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Legal Eagle
Legal Eagle, Education lawyer
Category: Education Law
Satisfied Customers: 5291
Experience:  Extensive education law experience
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Live in NY. We would like to retain our boy to repeat 1st

Customer Question

Live in NY. We would like to retain our boy to repeat 1st grade. He is way behind on spelling, reading etc. He has a late Oct birth date, so we feel holding him back now will bring big benefits to him down the road. We should have done it for Kindergarten, but the school talked us out of it. We met with his teachers and principal and they WILL NOT retain him. They said they he is just over the border to move up, and will continue to work with him, but we feel he will struggle. We do not want him to fall behind every year and suffer mentally and knowledge-wise. My family in Chicago and NJ said their schools would side with the parent, but NY does not. We are meeting with the school Supt. at 1;0 pm today, so I was curious what rights we have if any to fight their decision?
JA: Have you spoken to an attorney or school administrator about this?
Customer: It's in my message.... many meeting with teacher and had had meeting with teachers and Principal. Meeting School Superintendent today. No attorney consult yet.
JA: Is it a public or private institution?
Customer: public
JA: Anything else you want the lawyer to know before I connect you?
Customer: Considered sending him to Catholic school for 1 year (repeating 1st grade) then bring him back, but was told by Principal that if we did that they would still put him in 3rd grade and have him SKIP 2nd grade! Can they do that?
Submitted: 2 months ago.
Category: Education Law
Expert:  Legal Eagle replied 2 months ago.

Hello! I am a licensed attorney, admitted to practice in state and federal court. I have a nearly 100% satisfaction rating so all that means is that you can count on me to help today. I specialize in education law and I have represented public schools in the past so I can help you out. In your case, generally the district is going to be looking to what the rules and policies are regarding promotion and retention. Most of the time, the rules regarding promotion and retention or going to be based on several factors. Those factors include teacher feedback the rules regarding promotion and retention are going to be based on several factors. Those factors include teacher feedback, test scores, and their grades. the school will probably tell you if they believe with all things considered that the child should be moved up to the next grade, then that's what they are going to do. Parents generally do not have an absolute right to hold their child back a grade at all if the district policies are consistent with moving the child up.

This is where it's going to be important that you use your business ociation skills if you truly feel as if your child needs to be retained. One of the things that you could do is make sure that you are bringing the test scores and grades of the child to this meeting to help explain to the administrators that you believe that this is going to do more harm than good. if you have his test scores from previous years and you've seen a decline, be sure to bring that as well.

In the worst case scenario, you may be able to file a complaint with the New York Department of Education explaining that your child is not receiving an education that is Promised by the law. You can explain that because your child needs to be held back, but they are being promoted unfairly, then your child is not receiving the kind of education that is going to help them be successful. What will happen is that the Department of Education will conduct an investigation and look at those same things that I told you to bring, which include the test scores and will also include interviews with the administrators and teachers as well. They may also interview you to make a determination that Mane of overruling the superintendent as well.

Before you rate, did you have any questions for me regarding this?

Customer: replied 2 months ago.
If I sent my child to repeat 1st grade in our local Catholic elementary school, is it true that they can place him in 3rd grade (skipping 2nd grade all together) once I brought him back the following year to the public elementary school? That seems absurd and was stated to me by the principal.
Expert:  Legal Eagle replied 2 months ago.

The answer to your question is yes. They would be able to have him skip the second grade if he meets all of the necessary milestones for 2nd grade. Keep in mind that there are children who are not held back that skip grades all of the time. It is likely that they would need to test him to make sure that he is meeting the third grade benchmarks, but if he does then he would be able to the Advance degrade without having to go through second. Did you have any other questions for me?

Customer: replied 2 months ago.
Are there any grounds to take legal action against the school district? After doing some research, I found out that 43 out of 50 states have a cut off before NY. Meaning, in those states my child would be a year behind in which he currently is. That seems remarkable. I also found that in most states the parents wishes are take precedent over state guidelines. My mother-in-law has been a 30 year tenured 1st grade teacher in NJ and she recommends retaining him, as well as many other friends who are teachers. Also, would it be worthwhile to mention we are looking into our legal options to try and intimidate them into bending to our wishes? We live in a small town in Orange County, so I am wondering if the prospect of a fight might get them to bend. Any other advice you can offer would be appreciated. My meeting is today.
Expert:  Legal Eagle replied 2 months ago.

Well, the most legal action that you could and should take is through their complaint procedures, explaining that your son is not being educated in a manner consistent with their policies. You can click here to find a copy of the complaint form.

What I have found sometimes is that it is possible to intimidate them, but what I usually recommend saying is, "The law allows us to file a complaint with the state department of education so it's best if we settle this informally."

They may agree with you and they may work on finding something that is going to work out better for everyone.

Also, is your son on an IEP? If not, has he ever been tested for a disability?

Customer: replied 2 months ago.
What is an IEP?
Expert:  Legal Eagle replied 2 months ago.

An IEP is an individualized education program. Sometimes, students that may be struggling in school maybe dealing with a disability that parents don't know about. For example, he may be dealing with dyslexia or some sort of specific learning Typically, it is the legal obligation of the school district to ensure that they are testing children Who may be suffering from a disability that is impacting their ability to learn in school. If they conduct an assessment of your child and determined that he needs specialized supports and services, things like extended time on homework assignments or maybe a software program that reads the words on his computer to him, then it's going to be written into an individualized education program for him. This may be something that you want to bring up in the meeting to explain that your child has probably not been tested for special education and it's School's obligation to do so.

Expert:  Legal Eagle replied 2 months ago.

Hello, it’s been awhile since we connected so I wanted to check in with you to see if you had any further questions or if there is anything else I can assist you with today. Please reply here and let me know. Thank you.