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Decision No. 12,830

Appeal of CHRISTOPHER AND ROSLYN JOANNIDES, on behalf of their daughter, Jennifer, from action of the Board of Education of the Levittown Union Free School District regarding attendance zones.

Decision No. 12,830

(November 4, 1992)

Ingerman, Smith, Greenberg, Gross, Richmond, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Mary Anne Sadowski, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's denial of their request for their daughter, Jennifer, to attend the district's Salk Middle School ("Salk") rather than its Wisdom Middle School ("Wisdom"). The appeal must be sustained in part.

Respondent has "attendance zones" for determining enrollment of students in each of the schools in the district. The school for which the petitioners' residence is zoned is Wisdom. Petitioners wrote to the principal of their daughter's then elementary school on February 22, 1992, requesting that their daughter be allowed to attend Salk the following school year. They received no response, and on May 11, 1992, they met with Dr. Paul Lochner, Assistant Superintendent for Personnel, who denied the request. On May 18, 1992 petitioners presented each board of education member with a letter asking for their assistance in this matter.

Respondent's regulation permits interschool transfers for students with emotional, social or educational problems. The regulation requires the student's parent or guardian to make a transfer request to the home school principal in writing. The principal must then request that appropriate school personnel make a full report to him within a two-week period. The principal coordinates the gathering of the data. If the transfer is to be denied, the principal must notify the District Coordinator of Guidance. A final appeal of this decision may be made to the superintendent.

On June 3, 1992, petitioner Christopher Joannides met with Dr. Herman Sirois, the superintendent, who denied their request. At the "public be heard" portion of the June 3, 1992 board meeting, petitioner Christopher Joannides stated that petitioners were requesting the change because students at Salk obtain better final grades than students at Wisdom. Petitioners then requested that board trustee John Garvey obtain the board's approval for their daughter to attend Salk.

At a June 24, 1992 special meeting of the board, John Garvey made a motion to authorize petitioners' daughter to attend Salk in lieu of Wisdom. The item had not been placed on the written meeting agenda. The resolution passed by 4 to 3. One board member took exception that the action was taken without prior board notification, in violation of board policy. Board policy No. 9342.1 states:

Special meetings of the Board of Education may be called at the request of the President or any two (2) members of the Board on forty-eight (48) hours written notice and shall be held at such times as may be specified in the respective notices of such meetings. Each notice of a special meeting shall distinctly state the business to be transacted thereat and no business other than that so stated shall be considered at a special meeting unless such item(s) is of an emergency nature and a majority of the whole Board who are present and voting agree (minimum four [4]) in the affirmative to include such item(s) for action.

At the next scheduled board meeting on July 7, 1992 a motion to invalidate the action taken by the board at its June 24, 1992 meeting, regarding petitioners' attendance, passed 5-2. This appeal ensued.

Petitioners contend that transfers have been allowed arbitrarily and selectively for students whose parents are the town supervisor, PTA officers and school district employees, and that such transfers continue to be allowed. They seek to have their daughter attend Salk because they assert that Salk guidance personnel allow more flexibility in scheduling, that the principal and assistant principal understand the need for immersing females in mathematics and science and addressing female students' career concerns, that extracurricular activities are greater than at Wisdom, and that Salk has more language options. Petitioners assert that the board did have notice that this issue would be addressed at the June 24, 1992 special meeting, because they contend the superintendent placed it on the agenda. Petitioners seek reinstatement of the June 24, 1992 resolution, to allow their daughter to attend Salk.

Respondent asserts that decisions concerning questions of pupil attendance at a particular school within the district are within the sole discretion of the board pursuant to Education Law '1709(1). The school district further contends that the regulation that addresses interdistrict transfers provides for transfer for students with emotional, social or educational problems, and petitioners requested the transfer for their daughter for reasons other than those authorized by the regulation. Finally, respondent contends that its rescission of the improperly adopted resolution was consistent with its policy prohibiting board action on non-emergency items which have not been placed on the agenda forty-eight hours prior to the meeting.

First, I find the rescission to be consistent with respondent's policy, which clearly indicates that non-emergency items be placed on the written agenda. In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Sarah Garnett, 32 Ed Dept Rep 91; Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). Petitioners assert that a board member informed the superintendent that he would be placing the issue of their daughter's transfer on the agenda for the June 24, 1992 meeting. The superintendent refutes that claim. Petitioners have not met their burden of proof and I find that the item was not placed on the agenda forty-eight hours prior to the meeting. Therefore, petitioners' request to invalidate the rescission of the June 24, 1992 vote is dismissed.

Regarding petitioners' request that I mandate their daughter's transfer, Education Law '1709(33) authorizes a board of education to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Appeal of Cullen, 32 Ed Dept Rep __, Decision #12798, dated September 8, 1992; Matter of Older, et al. v. Board of Ed., 27 NY2d 333). Moreover, in the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert. den 382 US 905). Accordingly, decisions with regard to attendance zones will be overturned only when there is a clear showing that the board's action was arbitrary, capricious or contrary to sound educational policy (Appeal of Cullen, supra; Appeal of Goldup, 30 Ed Dept Rep 477).

The allegations set forth in the petition will be deemed to be true statements that have been admitted by respondent if he fails to deny them (8 NYCRR '275.11; Appeal of Rowe, 31 Ed Dept Rep 280; Appeal of Walker, 31 id. 32). Petitioners assert that they made an initial request to the principal of their daughter's home school on February 22, 1992. Respondent fails to deny that such letter was received by the principal. Therefore, I find that petitioner initiated the transfer request in compliance with the regulation. The record does not reflect, however, that respondent followed the regulation before the June 24, 1992 granting of the transfer, or of the subsequent rescission and denial. Since the regulation clearly states that "these are the procedures to be utilized in all situations", respondent has violated its regulations. Therefore, I find that its determination, first to grant the transfer and then to deny the transfer, without complying with its regulation, was arbitrary and capricious. Petitioners' claim must be sustained to the extent that respondent must comply with its regulation prior to granting or denying such a request.

Finally, petitioners' claim that respondent arbitrarily decides transfers depending upon the resident making the request and not upon the merits of the request, is troubling. A policy, once adopted, must be consistently applied (Appeal of Brenner, 28 Ed Dept Rep 402). Petitioners makes allegations regarding the attendance of certain students outside their "zone" and supply affidavits and exhibits indicating that some students either have attended or are presently attending outside their "zones". Instead of squarely addressing the issue, respondent merely says that the students mentioned by petitioner never requested a transfer, without responding to the obvious question of whether they are attending outside their zone. Although I cannot ascertain from the record whether students are in fact attending outside their zones, petitioners have indeed raised a question as to the consistency with which interdistrict transfers are made. If these assertions are true, unless the reasons for such attendance are documented as consistent with board policies and procedures, it is arbitrary to deny petitioners' request for their daughter to attend a school in a different zone.

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent commence review of petitioners' February 22, 1992 request for an interdistrict transfer immediately and carefully comply with all applicable district policies and regulations in rendering a determination.

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