The opinion
Mario Pittoni, J.
Petitioner requests order directing Board of Education to admit Darren Pittman to First Grade.
Petitioner (mother of 6-year-old-boy) claims her son was demoted to kindergarten because he had been a ‘1 disciplinary problem ”, had been “ disruptive ” in class. Petitioner claims that this determination, (demotion to kindergarten), was arbitrary, capricious and unreasonable, and in violation of Fourteenth Amendment of United States Constitution, section 6 of article I of the New York Constitution, and of the New York Education Law (§ 3214, subd. 6).
Respondent Board of Education contends that Mary Kellar, principal of Gribbin School, made an “ educational decision” assigning Darren Pittman to kindergarten class based upon his inability to perform required first grade work, and his further inability to properly control his actions and submit to proper discipline in his first grade class.
Respondent contends it is required to regulate the admission and transfer of pupils as their scholarship shall warrant (Education Law, § 2503, subd. 4, par. d).
Petitioner has failed to rebut results of test indicating Darren’s inability to perform required first grade work (Scored 2 out of 102).
Darren was not suspended (Education Law, § 3214, subd. 6) from school; he was reassigned to different grade, that is, from first grade to kindergarten.
Furthermore, petitioner seemed to move prematurely. Other tests that might have a more conclusive result as to where he should be assigned were to be given Darren. Petitioner arbitrarily removed the child from school before the school district psychologist could test Darren.
Petitioner contends Darren should have been left in first grade while all testing was being done. It would appear the school authorities have the responsibility of assigning students to grade and unless done arbitrarily cannot be set aside.
Kindergarten is part of public school (Matter of Isquith v. Levitt, 285 App. Div. 833 ). A Board of Education has the power *53 to provide rules and regulations for promotion from grade to grade, based not on age, but on training, knowledge and ability.
Under the circumstances, it cannot be said that respondents were arbitrary, capricious and unreasonable. The petition is dismissed.