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Decision No. 13,096

Appeal of CYNTHIA SHERWOOD, KENNETH L. O'BRIEN, JANE M. O'BRIEN, TIMOTHY K. YOUNG, PATRICIA A. YOUNG, THOMAS R. BARNHARDT and CATHERINE SKOLIKAS-BARNHARDT from action of the Board of Education of the Lancaster Central School District relating to the reorganization of schools.

Decision No. 13,096

(January 19, 1994)

Richard J. Sherwood, Esq., attorney for petitioners

Hodgson, Russ, Andrews, Woods, & Goodyear, Esqs., attorneys for respondent, Karl W.

Kristoff, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal respondent's adoption of a school district reorganization plan that transfers kindergarten students. The appeal must be dismissed.

During the 1992-93 school year, the Board of Education of the Lancaster Central School District ("respondent") moved 48 kindergarten students from the Como Park Elementary School to the Court Street Elementary School ("Court Street School") to ease overcrowding. In December 1992, respondent reviewed projections, staffing requests and budget provisions and determined that a need existed for additional classrooms at the Court Street School for the 1993-94 school year. In May 1993, the voters rejected a proposition to purchase modular classrooms for the Court Street School to meet the need for additional classrooms. Respondent then considered eight options for redistricting to ease overcrowding. After reviewing the options, respondent adopted a district reorganization plan that involved moving 66 kindergarten students from Court Street School to John A. Sciole Elementary School and Central Avenue Elementary School for the 1993-94 school year. This appeal ensued.

Petitioners seek a reversal of respondent's decision to transfer kindergarten students from one school to another. Petitioners allege that the students should remain at the Court Street School for the 1993-94 school year. Petitioners also maintain that respondent has acted in an arbitrary and capricious manner. As a procedural matter, petitioners seek to bring this appeal as a class appeal.

Respondent contends that it has broad discretion under Education Law '1709 in the assignment of students. Respondent argues that it tried to meet the need for additional classrooms by proposing a referendum for the purchase of modular classrooms, but when that referendum was defeated, it chose the option least disruptive to students.

Before reaching the merits, I must first address the procedural issue. Petitioners seek to bring this appeal on their own behalf and "on behalf of all members of the class of persons similarly aggrieved." A class appeal is permitted "only 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[a]). Where petitioners fail to set forth the number of individuals they seek to represent, class status will not be permitted (Appeal of Reid, 32 Ed Dept Rep 587; Appeal of Rosenberg, 32 id. 165; Appeal of the National Association of the Advancement of Colored People (NAACP) Schenectady Branch, et al., 30 id. 187). In this case, petitioners allege to represent similarly aggrieved persons, but fail to set forth the number of individuals in the proposed class and that members of the class are so numerous that joinder is impracticable. Class status is, therefore, denied.

The appeal must also be dismissed on the merits. A board of education has broad discretion in the assignment of pupils to schools within the district (Matter of Addabo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert. den. 382 US 905; Matter of Balaban v. Rubin, 20 AD2d 438, aff'd 14 NY2d 193, cert. den. 379 US 881). Accordingly, a decision concerning school district reorganization will not be set aside unless it is shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333; Matter of DeVito, et al. v. Nyquist, et al., 56 AD2d 159, aff'd 43 NY2d 681). Moreover, petitioners bear the burden of demonstrating that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of McNerney, et al., 28 Ed Dept Rep 250; Matter of Malang, 26 id. 134). I find that petitioners have failed to meet their burden of proof.

Petitioners' main concern is that respondent's reorganization plan will result in the transfer of kindergarten students from the elementary school closest to their homes and will result in longer transportation for those students. Respondent states that the transportation times for students will be approximately 45 minutes for the morning take-home ride and afternoon pick-up ride and that the afternoon take-home ride will be approximately 50 minutes. Such transportation times, while unfortunate, are not unreasonable (Appeal of Polifka, 31 Ed Dept Rep 61; Appeal of Lapozza, 25 id. 15; Matter of Rouis, 20 id. 493), especially in light of the circumstances of overcrowding presented in this case.

Petitioners also contend, however, that respondent's schools are not overcrowded. They base this contention on acceptable capacity rates issued by New York State. Respondent addresses this argument by showing that its needs are not based on building enrollment, but the number of classrooms needed. The transfer of kindergarten students would result in the availability of two additional classrooms which will be used for additional third grade and fifth grade classes. The record shows that respondent considered a number of options and chose the one it believed least disruptive to the students in its district. While it is regrettable, as petitioners note, that kindergarten students may be separated from siblings and denied continuity in the location of their elementary education, I find no evidence that respondent's decision was arbitrary, capricious, or lacking in a rational basis.