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Decision No. 18,077

Appeal of L.S. and M.R., on behalf of their child, from action of the Board of Education of the North Shore Central School District regarding educational placement.

Decision No. 18,077

(January 27, 2022)

Rebecca Sassouni, Esq., PLLC, attorneys for petitioners, Rebecca Sassouni, Esq., of counsel

Frazer & Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal a determination by the Board of Education of the North Shore Central School District (“respondent”) declining to enroll their child (“the student”) into fifth grade for the 2021-2022 school year.  The appeal must be dismissed.

The student’s grade level assignment has been the subject of conflicting requests by petitioners.  At the conclusion of the 2016-2017 school year, petitioners requested that the student be retained for a second year of kindergarten due to concerns with his behavior and development.  Respondent granted petitioners’ request and created a retention plan for the student.  This plan stated that the student’s retention would “continue to exist until [the student] meets grade level benchmarks in his new, current grade.”  For the next three years, the student completed kindergarten, first, and second grade, meeting or approaching grade level expectations. 

In March 2020, petitioners requested that the student be accelerated to fourth grade for the 2020-2021 school year.  Three months later, petitioners withdrew this request, stating that, “[a]fter much discussion with [the student,] we have decided not to move forward with our request to have him return to his original cohort.”

In fall 2020, petitioners submitted a private neuropsychological evaluation report to respondent.  The district convened a committee under Section 504 of the Rehabilitation Act and developed an accommodation plan for the student. 

In June 2021, petitioners wrote to the district asking to “reverse the retention” that occurred in 2017 and accelerate the student to fifth grade for the 2021-2022 school year.  A team consisting of the assistant superintendent for instruction, the principal, the student’s second/third grade teacher,[1] and a special education teacher met to discuss the request.  The team agreed that the student should not be accelerated.  Petitioners appealed to respondent, which, by letter dated August 3, 2021, upheld “the recommendation of the administration to maintain [the student’s] grade assignment.”  This appeal ensued.

Petitioners argue that respondent’s policy on retention is inconsistent with other board policies and denies services to students with special needs.  Petitioners further contend that, by denying their request to accelerate the student, respondent is denying the student a safe and supportive educational environment.  Petitioners request reversal of respondent’s August 3, 2021 determination.

Respondent contends that the petition was not properly verified and is untimely insofar as it challenges the student’s 2017 retention.  On the merits, respondent argues that its decision not to accelerate the student was not arbitrary, capricious, or contrary to sound educational policy.

The petition must be dismissed for lack of verification.  Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified.  When a petition is not properly verified, the appeal must be dismissed (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of D.P., 46 id. 516, Decision No. 15,580).  Here, petitioners did not verify the petition.  Rather, the verification is signed by petitioners’ counsel.  Petitioners’ counsel is not a petitioner in this appeal; therefore, her verification is improper, and the appeal must be dismissed (see Appeal of T.B., 60 Ed Dept Rep, Decision No. 17,969; Appeal of Waronker, 59 id., Decision No. 17,790; Appeal of Valdez, 54 id., Decision No. 16,651; Appeal of D.P., 46 id. 516, Decision No. 15,580).

Even if the petition were not dismissed for improper verification, any challenge to the 2017 decision to retain the student in kindergarten would be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The student was retained in kindergarten in 2017, at petitioners’ request, more than four years prior to their request to reverse that determination.  Petitioners cannot obtain review of that determination by framing it as a present request to accelerate the student (see Appeal of A.B., 60 Ed Dept Rep, Decision No. 18,010; Appeal of Cea, 58 id., Decision No. 17,483).  To hold otherwise would allow a petitioner to circumvent the 30-day time limitation (8 NYCRR 275.16).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 should warrant” (Education Law §§ 1709 [3] and 2554 [1]).  A board’s decision will not be overturned unless the board has acted in an illegal, arbitrary or capricious manner (Appeal of a Student with a Disability, 41 Ed Dept Rep 259, Decision No 14,680; Appeal of J.K. and M.B., 40 id. 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioners have not met their burden of showing that respondent’s decision was illegal, arbitrary, or capricious.  In reviewing petitioners’ request to accelerate the student, respondent considered the student’s academic record, test scores, reports from his teachers, and feedback from a school social worker.  This evidence revealed that the student was performing adequately for his grade level.  Additionally, district staff opined that the student “socialize[d] appropriately” and had a “group of social/emotional peers.”  Respondent’s superintendent also observed the student in his third-grade classroom.  Based on this evidence, I cannot find respondent’s determination to be illegal, arbitrary, or capricious (Appeal of Lauria, 46 Ed Dept Rep 288, Decision No. 15,510).[2]

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




[1] The student had the same teacher for second and third grade.


[2] Petitioners’ argument that respondent’s policy 5050 (student gender identity) “trumps [its] placement and retention policy” is without merit.  Petitioners have also failed to demonstrate that respondent’s policy 5154 impermissibly discriminates between the student and students who transfer to respondent’s district.