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Decision No. 13,906

Appeal of DANIEL F. JOHNSON, on behalf of his daughters, HOPE and LAURA JOHNSON, from action of the Board of Education of the City School District of the City of Oneida regarding attendance zones.

Appeal of JUDITH ZESKY, on behalf of her daughter, KIMBERLY ZESKY, from action of the Board of Education of the City School District of the City of Oneida regarding attendance zones.

Appeal of DENISE LAUBE, on behalf of her children, DREW and ALEXANDRA LAUBE, from action of the Board of Education of the City School District of the City of Oneida regarding attendance zones.

Appeal of ARLENE HORNYAK, on behalf of her daughters, MEGAN and SARAH HORNYAK, from action of the Board of Education of the City School District of the City of Oneida regarding attendance zones.

Decision No. 13,906

April 1, 1998

Ferrara, Fiorenza, Larrison, Barrett & Reitz, P.C., attorneys for respondent, Susan T. Johns, Esq., of counsel

MILLS, Commissioner.--In four separate appeals, petitioners challenge the decision of the Board of Education of the Oneida City School District ("respondent") to realign its attendance zones and its refusal to allow petitioners' children to attend schools outside their attendance zone. Because the appeals are based on the same facts and seek similar relief, they are consolidated for decision. The appeals must be dismissed.

Petitioners' children are students in respondent's elementary schools. On May 14, 1996, respondent ratified a redistricting policy that realigned the attendance zones for its elementary schools. Respondent states that its administrators recommended this redistricting, following a review of enrollments during the annual budget process, in order to make the average class size throughout the district more consistent and to alleviate overcrowding at respondent's Oneida Castle Elementary School ("Oneida Castle"). As a result of the realignment, petitioners' children were reassigned from Oneida Castle and the Durhamville Elementary School ("Durhamville") to respondent's other elementary schools.

Before this redistricting, in prior school years, respondent had allowed students, in certain circumstances, (i.e., childcare arrangements located in a different attendance zone, a mid-year move, or a medical emergency) to attend elementary schools outside their attendance zone by seeking special permission from respondent. However, at its June 17, 1996 board meeting, respondent announced it would no longer grant special permission for students to attend Oneida Castle and Durhamville. After this meeting, petitioners appealed to respondent and requested special permission for their children to attend those two schools. Respondent denied their requests and these appeals ensued. I denied interim relief for petitioners Zesky, Laube and Hornyak on August 23, 1996 and for petitioner Johnson on September 16, 1996.

Petitioners contend that respondent is discriminating against their children, that the realignment of the attendance zones was arbitrary and capricious, that respondent deliberately misled the community before the redistricting was announced, and that respondent deliberately excluded community involvement and input in redistricting. Two petitioners also allege that the school to which their children are now assigned is inferior to the school they previously attended. Petitioners dispute the validity of respondent's policy to continue granting special permission for students to, under certain circumstances, enter its other four elementary schools and the effect of this policy on classroom enrollments. Petitioners request that their children be given special permission to attend the same elementary schools that they attended before the May 1996 redistricting plan took effect.

Respondent contends that its decision to realign attendance zones was neither arbitrary, capricious, nor contrary to sound educational policy. Respondent maintains that it has the sole responsibility to determine attendance zones and that it followed its usual procedure of administrative review in reaching its decision. Respondent further asserts that it strives to provide a uniformly excellent education program at all of its elementary schools and the benefits of redistricting outweigh petitioners' concerns. Respondent also contends that the appeals should be dismissed as untimely. Finally, respondent contends that, even under its special permission policy, petitioners' children would not be eligible for the relief requested.

The appeals must be dismissed. The appeals were commenced by petitioners Hornyak and Zesky on August 13, 1996, petitioner Laube on August 15, 1996 and petitioner Johnson on September 4, 1996. In each case, petitioners commenced their appeals more than thirty days after respondent's May 14, 1996 redistricting decision and more than 30 days after the June 17, 1996 board meeting where respondent announced that it would no longer grant special permission for students to attend Oneida Castle and Durhamville. Petitioners apparently believe that their time to commence an appeal did not begin until they received responses to their letters, written after the June 17 meeting, appealing respondent's decision. However, since respondent made it clear on June 17 that it would no longer grant special permission for any student to attend Oneida Castle or Durhamville, petitioners' letters are in the nature of requests for reconsideration. Numerous Commissioner's decisions have previously held that a request for reconsideration does not extend the time in which to commence an appeal (Appeal of Ytuarte, 36 Ed Dept Rep 238; Appeal of Goodman, 35 id. 93; Appeal of Regan, 34 id. 72; Appeal of Yip, 25 id 296; Appeal of Ritz, 25 id. 240). Therefore, the appeals are dismissed as untimely.

Even if the appeals were not untimely, they would fail on the merits. Pursuant to Education Law "1709(3) and (33), a board of education has the authority and responsibility to manage and administer the affairs of a 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 Damadeo, et al., 36 Ed Dept Rep 201; Appeal of Barbara D. and James D., 34 id. 118; Appeal of Parrish, 32 id. 261). Education Law "2503(4)(d) authorizes respondent to "determine the school where each pupil shall attend." 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). I find that petitioners have failed to meet that burden of proof.

In this case, respondent's reason for making adjustments to attendance zones, to alleviate the unequal enrollment pattern within the district's elementary schools, provides a rational basis for respondent's decision. The enrollment numbers submitted by petitioners support respondent's position that there was a great variance in classroom enrollments within the district. Petitioners argue that they should have had input in the redistricting decisions, but offer no legal authority for that claim.

Furthermore, I find respondent's decision to discontinue granting special permission for students to attend Oneida Castle and Durhamville to be rational in light of its goals to equalize classroom size across the district. As respondent pointed out, to continue to grant special permission for attendance at these two schools would have defeated the very purpose of the redistricting.

Petitioner Laube contends that her claim for special permission is distinct from the other petitioners in that she has established babysitting arrangements within the Oneida Castle attendance zone and therefore asserts that her children should be allowed to remain at that school. This situation would have apparently provided sufficient grounds under respondent's former policy for granting this request. However, respondent made clear at its June 17, 1996 meeting that it would no longer grant special permission for any student to attend Oneida Castle and Durhamville for any reason during the 1996-97 school year. She has not provided any evidence to show that respondent has made exceptions to this new policy because of baby sitting arrangements, or any other basis that was formerly available. Therefore, I find that petitioner Laube's complaint is essentially the same as the other petitioners, and must be dismissed.

In sum, while I am sympathetic to petitioners' concerns, there is no legal basis to grant the relief they seek (Appeal of Kershaw, 37 Ed Dept Rep 186; Appeal of Barbara D. and James D., supra). Based on the record before me, I conclude that respondent's decision in this matter was not arbitrary, capricious or contrary to sound educational policy.

THE APPEALS ARE DISMISSED.

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