Appeal of CHRISTOPHER TOZZI, on behalf of his child, from action of the Board of Education of the City School District of the City of Troy regarding universal prekindergarten enrollment.

Decision No. 18,497

(September 23, 2024)

Guercio & Guercio, LLP, attorneys for respondent, Anthony J. Fasano, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals the actions of the Board of Education of the City School District of the City of Troy (“respondent”) that his child (the “student”) is not eligible to attend respondent’s universal prekindergarten (UPK) program for the 2024-2025 school year.  The appeal must be dismissed.

Petitioner sought to enroll the student, who will turn five years old by December 1, 2024, in respondent’s UPK program for the 2024-2025 school year.  Respondent determined that the student was ineligible for UPK because he met the age requirement to attend kindergarten for that school year.  This appeal ensued.

Petitioner contends that the student should be admitted to respondent’s UPK program because the student will be over four years old by December 1, 2024.  Petitioner also contends that he has a right to enroll the in UPK because Education Law § 3205 does not require that the student attend kindergarten.[1] 

Respondent argues that its determination is supported by law and State Education Department guidance. 

State regulations identify the purpose of the universal prekindergarten program as “provid[ing] four-year-old children with universal opportunity to access prekindergarten programs” (8 NYCRR 151-1.1).  Education Law § 3602-e, the statute governing the universal prekindergarten program, defines “eligible children” as

resident children who are four years of age on or before December first of the year in which they are enrolled or who will otherwise be first eligible to enter public school kindergarten commencing with the following school year.[2]

Guidance issued by the State Education Department clarifies that, for districts such as respondent whose cutoff date for kindergarten is December 1, “a child who turns five years of age on November 30 would be eligible for kindergarten, not State-Administered Prekindergarten” (NYSED Early Learning, Frequently Asked Questions, available at https://www.nysed.gov/early-learning/frequently-asked-questions-faq [last accessed Sept. 19, 2024]).

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).

Petitioner has not met his burden of proving a clear right for the student to attend UPK in the 2024-2025 school year (Appeal of C.T., 57 Ed Dept Rep, Decision No. 17,123).  The student will turn five years old in November 2024, which is before December 1, 2024.  Moreover, the student is first eligible to attend kindergarten in the 2024-2025 school year (Education Law § 3202 [1]).  The fact that kindergarten is not compulsory is not relevant to UPK’s statutory eligibility requirements.  Accordingly, respondent appropriately determined that the student was ineligible for UPK for the 2024-2025 school year.

THE APPEAL IS DISMISSED.

END OF FILE