Appeal of VICKI GERGELY, on behalf of her daughter ALEXIS, from action of the Board of Education of the Mount Sinai Union Free School District regarding educational placement.

Decision No. 15,742

(April 14, 2008)

Kevin A. Seaman, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the denial by the Board of Education of the Mount Sinai Union Free School District (“respondent”) of her request for a change in her daughter’s first grade class placement.  The appeal must be dismissed.

Petitioner’s daughter was assigned to Mrs. Nania’s first grade class for the 2007-2008 school year.  Prior to the beginning of the school year, petitioner informed the principal that she wished to have her daughter’s classroom assignment changed, due to alleged unacceptable behavior by the teacher.  The principal did not grant this request, and petitioner made a request for relief to the superintendent, which was denied.  By letter dated June 27, 2007, petitioner asked that respondent reconsider her request.  By letter dated July 6, 2007, the superintendent notified petitioner that respondent reviewed petitioner’s request, but took no action, thereby allowing the class assignment to stand.  This appeal ensued.

Petitioner contends that a change in placement is in her daughter’s best interest and requests that she be placed in another first grade class.  Respondent contends that petitioner has failed to meet her burden of proof in establishing that respondent’s determination is arbitrary, capricious or illegal.

A board of education has broad authority, under Education Law §1709(3), to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another.  Consistent with that authority, a board has the power to place students in particular classes (Appeal of J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  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 J.K. and M.B., 40 Ed Dept Rep 368, Decision No. 14,500; Appeal of Dawn H., 39 id. 635, Decision No. 14,336; Appeal of Reid, 32 id. 587, Decision No. 12,922).  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).

Respondent submits an affidavit of the superintendent discussing the factors the district considers when assigning students to classes.  According to the superintendent, the district strives to maintain a “heterogeneous and diverse cohort” for each class.  As such, the district considers “male:female ratios; high, low; [sic] and median academic achievement; the required ‘pull-outs’ for special education and AIS services” in addition to specific input from teachers and any other “consideration that would relate to establishing a diverse and heterogeneous grouping.”  The district’s policy only considers parental preference where a specific teacher had previously taught an older sibling of the child in question.  The district’s policy also provides for a parent to request a transfer after the first quarter of the school year.

Petitioner has failed to demonstrate that the district did not consider these factors in developing the first grade assignments in her child’s school.  Additionally, petitioner does not qualify for the consideration of preference under the district’s policy.  As such, the record indicates respondent’s decision was rationally based and was not arbitrary or capricious.

THE APPEAL IS DISMISSED.

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