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Decision No. 13,017

Appeal of DOROTHEA BENNARDO from action of the Board of Education of the Hicksville Union Free School District relating to school district reorganization.

Decision No. 13,017

(September 22, 1993)

Galasso, Langione & Goidell, Esqs., attorneys for petitioner, Mark E. Goidell, Esq., of counsel

Guercio & Guercio, Esqs., attorneys for respondent, Gary L. Steffanetta, Esq., of counsel

SOBOL, Commissioner.--Petitioner appeals from respondent board's adoption of a resolution on October 15, 1992, closing the East Street Elementary School effective June 30, 1993 and reconstituting attendance zones for the district's remaining elementary schools. The appeal must be dismissed.

During the 1992-1993 school year, respondent operated seven elementary schools with grade levels K-5 (the sixth grade programs in these schools were removed to the middle school building prior to the 1992-1993 school year). Like many districts in Nassau County, respondent has experienced a long period of declining enrollments. During the 1990-1991 school year, respondent operated eight elementary schools, one of which (Willet Avenue) was closed prior to the 1991-1992 school year. That school closing was appealed to me in Appeal of Voss (31 Ed Dept Rep 56). That decision recites in some detail the history of declining enrollments and school closings within this district, which will not be repeated here. As noted therein (31 id. at 57) on October 24, 1990, respondent board actually voted to close the same East Street Elementary School which is the subject of this appeal together with the Willet Avenue School, effective September 1991. However, after voting to close East Street, the board later changed its mind and voted only to close Willet Avenue.

In addition to the numerous engineering, transportation, and demographic studies recited in the earlier decision, since October 1990 respondent has hired three separate consulting firms and has also appointed a "Lay Committee" of citizens to work with one of the consultant firms to guide it in the ongoing study of the district's resources and needs in the face of declining enrollment.

Petitioner is the parent of a child who attended the East Street Elementary School and was also president of that school's PTA. Petitioner contends that the decision to close East Street and to redistribute its students was contrary to the recommendation of the board's paid consultants, not recommended by the superintendent, in violation of Education Law '402-a and arbitrary and capricious. She also argues that respondent's decision must be set aside because it fails to correct alleged problems of racial imbalance in enrollments between and among the six elementary schools which will survive respondent's closure order.

Respondent argues that it has carefully and thoroughly studied the relevant facts and is well within its legal authority to close this particular elementary school and to enact new attendance zones. Accordingly, respondent contends that its decision was not arbitrary or capricious. It argues that the closure of the East Street Elementary School was the best decision that could be made under all the circumstances and that the racial make-up of the surviving schools will actually be improved by the restructuring of attendance zones. Respondent also objects to certain new material made part of petitioner's reply.

I agree with respondent as to petitioner's reply. The purpose of a reply is to respond to procedural defenses or new material contained in an answer (8 NYCRR ''275.3, 275.14). A reply may not be used to add new material which should have been in the petition (Appeal of Whitaker, 33 Ed Dept Rep , decision number 12974, August 2, 1993; Appeal of Taber, et al., 32 id. 346; Appeal of Mermelstein, et al., 30 id. 119). Respondent has established that the new material offered in the reply was available more than two weeks before petitioner commenced her appeal, yet she attempted to assert it in her reply rather than her petition. Accordingly, I will not consider the new material included in petitioner's reply.

It is well settled that decisions concerning school district reorganization are within the sound discretion of a board of education and will not be set aside unless they are shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333, 318 NYS 2d 127; Matter Lifshey, 19 Ed Dept Rep 105; Matter of Maur, 21 id. 164; Matter of Stamper, 24 id. 502; Appeal of Voss, supra). Petitioner bears the burden of clearly demonstrating that respondent board's action was arbitrary, capricious, or contrary to sound educational policy (Matter of Malang, 26 Ed Dept Rep 134). I find that petitioner has not met that burden of proof (Appeal of Orzechowski, 27 Ed Dept Rep 448; Appeal of Randolph, 28 id. 122; Appeal of McNerney, 28 id. 250).

The record shows that the board has done a thorough and comprehensive job of evaluating the problems caused by the district's declining enrollment. Indeed, the board continued to gather information as thoroughly as it had prior to the decision in Voss. The East Street Elementary School, although projected to have a temporary enrollment increase as a result of the closing of the Willet Avenue School in September 1991, actually experienced a 2.6% decline in its enrollment for the 1991-1992 school year and is the only elementary school in the district projected to have a continued decline through 1996. While East Street had the second highest enrollment capacity among the elementary schools, it had only the fifth highest actual enrollment among the seven in recent years: only 224 students in 1992-1993. The third floor of the building was not used for regular elementary school classes and if another school had been closed, it would have required substantial renovation. Under the district's transportation policy, all students to be displaced from East Street are eligible for transportation, and respondent states that no trip to or from the new school assignment should be more than thirty minutes in either direction.

As a result of the closing of East Street, respondent will be able to equalize class sizes, to some extent, throughout the district. Respondent estimates that no class will exceed 27 pupils. As a further result, two of the remaining six schools will be at or near their optimal capacities, and all schools will be operating nearer their maximum levels of efficiency. For all the foregoing reasons, I find that the board's decision is not arbitrary, capricious, or lacking in a rational basis. As I said in Voss, a board may seek advice from the community, from paid consultants and from its superintendent, but it is ultimately the board's responsibility to make the decision to reorganize the district (31 Ed Dept Rep at 60; Appeal of Malang, supra).

Normally, the inquiry would be ended at this point. However, petitioner claims that respondent's action fails to address what petitioner perceives as a disparity of racial enrollments within the elementary schools of the district. Petitioner alleges that respondent's action is susceptible to being stricken down on that basis and that "the existence of an independent race-neutral rational basis for the challenge of the decision is irrelevant." For this proposition, petitioner cites several decisions of the Commissioner of Education, including Matter of Mitchell, et al., 3 Ed Dept Rep 26; Matter of Gray, et al., 6 id. 92; and Matter of Fishburne, 12 id. 5.

Petitioner's reliance upon these decisions is misplaced. Matter of Mitchell, et al., supra, was an attempt to reopen the Commissioner's decision in Matter of Mitchell, et al., 2 Ed Dept Rep 501. In the Commissioner's original decision, facts are presented which indicate that respondent school district maintained three elementary schools. One, the Woodfield Road School, had a minority enrollment of approximately 75%, which was increasing annually. The other two elementary schools had a minority enrollment of approximately 14% each. (The overall racial composition is not stated in the decision.) The Commissioner found that a serious racial imbalance existed and that the imbalance constituted a deprivation of quality of educational opportunity envisioned under the Education Law for those pupils compelled to attend the school with the 75% minority enrollment.

In Matter of Gray, et al., the Commissioner discussed racial balance at Andrew Jackson High School in Queens. In that case, he found that the ethnic composition was Puerto Ricans 1.6%, Blacks 46.7% and others 51.8%, while the percentage of Blacks attending all high schools in Queens County was 15.6%. The Commissioner further found that the percentage of black students at Andrew Jackson had increased from 27.5% in 1960 to 46.7% in 1967. The Commissioner was concerned that the high school in question had a black percentage of enrollment which was three times that of the average for Queens County and directed that the Board of Education of the City School District of the City of New York prepare and submit a report for the correction of this imbalance.

In Matter of Fishburne, the Commissioner reviewed the action of the Board of Education of Union Free School District No. 3 in the Town of Huntington. Regrettably, the decision does not discuss the racial compositions of the schools which existed prior to the closings of three elementary schools and the opening of one new elementary school which were the basis for the appeal. The Commissioner found that as a whole the district had a minority population of approximately 11%. After the reorganization, five elementary schools had a minority enrollment of more than 11% while three schools had a minority enrollment of much less than 11%. Significantly, the three schools with the lowest minority enrollments were 4.3%, less than 2.2%, and less than 1.0%, while the school with the highest enrollment had a 28.5% minority enrollment figure. In Fishburne, the Commissioner was concerned that the maximum variation between the school with the highest and lowest minority enrollments exceeded 27%, but his decision was not based on that particular figure. The decision does not say whether the board's actions increased or decreased the disparate enrollment figures. While petitioner relies heavily on the enrollment figures, she ignores other significant aspects of the case. The Commissioner, in fact, relied on other factors in reaching his decision (12 Ed Dept Rep at 6):

In defending its redistricting plan, the respondent claims that the plan insures optimum use of buildings, attendance zones based on geographic areas, equity in each school population and achievement of relative permanence of the districts. A review of the evidence submitted reveals that in fact the plan does not achieve these goals. For example, Nathan Hale School is too small to be operated efficiently and the student population is steadily declining, with a strong possibility that the school may no longer be needed within the next few years. Yet the attendance zone for this school does not extend far enough south to include more than a 4% nonwhite population. Except for the fact that the schools in the predominantly white northern portion of the district are maintained as almost exclusively white, no special geographic considerations are insured by the plan. Additionally, an urban renewal project is currently under way and, when complete, may cause the pupil population of the Huntington School to have a substantially higher nonwhite population than at present. (Emphasis added. The Huntington School had the second highest minority enrollment percentage.)

In contrast, in Hicksville the overall enrollment of minority students appears to be approximately 17%. The chart below summarizes the minority enrollment figures both before and after the closing of the East Street school:


1992-1993 1993-1994

Burns Avenue 37.6% 37.3%

Old Country Road 25.6% 28.6%

East Street 17.4% closed

Lee Avenue 16.7% 19.4%

Woodland Avenue 16.3% 15.3%

Fork Lane 7.0% 10.0%

Dutch Lane 7.5% 6.2%

While some disparity in racial enrollments is certainly present, after the closing of the East Street school three schools will have a minority enrollment above the district average, while three will have enrollments below the average. Compared to enrollments in Mitchell, and compared to the disparity of three times the average discussed in Gray, the disparity alleged in Hicksville is substantially less. There is, for example, only one school with a minority enrollment below 10%, and the rezoning has actually brought down the minority enrollment at Burns somewhat.

In view of the difficult choices facing respondent and the ongoing nature of the process in the face of continually declining enrollments, I cannot say that respondent's actions have been arbitrary, capricious or lacking in a reasonable basis. I am impressed by respondent's assertion that aside from this appeal, it has received no complaints from district residents about its actions in this matter. In fact, respondent has filed with its answer hundreds of affidavits and statements signed by district residents who have no objection to the reorganization. Nevertheless, the imbalance in racial enrollments among the district's elementary schools, while not requiring my intervention, is a subject that should be addressed by the district, and I urge respondent board to continue to study the matter and to improve the district-wide enrollment pattern.

I have considered the other arguments of the parties and find them without merit.