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Decision No. 13,400

Appeal of PAMELA SHAW, CAROL DOLAN, KAREN SISCO, ROSEMARIE TVEIT, MAXINE MEYER and MARTIN HARNICK from action of the Board of Education of the Enlarged City School District of the City of Middletown and Charles Skiptunas, Superintendent, relating to attendance zones.

Decision No. 13,400

(April 10, 1995)

Anderson, Banks, Curran & Donoghue, Esqs., attorneys for respondent, James P. Drohan, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the adoption of a school district reorganization plan by the Board of Education of the Enlarged City School District of the City of Middletown ("respondent"). The appeal must be dismissed.

Petitioners are residents of respondent's district. Respondent moved an attendance zone from the Academy Avenue School to the Mechanicstown School to ease overcrowding. As a result of that change, approximately 48 students were transferred to Mechanicstown. This appeal ensued.

Petitioners allege that respondent moved the attendance zone for racial and socioeconomic reasons. They allege that most of the students transferred were from a middle to upper class neighborhood and that the students were deliberately transferred from the Academy Avenue School because it has a high poverty level, a number of free and reduced lunch program participants and some minority and limited English proficient students. Respondent contends that the transfer was to relieve overcrowding at the Academy Avenue School and was done on a rational and non-discriminatory basis.

Before reaching the merits, I will address a procedural issue. Respondent contends that the reply sets forth new issues and material which were not contained in the petition, and which do not respond to allegations in respondent's answer. My review of the record supports respondent's contention. The purpose of a reply is to respond to new material or affirmative defenses set forth in the answer (8 NYCRR 275.14). A reply is not meant to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Aarseth, 33 Ed Dept Rep 522; Application of Verity, 31 id. 485; Appeal of Pronin, 27 id. 203). Therefore, I will not consider the material belatedly added in petitioners' reply.

Turning to the merits, a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Appeal of Burnett, et al., 33 Ed Dept Rep 607; Appeal of Parrish, et al., 32 id. 261; Matter of Older, et al. v. Board of Education, 27 NY2d 333). In such cases, a board's discretion is broad (Appeal of Parrish, supra; Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert den 382 US 905). Accordingly, a board's decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Matter of Older, supra; Appeal of Parrish, supra). Moreover, petitioners bear the burden of demonstrating that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of Sherwood, et al., 33 Ed Dept Rep 410; Appeal of McNerney, et al., 28 id. 250; Appeal of Malang, 26 id. 134). I find that petitioners failed to meet their burden of proof in this case.

The record shows that in 1991, respondent began evaluating its options to address overcrowding when it issued a document entitled "Comprehensive Long-Range Facilities Plan and Educational Specifications." That document stated that expansion of the Mechanicstown School would alleviate overcrowding in the district. Prior to adopting the proposal at issue, respondent thoroughly analyzed the needs of the district. Petitioners contend that the overcrowding issues could have been addressed by grade transfers rather than the reorganization of attendance zones. However, respondent notes that a grade transfer would result in Academy Avenue students attending three separate schools between kindergarten and sixth grade. Accordingly, respondent rejected that suggestion as logistically unsound and not in the best educational interest of the students.

Respondent notes that while it is cognizant of the issue of perceived racial isolation raised by petitioners, the net effect of the reorganization is a decrease in the majority population at Academy Avenue of only 1.7%. Respondent also contends that its plan for future magnet school development will facilitate the voluntary integration of students on a racially equitable basis. Thus, while the allegations raised by petitioners are troubling, there is simply no evidence in the record that respondent transferred the attendance zone for impermissible reasons. Moreover, respondent appears cognizant of the merits of racial balance in the schools, and is working toward that end in its plan for magnet school development.

THE APPEAL IS DISMISSED.

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