Appeal of M.P., on behalf of her daughter M.R.P., from action of the Board of Education of the Hewlett-Woodmere Union Free School District regarding admission to kindergarten.

Decision No. 17,976

(March 29, 2021)

Law Offices of Thomas M. Volz, PLLC, attorneys for respondent, Anthony S. DeLuca, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the decision of the Board of Education of the Hewlett-Woodmere Union Free School District (“respondent”) to deny her request to enroll her daughter (“the student”) in kindergarten.  The appeal must be dismissed.

As relevant here, respondent’s policy 5150 provides, in conformity with Education Law §3202(1), that “[c]hildren reaching the age of five on or before December 1st of any year will be eligible for admission to kindergarten in the preceding September.”  Additionally, respondent’s regulation 5150, which is attendant to policy 5150, provides that “[c]hronological age shall be the sole basis for initial admission to kindergarten” and that “[c]hildren reaching the age of five after December 1st will not be eligible for kindergarten until the following September.”

In August 2020, petitioner submitted a registration packet to enroll the student in kindergarten for the 2020-2021 school year.  Initially, a district employee indicated to petitioner that she could enroll the student in kindergarten so long as she demonstrated that the student had completed a pre-kindergarten program.  Subsequently, in a letter dated September 1, 2020, respondent’s business administrator informed petitioner that, pursuant to policy 5150, the student was not eligible to enroll in kindergarten in the district for the 2020-2021 school year because she would not reach the age of five on or before December 1, 2020.  This appeal ensued.  Petitioner’s request for interim relief was denied on September 23, 2020. 

Petitioner contends that the student should be permitted to attend kindergarten in respondent’s schools due to her completion of pre-kindergarten in another district during the 2019-2020 school year.  Further, she alleges that respondent’s registrar advised her that the student would be eligible to enroll in kindergarten.  Petitioner requests a determination that the student is entitled to enroll in kindergarten in one of respondent’s elementary schools for the 2020-2021 academic year. 

Respondent contends, among other things, that its decision to deny the student early admission to kindergarten was rational, made in accordance with Education Law §3202, and consistent with its policy and regulation. 

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....  Nothing herein contained shall, however, require a board of education to admit a child who becomes five years of age after the school year has commenced unless his [or her] birthday occurs on or before the first of December.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Here, petitioner has failed to prove that respondent erred in denying the student admission to kindergarten for the 2020-2021 school year.  The record reflects that the student was not yet five years old on or before December 1, 2020.  Accordingly, respondent acted within its discretion in refusing the student admission to kindergarten for the 2020-2021 school year based upon Education Law §3202(1) as well as respondent’s policy and regulation 5150 (see Appeal of Lee, 58 Ed Dept Rep, Decision No. 17,506; Appeal of L.T., 47 id. 23, Decision No. 15,609; Appeal of Sollitto, 31 id. 138, Decision No. 12,595).  While a board of education may admit children younger than five years old in its discretion, a parent cannot compel such an act of discretion (Appeal of Lee, 58 Ed Dept Rep, Decision No. 17,506; Appeal of Sollitto, 31 id. 138, Decision No. 12,595).

I acknowledge, as respondent admits, that the registrar erroneously suggested to petitioner that she could enroll the student in kindergarten in fall 2020 if she produced proof that she had completed pre-kindergarten.  While it is unfortunate that petitioner was provided with erroneous advice, such advice does not provide a basis to contravene the plain language of Education Law §3202 (see Appeal of D.S., 59 Ed Dept Rep, Decision No. 17,770; Appeal of Ahn, 41 id. 413, Decision No. 14,729).

In light of this determination, I need not address the parties’ remaining contentions, including respondent’s procedural arguments.

THE APPEAL IS DISMISSED.

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