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Decision No. 14,273

Appeal of BRIAN DALEY, on behalf of KRISTEN DALEY, from action of the Board of Education of the North Colonie Central School District concerning school assignment.

Decision No. 14,273

(December 21, 1999)

Lefkowitz & Keefe, P.C., attorneys for petitioner, Thomas K. Keefe, Esq., of counsel

David W. Morris, Esq., attorney for respondent

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the North Colonie Central School District ("respondent") denying his daughter admission to the Latham Ridge Elementary School ("Latham Ridge"). The appeal must be dismissed.

Petitioner resides with his wife and two daughters at 8 Colonie Avenue, Latham, within the North Colonie Central School District. Prior to 1983, petitioner’s house was located within the attendance zone for the Latham Ridge Elementary School, located a short distance from petitioner’s house. On March 24, 1983, respondent passed a resolution transferring a portion of the Latham Ridge attendance zone to the Forts Ferry Elementary School ("Forts Ferry"), located 2.8 miles from petitioner’s residence, effective for the 1983-84 school year. Under the new configuration, petitioner’s house was located within the Forts Ferry attendance zone. The resolution effectuating this change provides:

Transfer the area north of Route 7; east of Route 9, south of a line extending from Route 9 to and along Latham Ridge Road, and west of Colonie and Hudson Avenues, including the students residing on Colonie and Hudson Avenues and the south side of Latham Ridge Road, to the Forts Ferry School, beginning with students enrolled in grades K-4 in 1983-84.

As is evident from the language of the resolution, under the new configuration, Colonie Avenue constitutes a portion of the boundary line for the Forts Ferry attendance zone.

Apparently, the district allows parents to seek permission to have a child attend a school outside of the attendance zone otherwise designated for their residence. Each year the superintendent decides any such applications based upon the availability of space within the requested school. When petitioner’s older daughter started kindergarten a few years ago, petitioner sought and was granted permission for her to attend Latham Ridge. Since then, petitioner has been granted permission each year for this child to attend Latham Ridge.

Petitioner’s younger daughter, Kristen, is eligible to attend kindergarten for the 1999-00 school year. According to respondent, on August 30, 1999, petitioner asked respondent to alter its attendance boundaries so that Kristen could attend Latham Ridge. Respondent unanimously denied petitioner’s request. This appeal ensued. Petitioner’s request for interim relief was denied on October 1, 1999.

Even though petitioner has sought permission each year to have his older daughter attend Latham Ridge, he contends that his residence is zoned for Latham Ridge, arguing that the 1983 resolution transferred only those families residing on the west side of Colonie Avenue to the Forts Ferry attendance zone. Petitioner resides on the east side of the street. Petitioner also contends that respondent failed, among other things, to perform an environmental impact study before altering the attendance zones in 1983.

Respondent contends that the 1983 resolution transferred all residences on Colonie Avenue to the Forts Ferry attendance zone and that since then, the district has, in fact, assigned students from both sides of Colonie Avenue to Forts Ferry. In addition, respondent explains that it properly denied petitioner’s request to have Kristen attend Latham Ridge because the kindergarten classes there are full.

Preliminarily, I note that to the extent that petitioner attempts to challenge respondent’s decision in 1983 to alter the attendance zone for Latham Ridge, the appeal is clearly time barred. Accordingly, I will not address any claims that challenge the propriety of the 1983 resolution.

Petitioner’s interpretation of the 1983 resolution is untenable. It is clear that the resolution transfers all residences on Colonie Avenue to the Forts Ferry attendance zone. In delineating the new boundary, the resolution specifies that "…students residing on Colonie and Hudson Avenues and the south side of Latham Ridge Road…" would be transferred to the Forts Ferry attendance zone. There is nothing in the resolution to suggest that respondent intended to transfer only the west side of Colonie Avenue to Forts Ferry. Had respondent intended to transfer only one side of Colonie Avenue to Forts Ferry, it could have easily specified so, as it did with Latham Ridge Road.

Moreover, the record reflects that respondent has consistently assigned students from both sides of Colonie Avenue to Forts Ferry since 1983. Indeed, it is also clear that petitioner understood that his residence was zoned for Forts Ferry because he sought permission each year to have his other daughter attend Latham Ridge.

Nor has petitioner demonstrated that respondent’s refusal to alter the attendance zone boundary is arbitrary or capricious. Education Law "1709(33) authorizes a board of education 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; Appeal of Kershaw, 37 Ed Dept Rep 186, Decision No. 13,837; Appeal of Damadeo, et al., 36 Ed Dept Rep 201, Decision No. 13,701). A board of education has broad discretion in its assignment of pupils to schools (Appeal of Kershaw, supra). Petitioner bears the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (id.). Respondent explains that it denied petitioner’s request because the kindergarten classes at Latham Ridge are full, and that in fact, two children who are zoned to attend Latham Ridge are currently being bussed to Forts Ferry. Under these circumstances, I do not find respondent’s refusal to accommodate petitioner to be arbitrary or capricious.

THE APPEAL IS DISMISSED.

END OF FILE