Isquith v. Levitt

285 A.D. 833, 137 N.Y.S.2d 497, 1955 N.Y. App. Div. LEXIS 5731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 24, 1955
• Status: Published

Opinion

Petitioner’s son was born on January 12, 1949. In September, 1953, the child was admitted to afternoon kindergarten at Public School 161, Brooklyn. After the child reached the age of five on January 12, 1954, two attempts were made to have him registered for first grade at that school, but such registration was refused. This article 78 proceeding was thereafter brought to direct the board of education to register the child in the first grade, on the ground that a child of five years of age is entitled to attend public school (Education Law, § 3202, subd. 1), and a kindergarten is not within the term public school. The application was denied. Order unanimously affirmed, without costs. Once a kindergarten has been established, it becomes a part of the public school system, despite the fact that the maintenance of a kindergarten is discretionary with the board of education. When petitioner’s child reached the age of five years, he was entitled to attend public school (Education Law, § 3202, subd. 1), but his parents did not have the right to insist that the child be admitted to a particular grade or class in the public school. After a child is admitted to a public school, the board of education has the power to provide rules and regulations for promotion from grade to grade, based not on age, but on training, knowledge and ability. (Matter of Clark, 67 N. Y. St. Dept. Rep. 3; Matter of Barrett, 50 N. Y. St. Dept. Rep. 481.) Present — Nolan, P. J., Wenzel, MacCrate, Schmidt and Beldock, JJ.