Appeal of M.F. and T.L., on behalf of N.F.-L., from action of the New York City Department of Education regarding class placement.

Decision No. 15,234

(May 23, 2005)

Michael A. Cardozo, Corporation Counsel for the City of New York, Martin Bowe, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge a decision of the New York City Department of Education ("respondent") to retain their daughter in fifth grade for the 2004-2005 school year. The appeal must be dismissed.

Petitioners' daughter attended the fifth grade at the Clara Cardwell School, P.S./I.S. 308, in Brooklyn during the 2003-2004 school year. On April 5, 2004, respondent revised its policy for student promotion from the fifth grade as follows:

Promotion from Grades 5, 6, and 7 for General Education and Special Education Students and English Language Learners Tested in English

1) meet New York City Performance Standards in Language Arts and Mathematics as evidenced by student work, teacher observation and assessment/grades;

2) achieve at or above Proficiency Level 2 on the Citywide ELA assessment;

3) achieve at or above Proficiency Level 2 on the Citywide Mathematics assessment;

4) attain 90% attendance.

[Chancellor's Regulation A-501(6)(J)]

Beginning in September 2003, based upon the student's poor performance in mathematics in the fourth grade, she was enrolled in a mathematics intervention class until April 2004 to prepare her for the Citywide Mathematics Assessment. In January 2004, petitioners were informed that their daughter was at risk of being retained based upon her receiving a grade of 55 in mathematics. Petitioners' daughter received a failing grade of 55 in mathematics for each of the four marking periods during the 2003-2004 school year and the lowest score of Proficiency Level 1 on the Citywide mathematics assessment administered in April 2004. The test results were forwarded to the school and petitioners in early June 2004.

By letter dated June 16, 2004, petitioners were informed that their daughter would not participate in the promotion ceremony on June 18, 2004 due to her Citywide and classroom assessments in mathematics. Petitioners met with the assistant principal on June 16, 2004 and the principal on June 17, 2004. On June 17, 2004, petitioners met with the regional superintendent, who upheld the decision not to promote the student from the fifth grade.

On July 6, 2004, petitioners enrolled their daughter in summer school classes for English and Math. At the conclusion of the summer session on August 9, 2004, the student again sat for the standardized mathematics exam and received another score of Proficiency Level 1.

On August 12, 2004, the student's mother met with the regional superintendent. By letter dated August 30, 2004, petitioners were informed that the community superintendent upheld the decision to retain their daughter in the fifth grade, based on her mathematics classroom course work, data from both spring and summer sessions and standardized tests. Petitioners commenced this appeal and, on September 14, 2004, petitioners' request for interim relief was denied.

Petitioners contend that it is unfair to retain their daughter in the fifth grade because of one mathematics examination and grade when she was passing her other subjects. Petitioners contend they should have received notice earlier than June 16, 2004 that their daughter would not participate in the June 18, 2004 graduation ceremony. Petitioners contend that other children with the same issues as their daughter were allowed to participate in the ceremony. Petitioners also question their daughter's grade in mathematics.

Respondent contends that the determination to retain petitioners' daughter in fifth grade had a rational basis because the student failed to meet the standards for promotion from the fifth grade as set forth in Chancellor's Regulation A-501(6)(J). Respondent contends that it is in the student's best interest to be retained in fifth grade so that she can acquire the necessary skills, since she failed to achieve the minimum required proficiency in the mathematics assessment after intervention services during the 2003-2004 school year and the 2004 summer school session.

Education Law �1709(3) authorizes a board of education "to prescribe the course of study by which 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." Consistent with that authority, boards have the power to place students in particular classes (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). The Commissioner 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 of Hillhouse, 41 Ed Dept Rep 385, Decision No. 14,720; Appeal of a Student with a Disability, supra; Appeal of J.K. and M.B., supra). In New York City, the powers of the board of education in this regard are exercised by the Chancellor (Education Law ��2554[1] and 2590-h[17]).

In an appeal to the Commissioner, petitioners have the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which they seek relief (8 NYCRR �275.10; Appeal of a Student with a Disability, supra; Appeal of Dawn H., supra). Petitioners have not met their burden of showing that respondent's decision to retain their daughter in fifth grade was illegal, arbitrary or capricious.

Based on the record before me, I find that respondent has not acted arbitrarily or capriciously. Rather, respondent's determination is rationally based upon its standard for promotion from grades 5, 6 and 7, as set forth in Chancellor' s Regulation A-501(6)(J). That standard was promulgated to ensure that students advance in grade level only where they demonstrate the knowledge to succeed in the next grade.

I have considered petitioners' remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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