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Decision No. 12,798

Appeal of JUDITH AND PETER CULLEN, on behalf of their daughter, SARAH, from action of the Board of Education of the Port Washington Union Free School District regarding attendance zones.

Decision No. 12,798

(September 8, 1992)

David V. Keegan, Esq., attorney for petitioners

Ingerman, Smith, Greenberg, Gross, Richman, Heidelberger, Reich & Scricca, Esqs., attorneys for respondent, Lawrence W. Reich, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal from respondent's denial of their request to have their daughter, Sarah, attend the district's Guggenheim Elementary School ("Guggenheim") rather than its Daly Elementary School ("Daly"). The appeal must be dismissed.

In the 1988-89 school year, petitioners moved from Soundview, New York to their current residence in Sands Point, New York. Petitioners' former residence was within the Guggenheim attendance zone while their present Sands Point residence lies within the Daly attendance zone. Respondent's policy No. 5117 provides that if a student's residence changes from one attendance zone within the district to another during the school year, the student may complete the year in the school in the former attendance zone or may be transferred to the school in the new attendance zone, at the discretion of the superintendent of schools. It is also the district's policy to permit elementary school students to complete sixth grade at their former elementary school when the family has relocated to a residence in a different attendance zone; this is referred to as the "sixth grader rule". As a corollary to that policy, the district has permitted younger siblings to continue to attend the former elementary school only while an older sibling was eligible to continue to attend such school under the "sixth grader rule".

In accordance with these policies, petitioners' children were permitted to continue at Guggenheim through the conclusion of the 1988-89 school year. At the time of the move, Douglas Cullen was in the fifth grade, Joshua Cullen was in the fourth grade and Sarah Cullen was in second grade. Since petitioners' son Douglas would be entering sixth grade in September 1989, respondent advised petitioners that Joshua, who was then entering fifth grade, and Sarah, who was then entering third grade, could continue to attend Guggenheim for the 1989-90 school year.

On April 21, 1989 respondent advised petitioners that pursuant to respondent's attendance zone policy Joshua and Sarah would also be able to attend Guggenheim for the 1990-91 school year because Joshua would then be entering sixth grade. Petitioners were also informed that Sarah would be required to transfer to Daly for the 1991-92 school year.

On June 19, 1990 respondent again informed petitioners that Sarah would have to transfer to Daly for the 1991-92 school year. In the winter of 1990, petitioners requested that respondent board reconsider and permit Sarah to remain at Guggenheim for the fifth and sixth grade. The superintendent of schools, Dr. Heebink, discussed the matter with respondent board, which decided to adhere to its existing policy with respect to sibling variances and denied petitioners' request. Petitioners were notified of respondent board's decision by letter dated January 23, 1991.

By letter dated May 1, 1991, Dr. Heebink confirmed his earlier decision that Sarah would be required to transfer to Daly in the fall of 1991. Petitioners appealed Dr. Heebink's decision to respondent board and on August 6, 1991 were granted a hearing at which their request to permit Sarah to remain at Guggenheim was denied. Petitioners commenced this appeal on August 8, 1991. On September 4, 1991, I denied a request for a stay order pending a determination on the merits. Sarah transferred to Daly in September 1991.

Petitioners contend that the transfer to Daly has adversely affected Sarah's psychological well being and, therefore, she should be permitted to attend Guggenheim. In support of this contention, petitioners attached a letter dated August 26, 1991 from Dr. Stephen M. Coleman, a professor of psychiatry at New York University Medical Center. Dr. Coleman stated in his letter that "it would clearly be in her best interests to remain at Guggenheim. She is doing well socially and academically. It would be a needless shame to jeopardize this." Petitioners also submitted a follow-up letter from Dr. Coleman dated September 25, 1991 describing Sarah's mental state. He stated that Sarah is "clearly grieving" and recommended that Sarah be allowed to return to Guggenheim.

Petitioners further contend that exceptions to the attendance zone policy set forth in policy No. 5117 have been granted in the past for similar reasons and that, in fact, during one prior school year "out of zone" attendance was so routine that a special policy was adopted to provide a mechanism for handling such requests.

Petitioners also allude to "open enrollment schemes" in other districts and their continued willingness to provide transportation for Sarah to attend Guggenheim. Finally, petitioners allege that Guggenheim had room for Sarah in the fifth grade class.

Respondent contends that Sarah currently attends Daly and has successfully adjusted to the transfer. Respondent denies that there is room for Sarah at Guggenheim and in support of that contention provides documentation indicating a continuing problem with overcrowding at that school. Respondent further contends that Dr. Coleman's letter did not indicate that petitioners' child could not successfully adapt to the program and course offerings at Daly, nor did Dr. Coleman express the opinion that there were psychological factors which would preclude such an adjustment.

Respondent also maintains that it has strictly and consistently enforced the attendance zone policy. It further asserts that the special administrative procedures alluded to by petitioners were put in place for "out-of-zone" transfers during the 1984-85 school year as a temporary measure for that school year only. At that time there were six operating elementary schools rather than four, as is the case presently. Respondent asserts that those special procedures were designed to address concerns of certain families in the district who believed that there were potential adverse health consequences associated with the Town of Hempstead landfill, which was located adjacent to the South Salem Elementary School, and therefore wished to transfer their children to other district elementary schools. The provisions of the special procedure were not continued beyond the 1984-85 school year, when the South Salem Elementary School was closed.

Respondent finally contends that students must attend their zoned elementary school except in extraordinary circumstances upon the recommendation of the superintendent of schools and with the approval of the board of education. Respondent maintains that were it not for the coincidence that Sarah has two older siblings who each serially fell within the scope of the "sixth grader rule", she would have moved to Daly two years ago.

Pursuant to Education Law '1709(3)(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. Board of Ed., 27 NY2d 333, 318 [1971]). Moreover, in the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619 [1965], cert den 382 US 905). Accordingly, decisions with regard to attendance zones will be overturned only when there is a clear showing that the board's action was arbitrary, capricious or contrary to sound educational policy (Appeal of Goldup, 30 Ed Dept Rep 477; Appeal of Hoey, 26 Ed Dept Rep 200; Matter of the Application of a Handicapped Child, 22 Ed Dept Rep 497).

Respondent's policy permits students who attend a given elementary school to complete the sixth grade at that school even though the family has moved out of the attendance zone for that school. Further, the siblings of such a student are also permitted to continue at the out-of-zone school. Petitioners' daughter was able to remain at Guggenheim, for two full school years, solely due to the fact that she had two older siblings who each met the requirements of respondent's "sixth grader rule".

I find respondent's policy fair and reasonable. Petitioners have failed to show that respondent's policy is arbitrary or capricious on its face or as applied to the facts in this case. Respondent submitted an affidavit from Sarah's fifth grade teacher at Daly as well as memoranda from the principal of Daly describing Sarah's interaction at school. The principal and Sarah's teacher reported actual observations of Sarah in the classroom as well as during lunch and free periods. They indicated that Sarah's demeanor is "almost always positive and she has been a smiling, happy and integral part of the class". It appears upon reviewing the information submitted by both parties that Sarah is experiencing some difficulties at home, but that those difficulties have not manifested themselves in Sarah's performance or attitude at school, as observed by her teacher and by the principal. Moreover, Dr. Coleman's letter did not indicate that Sarah was experiencing anything more than the typical adjustment process of a child who has changed schools. Therefore, I find that respondent's decision not to exercise its authority to permit Sarah to attend Guggenheim is not arbitrary or capricious.

I have considered petitioners' remaining claims and find them without merit.