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Decision No. 13,773

Appeal of DAVID C. WOODWARD from action of the Board of Education of the City School District of the City of Peekskill regarding school reorganization.

Decision No. 13,773

(June 5, 1997)

Keane & Beane, P.C., attorneys for respondent, Joseph A. DeTraglia, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Peekskill ("respondent") to reorganize its schools. The appeal must be dismissed.

Petitioner is a resident of respondent's district. In 1991, respondent began to examine its options to reorganize the elementary schools in the district due to increasing school enrollment, lack of classroom space, variations in class size and ethnic imbalance. In March 1994, respondent appointed a committee to review previous proposals, revise and update data, and make recommendations to the board. The committee specifically addressed elementary overcrowding, class size and excess space availability in the secondary schools. In July 1994, respondent held a workshop to examine these issues and review the findings of the committee. Respondent appointed a second committee consisting of school board members, district administrators, parents and teachers. The committee was charged with reviewing all data and options and making a recommendation to respondent. As a result, the committee made a recommendation to reorganize the district's schools. On July 6, 1995 respondent adopted that part of the committee's recommendation to reconfigure the district's elementary schools and to close Oakside Elementary School. Petitioner initiated this appeal by service of a petition on April 23, 1996. Petitioner's request for interim relief pending a determination on the merits was denied on May 15, 1996.

Petitioner alleges that respondent's adoption of a reorganization plan for the elementary schools violated the provisions of 8 NYCRR 100.11 relating to shared decisionmaking because, he contends, respondent did not follow its shared decisionmaking plan when reviewing the school reorganization issue. Respondent asserts that the appeal is untimely, that petitioner lacks standing and that the petition fails to contain a clear and concise statement of petitioner's claim. Respondent also objects to new material contained in petitioner's reply.

Before reaching the merits, I will address respondent's procedural arguments. Respondent maintains that this matter must be dismissed because petitioner lacks standing to challenge adoption of the school reorganization plan. An individual may not maintain an appeal pursuant to Education Law '310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Craft, 36 Ed Dept Rep 314; Appeal of Garwood, 35 id. 297). Petitioner is a taxpayer and resident of the district. However, there is no claim in the petition that petitioner has been individually affected by respondent's determination to reconfigure its elementary schools and close Oakside school. Petitioner's status as a resident and taxpayer of the district is not sufficient to confer standing to seek judicial review of the actions of the board of education (Appeal of DePasquale, 30 Ed Dept Rep 361). In the petition, petitioner asserts only that the parents of pupils currently attending Oakside school did not have an opportunity to participate in the decision to reorganize the elementary schools. However, petitioner is not the parent of a pupil who has been reassigned and otherwise lacks standing to assert the rights of others (Appeal of Szymkowiak, 36 Ed Dept Rep 204). Accordingly, the appeal must be dismissed because petitioner lacks standing.

Respondent also contends that the appeal is untimely. The record indicates that the district reorganization plan at issue in this appeal was adopted on July 6, 1995 and petitioner's appeal was commenced on April 23, 1996, more than nine months later. An appeal to the Commissioner of Education must be instituted within 30 days from the making of the decision or performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of McCall, 35 Ed Dept Rep 38). Although petitioner admits that respondent voted to adopt the plan on July 6, 1995, he argues that the plan was incomplete and that changes were subsequently made, thereby extending his time to appeal. I find this argument unpersuasive. The fact that adjustments were made subsequent to the plan's adoption on July 6, 1995 does not extend petitioner's time to appeal respondent's threshold determination to implement that plan. Because the petitioner was not served within 30 days of respondent's July 6, 1995 determination to adopt the reorganization plan at issue in this appeal, I find that the appeal is untimely.

Finally, respondent contends that petitioner's reply improperly contains new claims, as well as additional evidence that was available at the time the petition was filed. Respondent correctly asserts that new material asserted in a reply may not be considered as part of the record. The purpose of a reply is to respond to new materials or affirmative defenses set forth in the answer (8 NYCRR '275.14), not to buttress allegations in the petition or to belatedly add assertions which should have been included in the petition (Appeal of Crawmer, 35 Ed Dept Rep 206; Appeal of Aarseth, 33 id. 522; Application of Verity, 31 id. 485). Petitioner may not augment the scope of the petition through his reply (Appeal of the Coalition for the Empowerment of People of African Ancestry, Decision No. 13767, dated May 14, 1997). Accordingly, I will not consider the new claims or additional evidence as part of the record before me.

The appeal must also be dismissed on the merits. 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 (Matter of Older, et al. v. Board of Education, 27 NY2d 333, 318 NYS2d 129; Appeal of Shaw, et al., 34 Ed Dept Rep 521; Appeals of Parrish, et al., 32 id. 261; Appeal of Cullen, 32 id. 179). A board of education has broad discretion in its assignment of pupils to schools (Appeal of Parrish, supra; Matter of Addabbo v. Donovan, 22 AD2d 383, 256 NYS2d 178, aff'd 16 NY2d 619, 261 NYS2d 68, cert den 382 US 905). Accordingly, a board's decision to reorganize its schools will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, supra; Appeal of Parrish, supra). Moreover, petitioner bears 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). Upon review of the record before me, I find petitioner has established no basis on which to overturn respondent's reorganization plan.

The sole argument in support of petitioner's challenge to the reorganization plan is that respondent failed to use its shared decisionmaking procedure adopted pursuant to 8 NYCRR 100.11 in developing the plan. Petitioner sets forth no other grounds for his challenge. The record before me indicates that respondent adopted a plan for site based planning and shared decisionmaking in accordance with the requirements of 8 NYCRR 100.11. That plan was reviewed and approved by the State Education Department (SED) on February 11, 1994. The biennial review of the district's plan was conducted and submitted to SED on May 6, 1996. Respondent's shared decisionmaking plan does not include school reorganization as an item for shared decisionmaking, and petitioner offers no authority which would require such to be included.

Moreover, respondent's plan specifically provides "any issue may be considered appropriate for shared decisionmaking as long as it does not negate law, Board policy, or a legally executed contract...". As noted above, Education Law '1709 and decisional law confers specific authority on respondent board of education to determine the assignment of pupils to its schools. Thus, pursuant to respondent's shared decisionmaking plan, the determination to reassign pupils to schools pursuant to a district reorganization plan need not be the subject of the shared decisionmaking process, and such determination could properly be made solely by respondent.

Based upon this record, I find that respondent acted within its legal authority in developing and adopting a school reorganization plan. I further note that, while not required to do so, respondent did, in fact, create two committees made up of parents, teachers and administrators to gather data, study options and make recommendations to respondent. Thus, respondent obtained significant input from relevant constituencies prior to making its decision.

I have examined the parties' remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

END OF FILE