Appeal of T.K., on behalf of his daughter K.K., from action of the New York City Department of Education and the New Explorations into Science Technology and Math School regarding educational placement.

Decision No. 15,679

(October 18, 2007)

Schlam Stone & Dolan LLP, attorneys for petitioner, Thomas A. Kissane, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Janice Casey Silverberg, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the determination of the New York City Department of Education (“DOE”) and the New Explorations into Science, Technology and Math School (“NEST+m”) that his daughter, K.K., is not eligible to attend the gifted and talented education program at NEST+m.  The appeal must be dismissed.

In New York City, parents may apply for admission to gifted and talented programs on behalf of their children in the district in which they are zoned or in three citywide gifted and talented schools.  In September 2006, DOE announced criteria to be used for admission to self-contained gifted and talented programs.  The assessment for students in prekindergarten through grade two consisted of the Otis-Lennon School Ability Test (“OLSAT”) and the Gifted Rating Scale (“GRS”).  Furthermore, each citywide school based admission on an on-site interview, which was offered to all students who met its cut-score on the assessments.

Prior to the beginning of the 2007-2008 school year, petitioner applied for K.K.’s admission to kindergarten.  He applied to one district gifted and talented program, Lower Lab, and three citywide schools, NEST+m, The Anderson School and TAG Young Scholars School.  Petitioner designated NEST+m as K.K.’s first preference.  K.K. took the required OLSAT and GRS tests and met the cutoff score to qualify for an on-site assessment.  K.K. was assessed at NEST+m, but, according to respondents, did not rank high enough to be offered placement.  In accordance with petitioner’s indicated choice, she was then offered placement at Lower Lab.  This appealed ensued.  Petitioner’s request for interim relief was denied on June 29, 2007.

Petitioner contends that he was not provided with information on the admission criteria used in the on-site assessment despite repeated telephone calls, letters and Freedom of Information Law (“FOIL”) requests.  Petitioner alleges that K.K.’s test scores were superior to other students who were admitted to NEST+m and that NEST+m is closer to his residence than Lower Lab.  Petitioner argues that K.K.’s denial of admission was arbitrary and capricious because it lacked any articulated basis, failed to treat K.K. fairly, and failed to give her adequate consideration.  Petitioner maintains that the denial to NEST+m’s 2007-2008 kindergarten program effectively constitutes denial of admission for subsequent school years.  Petitioner seeks a determination that the denial of admission was arbitrary and capricious and that K.K. is entitled to admission at NEST+m.

Respondents allege that the complaint fails to state a claim upon which relief can be granted.  Respondents contend that petitioner cannot establish a right to placement in a school located near his home and that petitioner fails to demonstrate that K.K. was treated arbitrarily or unfairly.

A board of education possess 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]).  It has been repeatedly held that the Commissioner of Education 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 Alexandreena D., 30 Ed Dept Rep 203, Decision No. 12,433; Appeal of DiMicelli, 28 id. 327, Decision No. 12,125; Appeal of Henry Bartowski, 25 id. 52, Decision No. 11,495).

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioner has not met that burden here.

The record reflects that DOE adopted standard criteria for admission to self-contained gifted and talented programs such as NEST+m.  According to respondents, based on initial OLSAT and GRS tests, K.K. met the cutoff score for admission to NEST+m.  Accordingly, an on-site interview was conducted.  The kindergarten on-site evaluations were conducted by two teachers.  The evaluation consisted of assessing the student’s responses to questions about a story, the student’s activity in the block area, the student’s response to individual questions and the student’s work on patterns and shapes.  Teachers then discussed the student’s performance based on a rubric.  Based on K.K.’s on-site assessment score, she was ranked below the 110 students admitted to NEST+m, out of the 400 children who were invited for the on-site assessment.

Petitioner has not demonstrated that this process, on its face, or as administered, is illegal, arbitrary or capricious.  Therefore, I will not substitute my judgment for that of respondents.

Finally, Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Milazzo, 43 Ed Dept Rep 294, Decision No. 14,999; Appeals of Tesser and Kavitsky, 42 id. 341, Decision No. 14,876; Appeal of Rowe, 41 id. 189, Decision No. 14,660).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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

THE APPEAL IS DISMISSED.

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