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Decision No. 14,587

Appeal of THE BOARD OF EDUCATION OF THE EASTPORT/SOUTH MANOR CENTRAL HIGH SCHOOL DISTRICT, THE BOARD OF EDUCATION OF THE SOUTH MANOR UNION FREE SCHOOL DISTRICT and THE BOARD OF EDUCATION OF THE EASTPORT UNION FREE SCHOOL DISTRICT from action of the Board of Education of the Westhampton Beach Union Free School District, the Center Moriches Union Free School District, the Remsenburg-Speonk Union Free School District and the East Moriches Union Free School District regarding a limitation on nonresident students.

Appeal of ROBERT E. MILLS, on behalf of ADAM E. MILLS, from action of the Board of Education of the Westhampton Beach Union Free School District regarding a limitation on nonresident students.

Decision No. 14,587

(June 19, 2001)

Guercio & Guercio, attorneys for petitioners, Raymond G. Keenan, Esq., of counsel

Kevin A. Seaman, Esq., attorney for respondent Westhampton Beach UFSD

Dranitzke, Lechtrecker, Trabold & Johnson, attorneys for respondent Center Moriches UFSD, Harold G. Trabold, Esq., of counsel

Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, attorneys for respondents Remsenburg-Speonk UFSD and East Moriches UFSD, Gair G. Betts, Esq. and Frank Isler, Esq.

MILLS, Commissioner.--Petitioners appeal from the decision of respondent Board of Education of the Westhampton Beach Union Free School District ("Westhampton Beach") to limit the number of incoming 10th grade students that it will accept from the Eastport/South Manor Central High School District, commencing with the 2001-2002 school year. Because the appeals are based on the same facts, they are consolidated for decision. The appeals must be dismissed.

The Eastport/South Manor Central High School District ("CHSD") is a central high school district established pursuant to Article 39 of the Education Law on July 1, 1999, which succeeded to the obligation of its component districts, the Eastport Union Free School District ("Eastport") and the South Manor Union Free School District ("South Manor"), to educate students who have completed sixth grade. At present, the CHSD does not maintain a school building of its own, but utilizes space in Eastport, at the Eastport School for grades 7-12, and in South Manor, at the Dayton Avenue School for grades 7-9. All CHSD 7-12 grade students who reside within Eastport (and some 10-12 grade students who reside within South Manor) are educated at the Eastport School. The CHSD, as a "sending school district" [see 8 NYCRR "174.4(a)(1)], also educates some of its 10-12 grade students who reside within South Manor, on a tuition basis at "receiving school districts" [see 8 NYCRR "174.4(a)(2)] Westhampton Beach and respondent Center Moriches Union Free School District ("Center Moriches"). In addition, respondents Remsenburg-Speonk Union Free School District ("Remsenburg-Speonk") and East Moriches Union Free School District ("East Moriches") are each "sending school districts," whose students may attend either the CHSD, Westhampton Beach or Center Moriches. CHSD voters have approved construction of a new high school for the CHSD, which is expected to be completed in time for the 2003-2004 school year.

By letter dated December 21, 2000, Elva M. Adams, the president of the Westhampton Beach Board of Education, informed Bruce Kronman, the CHSD board president, that on December 18, 2000, a resolution was adopted by the Westhampton Beach Board of Education to limit the number of entering 10th grade students from the CHSD that it would accept at Westhampton Beach to 40 students, commencing with the 2001-2002 school year.

Petitioners CHSD, Eastport and South Manor commenced their appeal by service of a copy of the petition on each of the respondents on January 3, 2001. Petitioners contend that Center Moriches has been added as a party to this appeal because a Commissioner's decision may affect its rights as a receiving district for students sent from the CHSD, and that Remsenburg-Speonk and East Moriches were added as parties because their rights as sending districts to the CHSD may be affected. By letter dated January 26, 2001, my Office of Counsel informed petitioners that their request for a stay order pending my final determination of the appeal was denied.

Petitioner Robert E. Mills commenced his appeal by service of a copy of his petition on the Westhampton Beach District Clerk on February 26, 2001. By letter dated March 13, 2001, my Office of Counsel informed petitioner that his request for a stay order pending my final determination of the appeal was denied.

Petitioners CHSD, Eastport and South Manor allege that Westhampton Beach has failed to establish "valid and sufficient reasons" pursuant to Education Law "2045(1) to justify its action to limit the number of incoming 10th grade students from the CHSD. They request that I issue an order revoking Westhampton Beach's decision to limit the number of incoming students and compelling respondent to continue admitting CHSD students upon the usual terms and conditions until the new CHSD high school is completed.

Petitioner Mills and his son, Adam E. Mills, are residents of South Manor. He contends that respondent Westhampton Beach's decision limiting the number of 10th grade students that it will accept from South Manor should not be initiated because it is "subjective and poorly timed."

Respondent Westhampton Beach denies petitioners' allegations and alleges that the limitation is justified because its high school is critically overpopulated and there are adequate alternative means for the CHSD to provide for the education of those students who are not accepted because of the limitation.

Before proceeding to the merits, I must address the request of Westhampton Beach to submit an Affidavit in Support of Answer, sworn to on February 20, 2001, by its superintendent of schools. Petitioners, citing 8 NYCRR "275.13, object to what they allege is the late service of the affidavit and request that it not be considered in this appeal. 8 NYCRR "275.13 requires that an answer, "together with all of respondent's affidavits, exhibits and other supporting papers, except a memorandum of law," be served within 20 days from the time of service of the petition. The petition was served on Westhampton Beach on January 3, 2001 and Westhampton Beach served its answer by mail on January 23, 2001. However, 8 NYCRR "276.5 provides that the Commissioner may permit, upon such terms and conditions as the Commissioner shall specify, the service and filing of additional affidavits, exhibits and other supporting papers, in addition to those served in accordance with sections 275.8, 275.13 [emphasis added] and 275.14 of Title 8 NYCRR. Westhampton Beach contends that the Affidavit in Support presents new information about events that occurred after the service of its answer, specifically that the CHSD has implemented a lottery system to determine which students who request either Westhampton Beach or Center Moriches will receive their selection. Westhampton Beach contends that this establishes that the CHSD can accommodate those students who are not able to attend the Westhampton Beach high school because of the 40 student limitation imposed by Westhampton Beach. However, the fact that the CHSD has established the lottery system, of itself, does not necessarily establish such contention, since it may also be argued to be a necessary, contingent response to Westhampton Beach's actions in imposing the limitation. Accordingly, since the information sought to be provided by the Affidavit in Support is of tenuous probative value, I deny respondent Westhampton Beach's application to submit such Affidavit and will not consider it in this appeal.

Respondent Westhampton Beach contends that petitioner Mills' appeal must be dismissed on the grounds that the Notice of Petition is defective; that the appeal is untimely; that petitioner Mills lacks standing to bring the appeal; that petitioner is not an aggrieved party; that the appeal is "duplicative" of the appeal commenced by petitioners CHSD, Eastport and South Manor; and that the petition fails to state a cause of action. Respondent Westhampton Beach also contends that petitioner"s appeal should be dismissed to the extent that it challenges determinations of South Manor relating to how 10th grade students will be selected to attend Westhampton Beach.

With respect to petitioner Mills' appeal, 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 or property rights (Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773; Appeal of Craft and Dworkin, 36 id. 314, Decision No. 13,734). Although petitioner Mills and his son are residents of South Manor, there is nothing in the record to establish that petitioner's son has not been selected to attend the 10th grade at the Westhampton Beach high school or that petitioner Mills or his son has otherwise suffered tangible injury or damage to their civil or property rights. While petitioner Mills attempted to file a reply that, among other things, addressed this issue, my Office of Counsel rejected the reply for lack of verification and proof of service and advised petitioner that a corrected reply should be immediately served upon respondents. Petitioner subsequently failed to serve and file a corrected reply. Accordingly, on the record before me, I find that petitioner Mills is not an aggrieved party within the meaning of Education Law "310 and consequently his appeal must be dismissed for lack of standing (Appeal of Kackmeister, 39 Ed Dept Rep 466, Decision No. 14,285).

Furthermore, although it is unclear to what extent petitioner Mills challenges the actions of the CHSD or South Manor, particularly with respect to an alleged special lottery to select who will be among the 40 students permitted to enter 10th grade at Westhampton Beach in the 2001-2002 school year, his petition must be dismissed to the extent he challenges the actions of the CHSD or South Manor because he has failed to name and serve either district as a respondent in his appeal (Appeal of a Student with a Disability, 39 Ed Dept Rep 752, Decision No. 14,369; Appeal of Lawson, 38 id. 713, Decision No. 14,124).

Since petitioner Mills' appeal must be dismissed on the above grounds, it is not necessary for me to address the remaining affirmative defenses raised by respondent Westhampton Beach. Nevertheless, I note that even if the appeal was not required to be dismissed for the above procedural grounds, the appeal would still be dismissed on the merits because of my finding, as set forth below, that there are "valid and sufficient reasons" pursuant to Education Law "2045(1) to justify respondent Westhampton Beach's action to limit the number of incoming 10th grade students from the CHSD. Petitioner Mills presents no evidence to rebut such finding but merely makes allegations against respondent Westhampton Beach's decision as "subjective" and "poorly timed," that relate to the effects of such decision rather than challenging its justification.

Respondents Westhampton, Remsenburg-Speonk and East Moriches contend that the appeal of petitioners CHSD, Eastport and South Manor must be dismissed for petitioners' failure to join all "sending" school districts who have students in attendance at Westhampton Beach as necessary parties to this appeal. A party whose rights would be adversely affected by a determination of an appeal in favor of petitioner is a necessary party and must be joined as such (Appeal of Lawson, supra; Appeal of Heller, 38 id. 335, Decision No. 14,048). It appears from the record that the East Quogue and Quogue School Districts, and possibly the Tuckahoe School District, also send secondary students to Westhampton Beach. However, the limitation imposed by Westhampton Beach is directed only to the students it receives from the CHSD, specifically those students entering the 10th grade who reside within the South Manor UFSD and wish to attend Westhampton Beach, commencing with the 2001-2002 school year. Consequently, a determination with respect to the limitation will directly affect only the CHSD and Westhampton Beach and there is nothing in the record to establish that the unjoined districts, or even those districts that were joined as parties, would necessarily be adversely affected by such determination. If either Westhampton Beach or the CHSD subsequently were to place limitations on the number of students to be accepted from one or more of these other school districts, the affected district(s) could commence their own appeal(s) pursuant to Education Law "310. Accordingly, I find no basis to dismiss the appeal for failure to join the East Quogue, Quogue and Tuckahoe School Districts as necessary parties. I further find that the appeal must be dismissed with respect to the Remsenburg-Speonk, East Moriches and Center Moriches School Districts because these parties also are not necessary parties and the petition otherwise fails to state a claim against these districts.

The appeal must also be dismissed on the merits. Education Law ""2040 and 2045 and 8 NYCRR "174.4 authorize a board of education to designate one or more school districts for the purpose of contracting for the education of some or all of its resident pupils. Education Law "2045(1) provides that districts shall not refuse to receive nonresident academic pupils for instruction without "valid and sufficient reasons therefor" and further provides that "[a]ll acts of the board of education or other district officers relating to such pupils and the tuition charged for their instruction are hereby declared to be subject to review by the commissioner of education." The burden of proof lies upon the receiving district to justify to the satisfaction of the Commissioner that valid and sufficient reasons exist (Matter of Bd. of Ed. of South Manor Union Free School District, 14 Ed Dept Rep 412, Decision No. 9042; Matter of Bd. of Ed. of Central School District No. 3, 8 id. 19, Decision No. 7887).

Upon the record before me, I find that respondent Westhampton Beach has met that burden. According to the December 21, 2000 letter of the president of the Westhampton Board of Education, the Westhampton Beach high school facility has a maximum building rated capacity of 850 students and a current enrollment of 981 students. A survey conducted by the Eastern Suffolk Board of Cooperative Educational Services (BOCES) comparing the building capacities of various facilities within the school districts comprising the BOCES district, found the Westhampton Beach high school to have a 116% occupancy rate. According to the January 8, 2001 affidavit of the Westhampton Beach superintendent, the Westhampton Beach high school uses a two-classroom portable unit to accommodate approximately 400 students during the course of a given school day. Moreover, two bond referenda to expand the high school facilities and increase student capacity were recently defeated by Westhampton Beach voters.

Furthermore, according to the December 21, 2000 letter of the Westhampton Beach president, the number of 10th grade students that the district received from the CHSD increased from 55 students in the 1998-99 school year, to 60 students in the 1999-2000 school year, and to 85 students in the 2000-2001 school year. Petitioners anticipate that, if CHSD students' choices, as a percentage, remain consistent with previous years, approximately 90 10th grade CHSD students will select Westhampton Beach for the 2001-2002 school year. In contrast to the factual circumstances presented in Matter of Brunswick Common School District, 14 Ed Dept Rep 33, Decision No. 8851 and Matter of Bd. of Ed. of Central School District No. 3, supra, cited by petitioners, I find the increase in CHSD 10th grade students, from 55 students to 85, or possibly 90, students over a three to four year period, to be a sufficiently substantial increase in enrollment to support Westhampton Beach"s assertions regarding the overcrowded condition of its high school.

In response to the overcrowded conditions at its high school, Westhampton Beach has imposed a 40 student limit on the number of CHSD 10th grade students that it will accept, commencing with the 2001-2002 school year, while continuing to provide for the education of all CHSD students currently attending the Westhampton Beach high school. While previous Commissioner"s decisions have found overcrowding to be a sufficient reason for a receiving school district to refuse to accept nonresident pupils (Matter of Karic, 4 Ed Dept Rep 194, Decision No. 7522), they have also recognized that additional factors, such as the interruption of pupils' learning experience, must be considered (Matter of Bd. of Ed. of South Manor UFSD, supra. However, according to the December 21, 2000 letter of the Westhampton Beach president, ". . . all those students currently in attendance will be in a position to graduate from the Westhampton Beach High School." Furthermore, rather than simply denying the entry of any 10th grade students from the CHSD, Westhampton Beach has agreed to accept 40 students for the 2001-2002 school year. Accordingly, the factual circumstances presented in this appeal are significantly different from those in South Manor, supra, where a receiving school district refused to permit any pupils from a sending school district to enroll in its seventh and eight grades, and consequently would have interrupted the learning experience of pupils from the sending district who were currently attending school in the receiving district by requiring them to attend school in another school district the following school year.

While the affidavit in support of petitioners' reply, submitted by the CHSD superintendent, expresses his concern that Westhampton Beach may further restrict its acceptance of CHSD students in subsequent years, this concern is speculative and premature at this point and, since the reasonableness of a receiving district's limitation on the number of students it will accept from a sending district is dependent upon the particular facts surrounding such exclusion, petitioners would be free to appeal any subsequent limitation imposed by Westhampton Beach. At present, however, it appears on the record before me that Westhampton Beach will continue to provide for the education of all CHSD students currently in attendance, as well as 40 additional students to be admitted for the 2001-2002 school year.

Furthermore, unlike the situation in Matter of Brunswick Common School District, supra, and Matter of Bd. of Ed. of Central School District No. 3, supra, cited by petitioners, where each of the sending schools did not maintain its own high school, here the CHSD already provides for the education of some of its South Manor students at the Eastport School for grades 7-12. Accordingly, the 10th grade CHSD students who will be unable to attend Westhampton Beach because of the 40 student limitation, would presumptively be eligible to attend the Eastport School. While I understand that the Eastport School is also overcrowded and that additional overcrowding may occur there as a result of such accommodation, I do not find it unreasonable for the CHSD to accommodate additional students at the Eastport School, in view of the agreement of Westhampton Beach to accept 40 CHSD 10th grade students for the 2001-2002 school year. This is a substantial number of students, being almost half of the approximately 90 CHSD students who are anticipated to seek enrollment at Westhampton Beach. Indeed, it would be entirely unreasonable to require the Westhampton Beach School District to accept all of the approximately 90 CHSD students that are anticipated to seek enrollment for the 2001-2002 school year, in view of the overcrowded conditions at the Westhampton Beach high school, and the recent rejection of two bond referendums to expand the high school facilities.

I also note that some CHSD students who are not accepted at Westhampton Beach could choose to attend Center Moriches. While it is true that in Matter of Trustees of Common School District No. 2 (1 Ed Dept Rep 143, Decision No. 6505), cited by petitioners, the fact that pupils could possibly attend another school was not, in and of itself, found to be a proper defense, that appeal involved different factual circumstances: the sending district did not have a high school and sought to send only four ninth grade students to the receiving district. In this appeal, the CHSD maintains its own high school and seeks to send 85-90 students to Westhampton Beach. Again, I note that the reasonableness of a receiving district's limitation on the number of students it will accept from a sending district is dependent upon the particular facts surrounding such exclusion. Lastly, I note that regardless as to how the students will be accommodated, any such arrangements will be temporary, since the CHSD high school is anticipated to be completed in time for the 2003-2004 school year.

In view of the crowded conditions at respondent Westhampton Beach's high school; the lack of interruption that will occur to the learning experience of those CHSD students already in attendance at Westhampton Beach; and the fact that those CHSD students who are not accepted at Westhampton Beach, and who do not choose to attend Center Moriches will be able to attend the Eastport School, I find that "valid and sufficient reasons" exist to justify respondent Westhampton Beach"s refusal to accept in excess of 40 additional pupils form CHSD for the 2001-2002 school year.

THE APPEALS ARE DISMISSED.

END OF FILE