relief. Respondent maintains that its determination regarding the children’s placement is within its lawful authority, and that petitioners have failed to demonstrate that it abused its discretion in making the determination.

I will first address several procedural issues. Respondent contends that the appeal must be dismissed because petitioners failed to provide it with “Exhibit M.”I have reviewed such exhibit, which appears to be an October 2012 email exchange between respondent’s school psychologist and the parent of another student. As described below, such exhibit does not impact the outcome of this appeal and there is no indication on this record that petitioners’ failure to provide Exhibit M denied respondent a meaningful opportunity to respond to the petition and present a defense in this appeal (compare Appeal of Students with Disabilities, 52 Ed Dept Rep, Decision No. 16,454; Appeal of Whittaker, 52 id., Decision No. 16,424). Accordingly, under these circumstances, I will not dismiss the appeal on this ground.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR§§275.3 and 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell,48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson,48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not

responsive to new material or affirmative defenses set forth in the answer. Accordingly, I have also not considered the sur-reply submitted by respondent, which addresses the new claims and exhibits in petitioners’ reply.

In response to respondent’s memorandum of law, petitioners submit a letter dated June 7, 2013, which they provide “[i]n lieu of presenting a formal memorandum of law.” Petitioners failed to serve a timely memorandum of law in accordance with §276.4 of the Commissioner’s regulations, and reply memoranda will be permitted only upon prior approval. Petitioners have not sought or received such approval to submit their June 7, 2013 response to respondent’s memorandum of law. Moreover, a memorandum of law should consist of arguments of law (8NYCRR §276.4). It may not be used to add belated assertions or exhibits that are not part of the pleadings(Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84,Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668). Therefore, I have not considered petitioners’ June 7, 2013 letter, submitted “[i]n lieu of a formal memorandum of law.”

I decline to dismiss the petition as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). The Commissioner has previously held that an appeal is timely when commenced within 30 days of receiving the determination (Appeal of C.S., 48 Ed Dept Rep 497, Decision No. 15,929; Appeal of M.H. and E.H., 47 id. 274, Decision No. 15,694). When the record does not indicate when petitioner actually received the determination, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays (Appeal of K.W., 48Ed Dept Rep 451, Decision No. 15,912; Appeal of Bruning and Coburn-Bruning, 48 id. 325, Decision No. 15,872).

Respondent argues that it made the challenged determination on October 15, 2012 and mailed written notice of the decision to petitioners on October 17, 2012. The record indicates that the petition was served on January22, 2013. However, in essence, petitioners are challenging the propriety of respondent’s grade placement determination in view of their children’s assessment results. It was not until the superintendent’s December 21, 2012 letter that 5

petitioners were provided with a copy of the test results and an explanation thereof. Affording the usual five days for mailing, the letter would have been received on December 28, 2012. The appeal was commenced on January 22,2013, within 30 days of receipt of the December 21, 2012letter. Under these circumstances, I decline to dismiss the appeal as untimely.

In this case, however, the appeal must be dismissed as moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204,Decision No. 15,836). In this case, both parties requested extensions of time to submit certain papers. As a result, the appeal was not fully submitted until May 2013. Since the 2012-2013 school year has ended, petitioners’ appeal concerning their children’s placement for that school year is moot and must be dismissed.

I note, however, that respondent’s Policy No. 5140, regarding grade placement of new entrants, is problematic. A board of education has broad authority, under Education Law §1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another. Consistent with that authority, aboard has the power to place students in particular classes(Appeal of J.A., 49 Ed Dept Rep 167, Decision No. 15,987;Appeal of Gergely, 47 id. 423, Decision No. 15,742; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500). The Commissioner will not substitute his judgment for that of aboard of education with respect to student placement, absent evidence that the board has acted in an illegal ,arbitrary or capricious manner (Appeal of J.A., 49 Ed Dept Rep 167, Decision No. 15,987; Appeal of Gergely, 47 id. 423, Decision No. 15,742; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500).

As noted above, respondent’s policy provides, “A parent who seeks to enroll an underage first grade child will be supplied with an entrance form .... After the district’s screening process has been completed, the parent will be notified as to the child’s placement.” Respondent asserts in its answer that, pursuant to Policy No. 5140,“any student seeking to enroll in public school in the District who is underage for placement in a particular grade level desired by the student’s parent or guardian –regardless of where that student was previously educated 6

... is subject to observation and evaluation by District staff in order to determine the student’s appropriate grade level placement.”

The right of a board of education to “utilize such testing procedures as it deems appropriate to determine the proper placement of children coming from other schools, public or private” has long been recognized (Appeal of Chernoff, 76 St Dept Rep 99; see also, Appeal of Mottur, 77id. 166).

However, as noted in Appeal of Chernoff, “the difficulty arises when the board applies the test to one group of children and not to another simply because of age”(76 St Dept Rep 99, at 100). A district policy may not apply its testing procedure based solely on age (Appeal of Mottur, 77 St Dept Rep 166; see also, Appeal of Strandfeldt, 77 id. 8).

Respondent asserts that the evaluation required to determine placement under Policy No. 5140 applies to all underage new entrants. This is inconsistent with the above-cited authority and respondent should immediately review and revise such policy accordingly.

To the extent petitioners seek a determination of their children’s grade placement for the 2013-2014 school year, the appeal must be dismissed as premature. Any determination by respondent as to the children’s grade placement for 2013-2014 will be dependent both on its revisions to Policy No. 5140 as well as on any updated assessment information, if such revised policy properly requires such assessments.

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