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Decision No. 12,862

Appeal of GLEN MULHOLLAND, on behalf of his son, Ryan, from action of the Board of Education of the Levittown Union Free School District regarding attendance zones.

Decision No. 12,862

(December 28, 1992)

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

SOBOL, Commissioner.--Petitioner appeals from respondent's refusal to allow his son Ryan to attend the Lee Road Elementary School ("Lee"). The appeal must dismissed.

In August 1990, petitioner registered Ryan in kindergarten at Lee, giving as his residence the child's grandparents' address. In the spring of the 1991-92 school year, following an investigation, respondent Levittown Board of Education (the "Board") discovered that petitioner and his son actually resided at a different address within the district. That address, however, was in the Gardiner School attendance zone, not the Lee zone.

On June 24, 1992, petitioner was informed that, commencing with the 1992-93 school year, petitioner's son would be required to attend the Gardiner School ("Gardiner"). Although petitioner admitted that he resided in the Gardiner attendance zone, he sought to have Ryan continue at Lee for fear that a transfer would adversely affect his academic performance.

At a special meeting of the board of education held on June 24, 1992, a member of the board moved to authorize Ryan to attend Lee. Without placing the item on the agenda, the resolution passed 4 to 3. However, one of the board members took exception that the action had been taken without proper notification, in violation of board policy No. 9342.1:

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 (emphasis supplied).

At the next scheduled board meeting on July 7, 1992, a motion to rescind the board's prior resolution allowing Ryan to attend Lee passed, 5-2. This appeal ensued.

Petitioner contends that respondent has no policy precluding student transfers and asserts that his son's academic performance may be adversely affected if moved to Gardiner. He seeks an order directing respondent to allow his son to continue at Lee.

Respondent asserts that school building assignments are within the sole discretion of the board pursuant to Education Law '1709(1). Respondent further contends that it properly rescinded its prior resolution because it had been passed in violation of board policy.

First, I find respondent's rescission of its earlier resolution consistent with respondent's policy that non-emergency items must be placed on the written agenda forty-eight hours in advance of a special meeting. It is undisputed that this item was never placed on the written agenda, and was voted upon without any advance notice. The board thus acted properly in rescinding the resolution.

Regarding petitioner's request that I, nonetheless, order his son's transfer, Education Law '1709(33) authorizes a board of education to manage and administer the affairs of its 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, pupil assignments will be overturned only when there is a clear showing that the board acted arbitrarily, capriciously or contrary to sound educational policy (Appeal of Cullen, supra; Appeal of Goldup, 30 Ed Dept Rep 477).

Although not part of the record, I note that respondent has a regulation regarding intradistrict transfers. Respondent's regulation specifically permits interschool transfers for students with emotional, social or educational problems. In such cases, the student's parent or guardian is required to make a written transfer request to the home school principal. Upon review of relevant materials, the final determination is then made by the principal and a denial may be appealed to the superintendent. Petitioner seeks to have his son transferred for fear that his grades will drop. Petitioner did not follow the regulatory procedures in seeking a transfer, and the reasons he enumerated in requesting the transfer are not, according to board regulations, reasons to grant a transfer. Because Education Law '1709 grants a school board discretion in designating a student's school of attendance, and because petitioner's reasons for requesting the transfer are not reasons in which transfers are authorized by respondent's regulation, I find respondent's actions denying the transfer rational. The appeal must be dismissed.

THE APPEAL IS DISMISSED.

END OF FILE