Appeal of ANNA LEE, on behalf of her daughter ROSE, from action of the Board of Education of the Elmsford Union Free School District regarding denial of admission.

Decision No. 17,506

(September 24, 2018)

Keane & Beane, P.C., attorneys for respondent, Suzanne E. Volpe, Esq., of counsel

ELIA, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Elmsford Union Free School District (“respondent”) to permit her daughter, Anna (the “student”), to enroll in respondent’s district without the payment of tuition.  The appeal must be dismissed.

In an email to the principal of one of respondent’s elementary schools dated May 14, 2018, petitioner indicated that her daughter, who was born on January 24, “miss[ed] the ... cut-off” for admission to kindergarten “by 1 month.”  Petitioner further stated in the email that the student possessed the “readiness and maturity to enter kindergarten.”  Petitioner inquired as to “the best way to request consideration and approval for early entry into kindergarten ... for Rose in September 2018.”  Although the response is not included in the record, it appears that the principal responded to this email and indicated that the student was not entitled to enroll in respondent’s schools because she would not turn five on or before December 1, 2018.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 9, 2018.

Petitioner contends that the student is “socially and academically prepared” for kindergarten.  As evidence, petitioner submits an affidavit from the student’s teacher at a private preschool and samples of the student’s artwork and writing.  Petitioner seeks “[p]ermission” for the student to attend one of respondent’s elementary schools.”

Respondent contends that the appeal must be dismissed as premature because petitioner did not register or enroll the student in its district.  Respondent further contends that the petition fails to state a claim upon which relief may be granted because the student was not eligible to attend its public schools by virtue of her age.

Education Law §3202(1) provides, in pertinent part:

A person over five and under twenty-one years of age who has not received a high school diploma is entitled to attend the public schools maintained in the district in which such person resides without the payment of tuition.

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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Respondent first contends that the appeal must be dismissed as premature.  As a prerequisite to an appeal commenced pursuant to Education Law §310, a petitioner must exhaust administrative remedies when there is a legal mandate or applicable provision of law requiring exhaustion (Appeal of A.B., 57 Ed Dept Rep, Decision No. 17,316; Appeal of Jane Doe, 57 id., Decision No. 17,295; Appeal of a Student with a Disability, 44 id. 94, Decision No. 15,108; Appeal of Moultrie, 33 id. 89, Decision No. 12,987; Appeal of a Child with a Handicapping Condition, 32 id. 83, Decision No. 12,766). Section 100.2(y) of the Commissioner’s regulations establishes procedures for determinations by a board of education or its designee of residency or age for purposes of eligibility to attend the district’s public schools without the payment of tuition.  Section 100.2(y)(2) requires districts to make publicly available its enrollment forms, procedures and requirements for determination by a board of education of student residency and age, include such information in its enrollment/registration forms and provide such documents to parents who seek to enroll their children in the district. The Commissioner has previously ruled that, in light of §100.2(y), a petitioner is required to avail him or herself of the procedures established by the board of education, including procedures for review of a decision within the school district, and failure to do so may result in dismissal for failure to exhaust administrative remedies (see Appeal of A.F., 57 Ed Dept Rep, Decision No. 17,151; Appeal of Peppaceno, 55 id., Decision No. 16,807; Appeal of Murillo, 55 id., Decision No. 16,806; Appeal of Moultrie, 33 id. 89, Decision No. 12,987).

The record indicates that petitioner sent an email to a building principal on May 14, 2018 seeking advice on the best way to obtain approval of the early admission of the student to kindergarten in September 2018.  The building principal attests that he responded in an email on May 15, 2018 and told petitioner that the student is not entitled under the Education Law to enroll in the district’s schools in the 2018-2019 school year because she would not turn five years of age on or before December 1, 2018.   The building principal also attests that petitioner did not submit an application for registration of the student to him or, upon information and belief, to anyone in the district.  Petitioner did not submit a reply and has not rebutted the principal’s allegations.

Thus, on this record, it appears that petitioner did not submit an enrollment/registration form to respondent and has not obtained a final decision from respondent denying admission of the student.  Petitioner has not proven that she had any basis for believing that the building principal’s response in an informal email exchange triggered by a request for advice constituted a final determination by the school district.  Petitioner did not attempt to utilize respondent’s procedures for registration, much less pursue any internal review procedures for review of the principal’s suggestion that the student was ineligible for enrollment in the 2018-2019 school year.  Therefore, I find that this appeal must be dismissed for failure to exhaust administrative remedies.

As respondent argues, the appeal is also premature and would be subject to dismissal on that basis.   The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  Because petitioner has not yet made an application for enrollment/registration and respondent did not reject the application and deny the student’s enrollment, the appeal is premature.

However, even assuming, arguendo, that this appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Education Law §3202(1) provides, in pertinent part, “[n]othing ... shall ... require a board of education to admit a child who becomes five years of age after the school year has commenced unless his birthday occurs on or before the first of December.”  Respondent’s policy 5150 similarly indicates that only children “between the ages of five and twenty-one” are entitled to attend its schools tuition-free.  Since the student will not be five until January 2019, respondent acted within its discretion in refusing her admission for the 2018-2019 school year (see Appeal of L.T., 47 Ed Dept Rep 23, Decision No. 15,609; Matter of Sollitto, 31 id. 138, Decision No. 12,595).  While a board of education may admit children at an earlier age in its discretion, a parent cannot compel such an exercise of discretion (Matter of Sollitto, 31 Ed Dept Rep 138, Decision No. 12,595).

THE APPEAL IS DISMISSED.

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