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Decision No. 16,599


 Appeal of C.S., on behalf of her children T.S. and D.S., from action of the New York City Department of Education regarding educational placement.

Decision No. 16,599

(March 12, 2014)

Law Offices of Neal H. Rosenberg, attorneys for petitioner, Neal H. Rosenberg, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Eric B. Porter, Esq., of counsel

KING, JR., Commissioner.--Petitioner challenges the denial of the New York City Department of Education (“respondent” or “DOE”) of her request to enroll her children, T.S. and D.S., in kindergarten for the 2013-2014 school year. The appeal must be dismissed.

Petitioner’s children are twins, born on December 27, 2007. According to petitioner, the twins were born three months premature and experienced medical and developmental issues. By email dated February 14, 2011, when the twins were three years old, petitioner expressed concern to the parent coordinator for P.S. 8 – the school her children would attend - that the twins would not be ready to begin pre-kindergarten in September 2011. She asked if she could “hold them back.”

By email dated March 18, 2011, the parent coordinator indicated that, due to the limited number of spaces available for the 2011-2012 pre-kindergarten class, “chances are not very good” for the twins to enter pre-kindergarten that year. He also stated that “your chances for pre-k next year may not be much better.” With respect to petitioner’s request to hold the twins back, the parent coordinator stated “holding back is usually not a problem ....” Finally, he stated, “It’s most likely that we would be dealing with your enrollment when your kids are turning


6 and entering kindergarten if that’s what you want."1 According to petitioner, as a result of this exchange, she did not enroll the twins in respondent’s 2011-2012 pre-kindergarten program.

1 It appears from the record that, at that time, Chancellor’s regulation A-101 permitted such discretion. Although a copy of the regulation in effect at that time has not been submitted by the parties, by email dated April 5, 2013, petitioner quoted the Chancellor’s regulation apparently then in effect as stating “[c]hildren whose sixth birthday falls within the calendar year of admission must be admitted to the first grade or to another appropriate placement” (emphasis added). In addition, in an April 15, 2013 email to parents, generally, the principal of P.S. 8 refers to a March 2012 change in the regulations and indicates that he no longer has discretion to place a six year old in kindergarten.

2 In the 2013-2014 school year, the twins became six years old on December 27, 2013.

In June 2012, when the twins were approximately four and a half years old, petitioner registered them for kindergarten in the district for the 2012-2013 school year (during which they would turn five on December 27, 2012). However, by emails dated June 6, 7, and 8, 2012 to the parent coordinator, school guidance counselor and principal, respectively, petitioner again inquired about the option of holding the twins back another year. She asked whether there would be any problem enrolling the twins in kindergarten for the 2013-2014 school year, given their December 2007 birthdays.2

According to the record, by email dated June 11, 2012, the guidance counselor replied stating, “[i]t is not common practice to hold back students, but it has been done.” She indicated that, if the twins’ current teacher said that it was a good idea, holding them back was a “definite possibility.” She invited petitioner to call and discuss the matter further. Although there is no documentary evidence in the record, petitioner maintains that the parent coordinator called her, on behalf of the principal, and “confirmed that the Students [sic] could indeed be enrolled in P.S. 8’s 2013-2014 kindergarten class.” Respondent denies petitioner’s assertion. In any event, petitioner withdrew the twins’ applications for enrollment in kindergarten for the 2012-2013 school year.

In January 2013, petitioner submitted an application for the twins’ enrollment in kindergarten for the 2013-2014 school year. In February 2013, based on information that the Chancellor’s regulation regarding student enrollment


had changed, petitioner sought clarification through various emails to the principal, a district family advocate and an individual that petitioner identified as “a network leader” as to whether there would be any problem enrolling the twins in kindergarten for 2013-2014.

By email dated April 12, 2013, the principal notified petitioner that he was unable to place the twins in kindergarten during the 2013-2014 school year. He stated that, “[a]s of March of 2012, the Department of Education changed the regulations that does [sic] not allow us to take any student who will be above the age of five during a given school year.” The principal offered the children a seat in a first grade class, noting that “I know you have good reasons for wanting your child in kindergarten. Unfortunately, I no longer have the discretion to make that decision.”

According to respondent, Chancellor’s regulation A-101, pertaining to student enrollment, was amended, effective March 2, 2012, and superseded a prior version dated June 29, 2009. Section I(A)(2)(a) of the amended regulation, submitted as an exhibit to respondent’s verified answer, states: “[c]hildren whose sixth birthday falls within the calendar year of admission must be admitted to the first grade.” Although petitioner asserts that the amendment occurred in December 2012, for purposes of this appeal the pertinent language in effect currently and at the time of petitioner’s application to enroll the twins for the 2013-2014 school year is as quoted above. Respondent notes that petitioner’s children turn six years old on December 27, 2013 which is within the calendar year of admission.

Petitioner seeks suspension of the application of Chancellor’s regulation A-101 to her children. Petitioner asserts that denying her children the opportunity to attend kindergarten because they will turn six in December 2013 is arbitrary and capricious, given that they were born three months premature. Petitioner also maintains that she justifiably relied on representations by respondent’s personnel that she could enroll her children in kindergarten for the 2013-2014 school year.

Respondent asserts that Chancellor’s regulation A-101 was duly promulgated pursuant to Education Law §2590-h(16) and is “binding upon the DOE.” Respondent asserts that the regulation explicitly directs that petitioner’s children be placed in first grade for the 2013-2014 school year but


grants the superintendent discretion to alter the placement after admission. Respondent also contends that petitioner cannot assert a claim of equitable estoppel.

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). Subsequent to the commencement of this appeal, by letter dated September 18, 2013, respondent’s attorney provided a copy of an August 27, 2013 decision from Supreme Court, New York County dismissing an Article 78 proceeding filed by petitioner relating to and referencing this appeal. In that Article 78 proceeding, petitioner unsuccessfully challenged Chancellor’s regulation A-101 as arbitrary and capricious and unsuccessfully argued that respondent is equitably estopped from applying A-101 to her children based on statements made by school personnel. To the extent the Court determined the issues before me in this appeal, the Court’s decision is res judicata and binding on petitioner.

In any case, respondent’s attorney also stated in his September 18, 2013 letter that “upon information and belief, Petitioner has elected not to enroll T.S. and D.S. in P.S. 8 for the 2013-2014 school year. This may render the Appeal moot.” As a result, by letter dated September 25, 2013, my Office of Counsel directed that petitioner provide information regarding whether her children are enrolled in respondent’s schools for the 2013-2014 school year and whether she has enrolled her children in any other school for the 2013-2014 school year. In response, petitioner provided an affidavit stating that “[b]ecause I do not feel that my children would be appropriately served by placement in a first grade class, I have not enrolled them in P.S. 8 (my locally-zoned school) or any other public school for the 2013-2014 school year.” Petitioner further indicated that she has enrolled both T.S. and D.S. in a school which, “absent any unforeseen developments, they will continue to attend for the duration of the 2013-2014 school year.” Accordingly, the issues presented in this appeal are academic, and the appeal must be dismissed as moot.

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