We are faced with the determination of a delicate issue—whether the plaintiff was deprived of an adequate and suitable education for the 12-year period between 1957 and 1969, by reason of the defendant’s alleged negligent evaluation of his intelligence and its failure to retest his I.Q. during those years.
After careful scrutiny of the testimony, I conclude that the initial placement of the plaintiff in the educational system was made in a proper manner and that retesting by giving another I.Q. test was not indicated during the period in question. The plaintiff has failed to establish the defendant’s negligence on any of the alleged theories of liability. I would, *388accordingly, reverse the judgment, on the law, direct a verdict in favor of the defendant and dismiss the complaint, without costs or disbursements.
Although the majority opinion sets forth a detailed statement of the facts, for the purpose of my dissent, I deem it necessary to reiterate a large portion of those facts, and to include additional ones.
The plaintiff, Danny Hoffman, has had a severe speech impediment throughout most of his life. In February, 1956, when the plaintiff was nearly five years old, his mother took him to the National Hospital for Speech Disorders. Its records noted that he had little or no intelligible speech and that he appeared to be retarded.
On March 5, 1956 the plaintiff’s intelligence was tested at that hospital at his mother’s request. He was given a Merrill-Palmer (nonverbal) intelligence test, upon which he attained an I.Q. score of 90. This was well within the range of normal intelligence. It was found that he could work well into the average and even brighter range. Plaintiff was then placed in the New York Speech Institute for weekly therapy. Such treatment continued until he was enrolled in his first special education class.
Plaintiff commenced his formal education in September, 1956 at the age of five and one-half years. At the recommendation of his teacher, who observed "Mongoloid tendencies”, severe speech defects and slow responses, Danny’s I.Q. was individually tested. In January, 1957 Dr. Monroe C. Gottsegen, a psychologist from the Board of Education’s Bureau of Child Guidance, administered a Stanford-Binet (verbal) I.Q. test. In his report, dated January 23, 1957, Dr. Gottsegen concluded that the plaintiff was eligible for placement in a class for children with retarded mental development (CRMD) and stated that:
"Danny impresses as [sic] a shy, cooperative youngster. Mongoloid features are observable. There is a marked speech defect which makes Danny hesitant in speaking up. He obviously understands more than he is able to communicate. With careful listening, it is frequently possible to understand what he is driving at.
"On the Stanford-Binet, L, he achieves a mental age of 4-3 and an I.Q. of 74, indicating borderline intelligence. The obtained I.Q. may be higher than it ought to be as the *389Examiner was confronted with the task of having to interpret what Danny was trying to say, Danny being given the beneñt of the doubt when it seemed reasonable to do so.
"Danny is frequently bored in class and needs a specialized, individualized teaching program. At this point, a continued, yet varied readiness program should be offered him. He is not yet able to do formal learning. He needs help with his speech problem in order that he be able to learn to make himself understood. Also, his intelligence should be re-evaluated within a two year period so that a more accurate estimation of his abilities can be made. ” (Emphasis supplied.)
A CRMD class consists of a maximum of 18 students who have an I.Q. between 50 and 75. These children are considered to be capable of some degree of learning and are taught academic subjects such as reading and arithmetic in the earlier grades and additional subjects such a social studies and geography in the later grades.
Plaintiff attended CRMD classes in various schools for 11 years. During those years, he was taught, tested and observed by experienced teachers trained to work with retarded children. Danny’s school records indicated that he was generally well behaved, pleasant, co-operative and well liked by his teachers. However, academically he performed unsatisfactorily in reading, mathematical concepts and oral communications.
Danny’s I.Q. had never been retested at any point during his placement in CRMD classes. During that period, it was the policy of the board of education not to retest a CRMD student unless such retesting was recommended by the student’s teachers or requested by the parents. None of the plaintiff’s teachers or his mother requested a retesting during this period. Nevertheless, the plaintiff was given standardized achievement tests semiannually in reading and mathematics similar to those tests given to students in regular classes. The results of such tests were discouraging. The plaintiff’s grades and his corresponding chronological age at the time, were as follows:
DATE CHRONOLOGICAL AGE READING MATH AT TIME OF TEST GRADE GRADE
1961 10 yrs, 6 mos 1.6 1.7
1962 11 yrs, 6 mos 1.6 2.3
1963 12 yrs, 6 mos 1.6 2.2
1964 13 yrs, 5 mos 1.7 2.6
1965 14 yrs, 6 mos 1.9 3.7
1967 16 yrs 2.8 4.0
*390In September, 1968 the plaintiff was transferred to the Queens Occupational Training Center, a manual and shop training school for retarded youths. Thereafter, on May 12, 1969, at his mother’s request, the plaintiff was administered an intelligence test known as the Wechsler intelligence scale for adults by Dr. William F. Garber of the Bureau of Child Guidance. Danny, then 18 years of age, scored a verbal I.Q. of 85 and a performance I.Q. of 107, giving him a full scale I.Q. score of 94. The report of Dr. Garber recommended that the plaintiff return to regular classes. The doctor recorded the following findings:
"Danny is being reevaluated as to intellectual status, following an interview with his mother, who came to the school very much disturbed because her son has been rejected by Social Security for continuance of payments after the age of 18, the S.S.A. feeling he was not sufficiently handicapped by his retarded status to pursue gainful employment. On January 9, 1957, the Bureau of Child Guidance found a Binet I.Q. of 74.
"He is a tall, well-built boy, alert looking and charming in manner, who is so incapacitated by a speech defect that communication is difficult for him. He relates very well, displays humor, and appears reality oriented. * * *
"This boy has above average intellectual potential and a good personality structure. Due to his being almost immobilized in the speech area, as well as considering his extremely defective academic background, he would find it difficult, if not impossible, to function in a regular high school. Psychomotor coordination is good however. Referral to [Division of Vocational Rehabilitation of the State Education Department] is suggested for specialized training and alleviation of the speech problem.”
Based upon Dr. Garber’s findings and recommendation, Danny was terminated from the Occupational Training Center in September, 1969, at the commencement of his second year. The plaintiff was advised that he could not continue at the center because the results of the May, 1969 I.Q. test indicated that he was not sufficiently handicapped by his retarded status to preclude his obtaining gainful employment.
Thereafter, plaintiff commenced this action to recover damages for the injuries which resulted from his placement in CRMD classes. The complaint alleges two theories of liability: *391(1) the defendant was negligent in its original testing procedures and placement of the plaintiff, causing or permitting him to be placed in an educational environment for mental defectives and mentally retarded children and consequently depriving him of adequate speech therapy which would have improved his only real handicap, a speech impediment; and (2) the defendant was negligent in failing or refusing to follow adequate procedures for the recommended retesting of the plaintiffs I.Q.
The defendant took the position that the plaintiff’s score of 74 on the Stanford-Binet I.Q. test indicated that the plaintiffs placement in a CRMD class was proper. The defendant contends that the test was proper and administered by a competent and experienced psychologist. The defendant further alleges that it was the unanimous professional judgment of plaintiffs teachers, based upon their evaluation and the plaintiffs performance on his standardized achievement tests, that a retest of the plaintiff was not warranted. The board makes clear that it was its policy to retest only where recommended by the teachers or requested by the parents.
The two theories of liability as pleaded in the complaint were submitted to the jury. The jury returned a general verdict in favor of the plaintiff awarding him damages of $750,000. On this appeal the defendant challenges, inter alia, each theory of liability on the ground that the plaintiff failed to sustain his burden of proving his claim as a matter of law and therefore neither theory of liability should have been submitted to the jury.
I find merit in the defendant’s position. It is conceivable that a case of educational malpractice may be pleaded and established against a board of education for an act of misfeasance. However, the plaintiff in the instant case has failed to establish the negligence of the defendant by its breach of a duty owed to the plaintiff under either theory of liability. Therefore, the plaintiff’s complaint should have been dismissed at the close of the entire case.
Taking each theory of liability in turn, it is apparent that the evdience does not support the plaintiff’s position. In support of the first theory, the plaintiff attempted to establish, by a series of inferences, that Dr. Gottsegen’s administration of the Stanford-Binet verbal I.Q. test in 1957 was improper.
The thrust of plaintiff’s evidence on this issue was that on account of plaintiff’s severe speech disability, Dr. Gottsegen *392should not have administered a Stanford-Binet test, which relies heavily upon verbal responses. However, plaintiffs own witness, Dr. Lawrence Abt, a clinical psychologist, testified that the Stanford-Binet test was one of the tests that might have been used and declined to testify that Dr. Gottsegen’s failure to administer a performance test had been a departure from good psychological practice. None of plaintiffs expert witnesses testified that Dr. Gottsegen had departed from good psychological practice by administering a Stanford-Binet test. Defendant’s witness, Dr. Henry Lipton, a clinical psychologist, testified that the Stanford-Binet test would certainly have been the preferred test for a child six years old. In fact, other witnesses testified that the 1957 test record indicated that Dr. Gottsegen had taken plaintiffs speech disability into account and had compensated therefor in interpreting the results of the test. Although Dr. Abt stated that it would have been wise for Dr. Gottsegen to supplement the verbal I.Q. test with the nonverbal I.Q. test, we cannot infer from this that it was unwise not to supplement it. Nor can we infer that there was a deviation from accepted or standard psychological practice not to do so.
Moreover, we cannot utilize the 1956 intelligence test administered by the National Hospital for Speech Disorders and the 1969 intelligence test administered by Dr. Garber to draw a circumstantial inference that Dr. Gottsegen had negligently administered or interpreted the 1957 Stanford-Binet test. Dr. Abt testified on direct examination that a child with an average intelligence might obtain an I.Q. score of 74 or less if he did not take the test seriously or if the test had been administered incorrectly, or if the test results had been incorrectly interpreted. Thus, the inference drawn by Dr. Abt was as consistent with the absence of liability as it was with liability. Where inferences are clearly equally consistent, the one with liability and the other with no cause of action, the plaintiff has not met the burden which the law has placed upon him (Ford v McAdoo, 231 NY 155, 162).
Under the circumstances, I am of the opinion that, upon all of the evidence, plaintiff did not prove that Dr. Gottsegen had negligently administered or interpreted the Stanford-Binet test. Accordingly, this issue should not have been submitted to the jury and the complaint should have been dismissed at the close of the entire case.
The plaintiff’s second theory of liability is essentially built *393on Dr. Gottsegen’s testimony at the trial that he recommended a retesting. He stated that:
"I was able to communicate with him, but I wasn’t sure about what I was doing because the communication was coming out very muddy. It was like listening to a radio at a very low level, with a lot of static. You think you know what is being said, but you can’t be that sure, and I think that comes through here, that I really wasn’t sure and that’s why we wanted him retested within two years. This was always Bureau procedure. We were always concerned in the B.C.G. not to make mistakes with kids and we were careful to see to it if we had doubts about what we were doing, that we recommend that he be retested and say it, and that’s what happened here. * * *
"It was my feeling there was retardation, but I doubted some of the results and therefore I suggested a retesting.”
In his opinion Mr. Justice Shapiro observes that: "Since Dr. Gottsegen’s written recommendation was that plaintiff’s Intelligence should be re-evaluated within a two year period’ it could only mean that he was to be administered a new I.Q. test within that period. If it did not have that meaning, it meant nothing, since a CRMD child is always being observed by his teacher for signs of improvement, and achievement tests were being given semiannually to all CRMD children.”
However, after a study of Dr. Gottsegen’s entire testimony, and a comparison of its contents with the testimony of the plaintiff’s teachers, I have come to discount his testimony entirely. First of all, Dr. Gottsegen’s testimony at the trial that he recommended a "retesting” of the plaintiff, was totally inconsistent with his written report, recorded 18 years earlier, that the plaintiff be "re-evaluated”. Dr. Gottsegen’s explanation at the trial, that he intended or meant by the directive "re-evaluate” that the plaintiff be in fact "retested”, is not persuasive. The doctor communicated the word "re-evaluate”. "Re-evaluate” is a term of art that has a specific connotation. Therefore the defendant must be judged in the context of its compliance with the recommendation that was made and not with a recommendation that was possibly intended in retrospect.
It is very clear from the record that prior to 1968, retesting was not the policy of the board of education unless such retesting was requested by the student’s teacher or parents. Dr. Gottsegen’s testimony that he believed that retesting was *394the policy is irrelevant. His short association as an employee of the board of education could well explain his unfamiliarity with the board’s policy. He was employed by the board for only the short week before he administered the test to the plaintiff and he left the board’s employ the following year, in September, 1958.
At the trial, Dr. Gottsegen could not recall the nature of Danny’s severe speech defect, which was markedly clear at the time of the examination, as the doctor noted in his report. This is a further indication of the witness’ inability to recall the circumstances of the testing and examination. Not that Danny’s isolated case should have, as a matter of course, stood out in Dr. Gottsegen’s mind, among the thousands of tests administered and evaluated by him during the 18 years that intervened between Danny’s 1957 tests and the trial.
The disparities between Dr. Gottsegen’s written report and his in-court testimony, together with his limited association with the defendant, leads us to conclude that his credibility has been strongly impaired. I have therefore discounted his testimony as a matter of law.
With the removal of Dr. Gottsegen’s testimony the plaintiffs case collapses. In its void the defendant developed a justification for its failure to retest the plaintiffs I.Q.
Miss Madeline Dalton was employed by the board of education for 35 years, first as a teacher of retarded children, later as a supervisor and, since 1968, as Director of the Bureau of Children with Retarded Mental Development. She explained that during the period in question there were generally 13,000 to 14,000 CRMD pupils in the system. Each year the I.Q. of approximately 500 of these pupils was formally retested. The remaining pupils were being re-evaluated each year as to their "functional level” to determine whether a retest of their I.Q. was warranted, on the basis of performance in class and on standardized achievement tests. Of the 500 retested each year about 125, or one fourth, were returned to regular classes. Miss Dalton testified that in the plaintiffs case not one of his teachers ever recommended a retest of his I.Q. or considered it advisable that he be placed in a regular class. Nothing in Danny’s record indicated to her that he could have functioned in a normal class.
The defendant’s witnesses distinguished between the terms "retest” and "re-evaluate”. Miss Dalton explained that while the plaintiff was in attendance in the CRMD classes, the term *395"re-evaluate” meant the administration of semiannual achievement tests. A retesting would involve the administration of a new I.Q. test. If a CRMD student demonstrated, upon re-evaluation by his performance on the semiannual achievement tests, that he was able to function beyond his expectancy level, he was then administered a new I.Q. test.
Dr. Donald Wiedis, a professor and licensed supervisor of school psychology, who trained school psychologists for the board of education, confirmed, the distinction between "reevaluate” and "retest”. He explained that "re-evaluate” means merely "taking another look” at the child’s record to discern whether there was a perceivable jump in scores on a series of achievement tests. The term did not necessarily imply a formal retest of the subject child’s I.Q. The only conclusion that can be drawn from the defendant’s evidence, is that the term "re-evaluate” was a term of art with a precise meaning. The plaintiff never rebutted this conclusion.
It has been established that the pre-1968 policy of the board of education was to re-evaluate CRMD students. This policy itself has not been challenged by the plaintiff at any time. Miss Dalton, who conceded that a policy of periodic retesting of a child’s I.Q. would have been preferable to a policy of testing only upon a teacher’s recommendation or parent’s request, testified nevertheless that she did not regard the board policy to have been improper at that time.
I have examined the record for evidence establishing that the plaintiff had in fact been re-evaluated according to the then existing policy. I find that he was regularly re-evaluated. The plaintiff was given standard achievement tests in mathematics and reading for the years 1960 through 1967, inclusive. Dr. Lipton testified that although an achievement test is not the equivalent of an I.Q. test, he believed that such test demonstrates a child’s academic performance. Where the child does not "stand out” from his classmates, based on these tests, then it is consistent with the decision that he has been appropriately placed.
I have examined the plaintiff’s academic progress as indicated by his tests and his teachers’ observations and find that there was no reasonable basis for any teacher to recommend that he be retested. The achievement tests showed such dismal results that it was reasonable for plaintiff’s teachers to infer that his I.Q. was no better than had been originally indicated. In 1967 his achievement tests in reading and math*396ematics indicated that plaintiff read at a level below the third grade and that he had the mathematical understanding of a fourth grade level. Had he been an average student in 1967, the plaintiff’s reading and mathematics levels would have been at tenth or eleventh grade. Of all the achievement tests the plaintiff had been given since 1960, his 1967 scores were the highest he had ever obtained.
Mrs. Sally Stewart taught the plaintiff for two years, starting in 1964, in the subject area of reading, arithmetic, social studies and speech. It was her opinion that the plaintiff was working to his full potential. In her judgment he could not have functioned in a regular class of eighth graders for which a normal child of his chronological age would have been suited. She rested her judgment not only on his scores on standardized achievement tests, but upon her daily observations of his work in class and his performance on daily and weekly tests.
Although she testified on cross-examination that she recommended that Danny’s I.Q. be rechecked, she made this statement in the context of a generality. At this point there may have been confusion in her mind with regard to the post-1968 board of education policy of retesting CRMD students every two years. This would be consistent with her later testimony elicited on redirect examination by the board of education.
"Q Did Danny ever overcome anything in your class?
"A No, sir.
"Q Did you ever feel while Danny was in your class that he should be re-evaluated?
"A No, sir.
"Q In your opinion did he reach his level?
"A Yes, sir. * * *
"Q And did * * * [Danny] at any time in your opinion warrant being retested for his IQ?
"A No, sir.”
Mrs. Stewart testified that plaintiff’s performance on achievement tests was consistent with a determination that he was retarded. Significantly, she testified that certain other students in the same class as plaintiff had improved their school work in the CRMD class. Upon the basis of such improvement they had been placed in classes for children of average intelligence. This indicates that some students overcame the stigma of being labeled retarded.
*397Mrs. Vicari taught the plaintiff in Junior High School 93 between the years 1964 to 1967. She indicated that when a child in her class was working up to potential or had significantly improved during the year, she would request a further re-evaluation of his I.Q. However, she did not believe that the plaintiff could have functioned in a regular class.
Accordingly, the sole conclusion which could be drawn from the evidence at the trial was that plaintiffs intelligence was in fact, periodically "re-evaluated”. This "re-evaluation” referred to the child’s entire school record, which consisted of teachers’ observations of him in class over several years and the results of standardized achievement tests.
The issue of whether the board of education had a duty to periodically retest plaintiff’s I.Q. should not have been submitted to the jury. As I interpret the Court of Appeals’ recent decision in James v Board of Educ. of City of N. Y. (42 NY2d 357, 367), a jury should not be permitted to evaluate the merits of a plaintiffs disagreement with the educational assumptions relied upon by a board of education. Questions regarding a board’s exercise of judgment and discretion, and its allocation of available resources, are inappropriate for resolution in the courts (id., p 368). Under the guise of enforcing a vague educational public policy, a jury should not be permitted to assume the exercise of an educational policy that is vested by constitution and by statute in school administrative agencies (id., p 367).
On the evidence presented by the plaintiff, I cannot justify any recovery on his behalf. The record discloses no impropriety in Danny’s initial placement in a CRMD class and the evidence, absent Dr. Gottsegen’s incredible testimony, weighs conclusively in favor of the board of education’s position that "retesting” was neither recommended nor appropriate in Danny’s case. Accordingly, the judgment should be reversed and the complaint against the board of education dismissed.