Appeal of SANDRA STINES, on behalf of her daughter SOPHIA, from action of the Board of Education of the Hicksville Union Free School District regarding class size.

Decision No. 16,109

(July 27, 2010)

Guercio & Guercio, LLP, attorneys for respondents, John P. Sheahan, Esq., of counsel

STEINER, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Hicksville Union Free School District (“respondent”) to reduce the size of her daughter’s first grade class.    The appeal must be dismissed.

During the 2009-2010 school year, petitioner’s daughter attended the first grade in respondent’s Dutch Lane Elementary School (“Dutch Lane”).  In January 2009, respondent began its budget preparation and review for the 2009-2010 school year, including mailing its budget development calendar to the community.  The calendar stated that elementary enrollments and class size would be discussed at a public meeting on February 4, 2009 and encouraged members of the community to attend.   At the meeting, the superintendent and assistant superintendent for personnel gave a presentation regarding enrollment projections and proposed class size options for the 2009-2010 school year.  They reported a decline in enrollment district-wide during the 2008-2009 school year, with Dutch Lane’s enrollment decreasing from 230 to 209 students.  The maximum class size was set at 27 for the 2008-2009 school year, resulting in Dutch Lane splitting two kindergarten classes into 15 and 14 students; two first grade classes at 14 each; and two second grade classes of 14 and 13 students.  Petitioner’s daughter attended the Dutch Lane kindergarten class with 15 students during the 2008-2009 school year.

Because class sizes at Dutch Lane were lower than the other elementary school buildings in the district, and for fiscal reasons, it was announced at the February 4, 2009 meeting that a new minimum number of 16 students per class would be recommended for 2009-2010, with a goal of achieving parity among schools.  The presentation included a discussion that the new minimum of 16 students per class could possibly result in a class size of 31 students.  For classes that exceed the split number of 27, it was proposed that two part-time teaching assistants be assigned, one in the morning and one in the afternoon, to ensure that two adults would always be supervising the students.  Following the presentation and discussion with members of the community, respondent came to a consensus and adopted the recommendations.

Respondent’s decisions on February 4, 2009 included setting September 1, 2009 as the cut-off date to determine class enrollment for the 2009-2010 school year and formed the basis of the 2009-2010 budget with regard to staffing, building use and equipment.  The class size decisions were reflected in the budget developed and modified over the course of budget meetings and workshops.  At respondent’s public meetings on April 21 and May 6, 2009, the superintendent presented the proposed 2009-2010 budget, including the class size decision and the rationale for the change.  Voters approved the proposed budget in May 2009.

The assistant superintendent for personnel attended a meeting of the Parent Teacher Association (PTA) at Dutch Lane in September 2009 to address questions regarding class size and enrollment.  At respondent’s September 23, 2009 public meeting, petitioner complained about the size of her daughter’s first grade class and requested reconsideration of the February 4, 2009 decision to set new class size limits.  At that September 2009 meeting, the superintendent explained the rationale for the change, including district policy requiring balancing budgetary concerns with overall instructional goals to achieve a system which is both academically sound and cost-effective while providing class-size parity among all the schools.  Petitioner asked that respondent place the issue on the agenda for the next meeting and followed up with a letter. 

On October 21, 2009, petitioner and other members of the community addressed respondent at its regularly scheduled public meeting where the issue of class size at Dutch Lane was again discussed.   At that meeting, respondent unanimously decided not to reconsider its February 4, 2009 decision regarding class size.  Before the vote, the president of the board explained the reasons for the decision made on February 4, 2009.

Petitioner contends that respondent doubled her daughter’s class size at Dutch Lane, from 15 students in her 2008-2009 kindergarten to 30 students in her 2009-2010 first grade class, despite numerous studies citing the benefits of small classes in elementary grades.  Petitioner also contends that dividing her daughter’s first grade class and the other first grade class at the 27 split number into two classes of 15 students would achieve greater parity among the district’s schools.  Petitioner asserts that the district has a $4.5 million surplus that should be used to reduce class size.

Respondent contends that the appeal is untimely.  Respondent defends its decision as rational and asserts that petitioner has not demonstrated any factual basis for overturning it or any legal authority for the Commissioner to reduce the size of her daughter’s class.  Respondent contends that granting the relief requested by petitioner would result in changing the class size limits for the district’s other six elementary school buildings, requiring an additional 42 classrooms and 42 teachers, an impossibility.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).  Petitioner commenced her appeal on November 2, 2009, more than 30 days after respondent’s February 4, 2009 decision and more than 30 days after the first day of its implementation on September 8, 2009.  Petitioner did not offer any excuse for the delay in her petition and did not submit a reply to respondent’s affirmative defense in its answer.  Consequently, I must dismiss the appeal as untimely. 

Even if this appeal were timely, it would be dismissed on the merits.  Petitioner objects to her daughter’s assignment to a first grade with 30 students and complains that respondent’s class size policy lacks a sound educational basis.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Brown, 46 Ed Dept Rep 584, Decision No. 15,602; Appeals of Hubbard, 46 id. 533, Decision No. 15,585; Appeal of Darrow, 46 id. 182, Decision No. 15,477).  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; Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950).  A board of education also has broad authority to prescribe the course of study and to regulate the admission of pupils and their transfer from one class to another.  Consistent with that authority, a board has the power to place students in particular classes (Appeal of J.A., 49 Ed Dept Rep 167, Decision 15,987; Appeal of Gergely, 47 id. 423, Decision No. 15,742).  The Commissioner will not substitute his judgment for that of a board of education with respect to student placement, absent evidence that the board has acted in an illegal, arbitrary or capricious manner (Appeal of J.A., 49 Ed Dept Rep 167, Decision No. 15,987; Appeal of Gergely, 47 id. 423, Decision No. 15,742). 

In this case, respondent contracted with a third-party demographer and based its decision to change its class size policy on an analysis of data and consideration of options within the district’s space and fiscal limitations, while balancing instructional goals and the need for parity among schools.  The record reflects that respondent reached a consensus only after discussions with the administration and members of the community at several board meetings and consideration of options and ramifications presented by various scenarios.  Petitioner may not agree with respondent’s rationale for the class size policy, but there is nothing in the record to indicate that it is arbitrary, capricious or illegal.

THE APPEAL IS DISMISSED.

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