Decision No. 12,922

(April 23, 1993)

SOBOL, Commissioner.--Petitioner challenges the selection process used by respondent to determine eligibility for its eighth grade Regents earth science and advanced mathematics courses. Petitioner also challenges respondent's refusal to place his son in Regents earth science. The appeal must be dismissed.

Petitioner's son is an eighth grade student at the Hommocks School in respondent school district. The Hommocks School offers two accelerated courses in the eighth grade, Regents earth science and advanced mathematics (Course I). Regents earth science in eighth grade is not a prerequisite to biology in ninth grade. Moreover, Regents earth science may be taken subsequently at the high school.

Under Hommocks' policy, beginning in May of each year the science teachers recommend certain seventh grade students for placement in eighth grade Regents earth science. These recommendations are based on the students' high achievement in seventh grade science, high motivation in science and demonstrated ability to complete assigned tasks on time. The teachers' recommendations are then submitted to the guidance staff for their input. At this point, certain standardized tests are also considered. Placements are made in the last week of June and the first two weeks in July. Each year 20% to 25% of the eighth grade -- approximately 70 students -- are placed in Regents earth science.

At the end of the 1991-92 school year, petitioner's son was not selected to take Regents earth science. The parties' accounts differ on how and when petitioner objected to this decision and on respondent's reason for denying placement. Petitioner claims that he met with his son's guidance counselor in May to object to the decision. Petitioner claims that at that time the counselor told him his son's placement was based solely on subjective criteria. The counselor, however, denies that she ever met with petitioner in May, and instead states in her affidavit that she spoke to petitioner on the telephone after final examinations in June. She also claims that she explained that placement was based on several factors, including high achievement in seventh grade science, high motivation in science and a review of sixth grade PEP reading test scores.

During the selection process at the end of the 1991-92 school year, the guidance counselors discovered that recommendations from two of the seventh grade science teachers were incomplete and inconsistent. As a result, in September the school's placement committee decided to reevaluate the placement of 20 students, including petitioner's son, who had not been placed in Regents earth science. As described in the Hommocks handbook given to each student, the placement committee had the authority to reconsider class placement.

To reevaluate these 20 students, the Committee determined that all eighth grade students should study the same earth science curriculum for the first five weeks of the semester. The committee decided to reevaluate placement based on several criteria, including performance, work habits, motivation, lab reports, organizational ability and interest. Furthermore, the committee decided that the cut-off point for admitting students to Regents earth science would be an 85 average on the tests which were given. The counselor states in her affidavit that she called petitioner in September, told him that his son would be reevaluated and outlined the reevaluation criteria.

After the five week period, the placement committee met to review the records of the 20 students. Petitioner's son's test scores were 65, 65 and 82, with an average of 71, the fourth lowest average among the 20 students reviewed. As a result, he was not selected as one of 10 students for Regents earth science.

On October 21, 1992, petitioner met with the school principal and his son's counselor to review the district's refusal to place his son in earth science. Thereafter, petitioner met with both the superintendent and principal on November 4, 1992 and November 9, 1992. The principal and superintendent refused to place petitioner's son in Regents earth science. Petitioner commenced this appeal on November 30, 1992.

Petitioner maintains that respondent's selection process is discriminatory and violates the State and Federal Constitutions. Petitioner requests an order: (1) reversing and nullifying respondent's alleged policy of discrimination; (2) directing that petitioner's son and others similarly situated immediately be permitted to take earth science and other courses that said students applied for but were allegedly unfairly prevented from taking; and (3) directing that respondent's selection process be declared discriminatory and void.

As a threshold matter, respondent argues that petitioner may not maintain a class appeal. Furthermore, respondent denies that its selection process is discriminatory or unconstitutional and argues that the Commissioner should not rule on the constitutional issues raised by petitioner. Lastly, respondent maintains that a board of education has the authority to determine the placement of students in its advanced eighth grade programs.

Before addressing the merits, I will address petitioner's request to treat this matter as a class appeal. Petitioner seeks to bring this appeal on his son's behalf and on behalf of "all others similarly situated who during 1992 were eighth grade students at the Hommocks School and who, during that period, applied for and were denied placement in earth science and/or advanced mathematics (Course I)." A class appeal is permitted "only where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR '275.2[a]). Where the petitioner fails to set forth the number of individuals he seeks to represent, class status will not be permitted (Appeal of Rosenberg, 32 Ed Dept Rep 165; Appeal of the National Association for the Advancement of Colored People (NAACP), Schenectady Branch, et al., 30 id. 187; Appeal of Maynard, 28 id. 198). In this case, petitioner fails to set forth the number of individuals in the proposed class and, consequently, has failed to show that members of the class are so numerous that joinder is impracticable. Moreover, petitioner has not shown that all questions of fact would be common to all members of the class. Class status is, therefore, denied.

In this appeal, petitioner has alleged discrimination and a violation of several constitutional rights. To the extent petitioner raises constitutional claims, it is well settled that Education Law '310 is not the proper forum to decide novel questions of constitutional law (Appeal of Cassin, 32 Ed Dept Rep 373; Appeal of DeGroff, 31 Ed Dept Rep 332; Appeals of Malley, 31 id. 149; Appeal of Sepinski, 25 id. 183). If petitioner wishes to pursue his constitutional claims, he must do so in an appropriate judicial forum (Appeal of Cassin, supra; Appeal of DeGroff, supra).

Section 100.4(c) of the Commissioner's regulations provides that students in eighth grade shall have the opportunity to take high school courses in Regents mathematics and in at least one other area, including Regents science. This opportunity is subject to, among other things, a determination by the superintendent, or his designee, that the "student has demonstrated readiness in each subject in which he or she is to begin high school courses in the eighth grade . . ." (8 NYCRR '100.4[c][l][i]).

Moreover, pursuant to Education Law '1709(3), boards of education have 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 warrants. Consistent with that authority is the power to place students (Appeal of Kendrick, Decision No. 12887). The Commissioner has consistently held that he will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150; Appeal of Bartowski, 25 id. 52).

Based on my review of the record, I find that respondent has not acted arbitrarily or capriciously. Under respondent's policy, students are selected for Regents earth science based on certain standardized test scores and teacher recommendations which are predicated on students' grades in seventh grade science, students' motivation in science, and demonstrated ability to complete assigned tasks.

Prior decisions have held that standardized test scores may be used as part of the screening criteria for determining eligibility for enrichment programs as long as the standardized test scores are not the sole criteria (Appeal of Alexandreena D., 30 Ed Dept Rep 203 and 30 id. 462). The use of teacher recommendations as part of the screening criteria has also been held to be permissible (Appeal of DiMicelli, supra). Accordingly, I do not find respondent's use of sixth grade PEP scores and teacher recommendations, which are based in part on objective criteria, to be arbitrary or capricious.

Contrary to petitioner's claims, the school placement committee's efforts to reevaluate 20 students evidence respondent's concern for proper student placement. Petitioner's son was given every opportunity to demonstrate that he was ready to take Regents earth science. However, based on respondent's criteria, petitioner's son did not demonstrate readiness for earth science. His seventh grade science teacher, who was responsible for reviewing students' level of achievement in seventh grade science, failed to recommend petitioner's son. His sixth grade PEP score in reading was 67. After the five week reevaluation period, petitioner's son had the fourth lowest average test score, 14 points below the cut-off point selected by the placement committee. I, therefore, do not find that respondent's decision to deny petitioner's son placement in Regents earth science was arbitrary or capricious.

Petitioner also requests that I invalidate the process used in determining placement for respondent's advanced mathematics course. Inasmuch as petitioner makes no factual allegations regarding this process and submits no proof on this issue, I find that the petitioner has not met his burden of proof on this claim (Appeal of Pickreign, 28 Ed Dept Rep 163).

Although I find respondent's policy to be rational, respondent should consider changing its written policy on selection criteria for Regents earth science to comport with the actual standardized tests reviewed in its selection process.

THE APPEAL IS DISMISSED.

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