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Decision No. 18,081

Appeal of K.Z. and T.H., on behalf of their child, from action of the Board of Education of the Garden City Union Free School District regarding class placement.

Decision No. 18,081

January 31, 2022

Guercio & Guercio, LLP, attorneys for respondent, Rachel N. Roth, Esq., of counsel

ROSA., Commissioner.--Petitioners appeal the determination of the Board of Education of the Garden City Union Free School District (“respondent”) that their child (“the student”) should be promoted from kindergarten to first grade for the 2021-2022 school year.  The appeal must be dismissed. 

The student attended kindergarten in respondent’s district for the 2020-2021 school year.  Respondent’s promotion and retention policy states that the following factors are used to make determinations regarding student progression:  “[a]cademic achievement as compared to district curriculum; [s]ocial and emotional development of the child; [a]ge of the child; and [p]hysical growth (size) of student.”  The policy places final authority for grade promotion and retention decisions with the building principal.

Petitioner requested that the student repeat kindergarten for the 2021-2022 school year.  The principal considered this request but nevertheless decided to promote the student to first grade for the 2021-2022 school year.  This appeal ensued.  Petitioners’ request for interim relief was denied on September 10, 2021. 

Petitioners argue that respondent should have retained the student in kindergarten because of his lack of academic achievement, social development, and young age relative to his peers. 

Respondent argues that the principal’s decision to promote the student to first grade was not arbitrary or capricious.  According to respondent, the student made satisfactory progress in all basic subject areas, as well as his social skills.

Education Law § 1709 (3) authorizes boards of education “[t]o prescribe the course of study by which the pupils of the schools 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 shall warrant.”  In the absence of a showing that a student placement determination is arbitrary or capricious, the Commissioner will not substitute her judgment for that of local school authorities (Appeal of M.F. and T.L., 44 Ed Dept Rep, Decision No. 15,234; Appeal of Face, 31 id. 8, Decision No. 12,547; Appeal of Womack, 27 id. 262, Decision No. 11,941).

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).

In support of their argument, petitioners provide a letter from the student’s pediatrician, dated July 5, 2021, which states that the student “has been struggling both behaviorally and academically” and receives occupational, physical, and vision therapy.  Petitioners also submit emails that depict an ongoing conversation between petitioners and the school regarding the student’s progress, petitioners’ efforts to obtain various evaluations of the student, and petitioners’ concerns regarding promotion to first grade.  Additionally, petitioners submit samples of the student’s work, arguing that it demonstrates that he does not consistently recognize the first letters of words and cannot write three-letter words; petitioners further contend that his writing is illegible.  Petitioners further allege that, in March 2021, the student’s teacher recommended that he repeat kindergarten. 

In response, respondent provides a copy of the student’s 2020-2021 report card, a copy of the student’s individualized education program (“IEP”) for the 2021-2022 school year, and prior written notice issued in connection therewith.  The student’s 2020-2021 report card shows that he met New York State learning standards in nine out of ten areas in the subjects of math, science, and social studies; in one sub-area of math, the student was “approaching the standards.”  In English/Language Arts, the student received “excellent” or “good” marks for the entire school year.  The student’s report card also evaluated the student’s effort in 15 categories of social emotional learning.  The student received six “excellent” ratings, eight “good” ratings, and one “needs improvement” rating. 

Respondent also provides affidavits from the principal, school psychologist, and school social worker.  The principal states that she worked closely with the student, petitioners, and school staff during the 2020-2021 school year.  The principal acknowledges that the student is young for his class, with a December 1 birthday, but states that he did not exhibit “behavior or needs that were atypical for a kindergartener” in school.  According to the principal, the student’s mother requested an evaluation for special education in October 2020.  This included a psychiatric evaluation, which “revealed average levels of functioning in all areas of concern identified by [petitioners], including academics, gross motor skills, and fine motor skills.”  Based on this evaluation, respondent did not find the student eligible for special education. 

In March 2021, the student was referred to the district’s social worker for social skills counseling and assistance with emotional regulation based on concerns that he was not initiating play and conversation with peers.  Thereafter, according to the principal, the student participated in weekly sessions with the social worker and made improvement.  Upon petitioners’ request, the student was reevaluated for special education in April and May 2021. 

The principal explains that, at a committee on special education (“CSE”) meeting on June 17, 2021, the student was classified as a student with a disability.  According to the principal, “[t]he student presented with minor deficits in the areas of physical therapy and occupational therapy and was recommended to receive those services … during the 2021-2022 school year.  It was also recommended that the [s]tudent receive mandated counseling to work on his social and emotional skills, as he did during the 2020-2021 school year.”

The principal explains that she decided to promote the student to first grade after consulting with the student’s classroom teacher, school psychologist, and social worker.  The principal states that the student made progress on his social skills with the help of the social worker and that his social skill needs were “not out of the ordinary for a kindergartener.”  With regard to academics, the principal reports that the student “was overall at grade level and would be receiving additional support through his IEP during the 2021-2022 school year.”  The affidavits of the school psychologist and social worker corroborate the information provided by the principal; both affiants state that they supported the student’s promotion to first grade. 

On this record, petitioners have failed to meet their burden of proving that respondent’s determination to promote the student to first grade was arbitrary or capricious.  Respondent has provided ample evidence to show that its decision took into consideration the factors of academic achievement, social and emotional development, and the student’s age.