Appeal of THOMAS and ELAINE STRADE, LOUIS PANEPENTO and CHERYL OLIVIERI, JAMES and SHEILA VISCO, and PATRICK and KRISTINE BASKERVILLE on behalf of their respective children, and the ORCHARD PARK CENTRAL SCHOOL DISTRICT TAXPAYERS, from action of the Board of Education of the Orchard Park Central District regarding redistricting.

Decision No. 15,797

(July 28, 2008)

Hodgson Russ LLP, attorneys for respondent, Jeffrey F. Swiatek, Esq., of counsel

Petitioners appeal the redistricting plan adopted by the Board of Education of the Orchard Park Central School District (“respondent” or “board”) on December 11, 2007.  The appeal must be dismissed.

In July 2006, a Building Capacity Committee (“Committee”) was formed to review and evaluate building capacity and related issues in the district’s four elementary schools (Windom, Eggert, South Davis and Ellicott).  The Committee was comprised of two teachers and two parents from each elementary school, two board members, three school-related professionals and seven administrators, including the superintendent.  Between July and October 2006, the Committee held seven public meetings and the superintendent held three public forums.  According to the superintendent, the Committee reviewed approximately eighteen different approaches to addressing the capacity imbalances in the four elementary schools, including building additions, changing grade level configurations, and reconfiguring the district office building into an elementary school.

In a report dated November 14, 2006, the Committee recommended to respondent that it redistrict the elementary school attendance boundaries.  The Committee also recommended the formation of a subcommittee to explore redistricting options and the hiring of an outside consultant for the redistricting process.

After considering the Committee’s recommendations for six months, respondent formed a Re-Alignment Task Force (“Task Force”) in May 2007, comprised of two parents from each elementary school along with the superintendent and a former board member as co-chairs.  The Task Force also utilized two demographers and a transportation consultant.  The Task Force followed a shared decision-making approach and developed and evaluated ten proposals and held seven public meetings between June and August 2007.  On September 5, 2007, the Task Force held a workshop and determined that “Plan 667” (so-named because it moved 667 students)[1] was the option that most effectively addressed the elementary school capacity imbalances on both a short and long-term basis.  The Task Force presented its recommendation of Plan 667 to the community at a public meeting on September 10, 2007, and recommended Plan 667 to respondent on September 25, 2007.

On October 2, 2007, respondent held a public meeting to receive public comment on Plan 667.  On October 16, 2007, respondent designated a Realignment Subgroup (“Subgroup”) consisting of three board members to confirm the Task Force’s data and address other questions relating to Plan 667.  The Subgroup reported at respondent’s October 23, 2007 meeting that it had verified the Task Force’s data.  Thereafter, respondent directed the superintendent to present at least two additional redistricting plans, including a possible modification of Plan 667.

On November 13, 2007, the superintendent presented four redistricting options to respondent: Plans 632 (a modification of Plan 667), 414, 212 and 195 (all so-named because each plan moved that number of students, albeit from and into different schools).  Respondent eventually focused on Plan 212, and scheduled a public meeting for November 19, 2007 to solicit community comment on Plan 212 in particular and redistricting in general.  At its November 27, 2007 meeting, respondent reviewed all five plans and determined to adopt a set of five “core beliefs” to guide its consideration of redistricting options: keeping neighborhoods together; equitable class sizes and delivery of services for all four schools; minimization of bus travel time; minimization of the number of transitions; and long-term viability.  Respondent then approved the removal of Plans 667 and 195 from consideration.

At its December 10, 2007 meeting, respondent solicited public comment on the three remaining plans, 632, 414, and 212.  The superintendent also presented an additional Plan 187, and respondent received comment on this option.  On December 11, 2007, respondent received further public comment, and after considering all four plans, adopted Plan 632 to begin with the start of the 2008-2009 school year.  This appeal ensued.  Petitioners’ request for interim relief was denied on January 30, 2008.

Petitioners contend that respondent should have adopted Plan 414 instead of Plan 632 allegedly because Plan 414 yielded nearly identical statistical results to Plan 632 but moved fewer students and correlated more strongly with the adopted core beliefs.  They assert, that by adopting Plan 632 instead of Plan 414, respondent failed in its fiduciary responsibilities to district taxpayers by moving 218 more students and grandfathering 47 more fifth graders than necessary.  The further assert that moving 28% of the elementary student body to reduce class size averages from 22.1 to 20 is excessive, irrational and contrary to sound educational policy.  They further contend that respondent never provided any financial or cost estimates for any of the plans except for the estimated transportation costs of the “grandfathered” fifth graders.  They allege that Plan 632 could cost taxpayers over $45,000, whereas Plan 414 could cost taxpayers less than $30,000, since Plan 414 would grandfather only 78 fifth graders.  Petitioners seek an order requiring respondent to reconsider the adoption of Plan 632 utilizing outside consultants, and to develop a new redistricting plan that meets the core beliefs adopted by respondent and shared by the taxpayers.

Respondent asserts that the petition must be dismissed for lack of standing.  Respondent further asserts that it has broad discretion regarding assignment of students for school attendance and that its adoption of Plan 632 is reasonable and a rational exercise of its authority to determine the district’s attendance boundaries.  It contends that Plan 632 best satisfies the criteria established to guide the evaluation of redistricting options, including the core beliefs, and best serves the interests of the district and its students on both a short and long-term basis when compared to the other plans under consideration.  Respondent asserts that Plan 632’s adoption resulted from a process that involved district administrators, board members, consultants, parents, and community members and that the public had the opportunity to comment on at least fifteen occasions.

I will first address the issue of standing.  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Samuel, 45 Ed Dept Rep 418, Decision No. 15,371; Appeal of Sweeney, 44 id. 176, Decision No. 15,139; Appeal of Allard, 43 id. 167, Decision No. 14,957).  Contrary to respondent’s assertion, the individual petitioners affirmatively state that they are district residents and taxpayers.  Although petitioners do not allege that they or their children will be harmed by the redistricting, they challenge the costs of the redistricting plan.  Accordingly, I find that the individual petitioners have standing to challenge respondent’s action.

Petitioners also bring this appeal on behalf of Orchard Park Central School (“OPCS”) District Taxpayers, which respondent alleges is an unincorporated association.  To the extent OPCS District Taxpayers is an unincorporated association, such an association lacks standing to maintain an appeal under Education Law §310 (Appeal of Munch, 47 Ed Dept Rep 199, Decision No. 15,667; Appeal of Russo, Jr., 46 id. 266, Decision No. 15,504; Application of Simmons, 43 id. 7, Decision No. 14,899).

Moreover, to the extent petitioners attempt to represent a class of fellow residents and taxpayers, their request must be denied.  An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Ockimey, 44 id. 169, Decision No. 15,136).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Appeal of Hempstead Parents/Community United, 45 id. 354, Decision No. 15,346; Appeal of Garmaeva, 43 id. 253, Decision No. 14,988).  Petitioners’ pleadings are entirely devoid of any allegations addressing those criteria.  Therefore, petitioners’ request for class status is denied.

Pursuant to Education Law §1709(3) and (33), 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 (Matter of Older, et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  In such cases, a board’s discretion is broad (see, Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert. den. 382 US 905; Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  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, et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  Moreover, petitioners bear the burden of demonstrating that respondent’s action was arbitrary, capricious or contrary to sound educational policy (Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887; Appeal of Franchese, 39 id. 285, Decision No. 14,239).

Petitioners do not dispute respondent’s authority to redistrict or the level of community involvement in the process.  They allege, however, that respondent made a hurried and arbitrary decision in order to bring the nearly two-year redistricting process to a rapid conclusion.  Petitioners assert that at its November 13, 2007 meeting, respondent informally voted to remove Plans 632, 414 and 195 from consideration after identifying weaknesses in each plan, and thus did not fully analyze the data related to them or receive significant public comment on them.  They claim that respondent initially dismissed the Task Force Plan (Plan 667) because it moved too many students, and then arbitrarily selected Plan 632 (a modification of Plan 667), which moved the most students of the remaining plans.  They assert that the results of Plan 632, which moves 28% of the student body, can be achieved by Plan 414, which moves 18% of students, and that the adoption of Plan 632 is irrational.  Petitioners also point out that Plan 414 minimizes the movement of students from Ellicott and allege it is more fiscally responsible than Plan 632.

According to respondent, Plan 632 adheres to the adopted core beliefs.  Respondent states that: Plan 632 reunites neighborhoods previously separated by the last redistricting plan implemented in 1992; class size averages at South Davis and Eggert will align with the other two schools, and teachers will have full classroom space; and all redistricted students will attend the first or second closest school in travel time.  It also states that although Plan 632 moves more children, it reduces the likelihood of future redistricting.  Furthermore, in terms of long-term viability, Plan 632 was the only option that removed one particular neighborhood, the Birdsong development, from the smallest school, South Davis.  Since that development has 250 new homes sites, and South Davis has no available space for additions if needed, removing Birdsong from the South Davis attendance boundary provided a greater long-term solution than the other three plans.  Respondent states that based on the demographer’s cohort survival study, Plan 632 indicated balanced capacities at all four schools through 2015.

Respondent also discussed several adverse affects that would result if Plan 632 were not passed.  It states that South Davis and Eggert would be beyond maximum capacity; those schools would not be able to provide equitable services because their class sizes would be greater; special subject teachers would have roaming carts instead of fixed classrooms; extra curricular activities would be curtailed at these two schools due to lack of space and over enrollment; school-wide programs would not be possible; one teacher at South Davis would not have a dedicated classroom; and parking and bus loops at Eggert would be overcrowded because of extra staff and added buses.

On the totality of the record before me, I find that petitioners have failed to meet their burden of proof.  Respondent made extensive efforts to consider numerous factors, options and community input, availed itself of professional transportation and demographic assistance, and determined that Plan 632 best satisfies the evaluating criteria and best serves the needs and interests of the district and students.  Based on the record before me, I cannot conclude that respondent’s decision to adopt Plan 632, or that the Plan itself is arbitrary, capricious or educationally unsound.

THE APPEAL IS DISMISSED.

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