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Decision No. 13,252

Appeal of BARBARA A. DEFONCE and JAMES T. DEFONCE, JR., individually and on behalf of their daughter, KELLY DEFONCE, from action of the Lakeland Central School District regarding attendance zones.

Decision No. 13,252

(September 2, 1994)

Lovett & Gould, Esqs., attorneys for petitioners, Jonathan Lovett, Esq., of counsel

Steyer & Sirota, Esqs., attorneys for respondent, Murray Steyer, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the denial of their request for their daughter, Kelly, to attend the district's Lakeland High School ("Lakeland") rather than its Walter Panas High School ("Walter Panas"). The appeal must be dismissed.

In 1972, the Board of Education of the Lakeland Central School District ("board") approved a housing plan which established attendance zones for the district's two high schools. According to the plan, pupils living west of Lexington Avenue will be assigned to Walter Panas and pupils living east of Lexington Avenue will attend Lakeland.

In addition, respondent subsequently adopted policy no. 5117 which requires the assignment of students to the building which serves the attendance zone in which they reside. This policy, however, permits students to attend schools outside of their attendance zones under certain circumstances. Specifically, the policy provides that a student may be assigned to a building outside the student's attendance zone where the superintendent or his/her designee determines that such an assignment is necessary to the management and control of the educational affairs of the district or where the board approves the recommendation of the district for such an assignment. In addition, the policy provides that a student may be assigned to another building if required by law.

Petitioners' residence fronts and is situated upon the westerly side of Lexington Avenue. In or about March 1994, petitioners were notified that Kelly would be assigned to Walter Panas. Upon receiving this notification, petitioners requested that Kelly be assigned to Lakeland. Petitioners based their request in part on the fact that Kelly's older sister attends Lakeland. In addition, petitioners made this request because Kelly had participated on two of Lakeland's sports teams during the 1993-94 school year, while in the eighth grade.

By letter dated March 21, 1994, an assistant to the superintendent notified petitioners that the superintendent had denied their request. Petitioners then met with the superintendent to appeal this determination. By letter dated April 15, 1994 the superintendent again denied petitioners' request. This appeal ensued.

Petitioners contend that the denial of their request is arbitrary, capricious and irrational. Petitioners allege that during the past seventeen years, students residing in homes fronting on the westerly side of Lexington Avenue have attended Lakeland rather than Walter Panas. Petitioners maintain that they relied on this alleged practice and argue that the district should be estopped from changing its policy. Petitioners further maintain that the denial of their request is arbitrary and capricious because Kelly's older sister attends Lakeland and Kelly has in the past participated on Lakeland's sports teams.

Petitioners also contend that the child of a faculty member has been permitted to attend Lakeland regardless of her attendance zone. Petitioners further claim that respondent permitted another student to attend Lakeland for similar reasons.

Respondent contends that the appeal must be dismissed for failure to exhaust administrative remedies, untimeliness and failure to join a necessary party. With regard to the merits, respondent maintains that the assignment of pupils is within its discretion. Respondent also contends that petitioners have failed to show that its policy is arbitrary, capricious or unreasonable. Lastly, respondent denies that it changed its policy and maintains that the doctrine of estoppel cannot be used against it.

Before reviewing the merits of this appeal, I must first address the procedural issues raised by respondent. Respondent contends that the appeal should be dismissed because petitioners failed to follow its policy which required petitioners to appeal to the board prior to bringing an appeal to the Commissioner. However, the record reveals that the board's policy merely sets forth the "normal channel" for complaints on appeals of decisions made by school personnel and does not appear to require an appeal to the board. Respondent additionally cites several prior Commissioner's decisions in support of its exhaustion of remedies argument. However, the decisions cited by respondent relate to student suspensions under Education Law '3214, a statute which explicitly provides for an administrative appeal from a superintendent's decision to the board of education. These decisions, therefore, are not controlling in the instant case regarding attendance zones. Because respondent has failed to articulate a legal mandate that requires petitioner to appeal the superintendent's decision in this matter to the board, I decline to dismiss the appeal on that basis.

Respondent further contends that the appeal should be dismissed as untimely. An appeal to the Commissioner of Education pursuant to Education Law '310 must be commenced within 30 days from the making of the decision or the performance of the act complained of (8 NYCRR 275.16). Respondent maintains that the housing plan, which was adopted in 1972, applied to Kelly on or about September 1, 1992, when she entered the 7th grade. Therefore, respondent argues that the appeal, which was commenced on April 20, 1994, is untimely. Petitioners, however, are appealing the superintendent's denial of their request that Kelly be permitted to attend Lakeland. The superintendent denied petitioners' request by letters dated March 21 and April 15, 1994. Therefore, I conclude that petitioners were not aggrieved until the superintendent's denial of their request and that this appeal was commenced in a timely manner.

I also decline to dismiss this appeal for failure to join a necessary party. Respondent argues that petitioners did not name the superintendent of schools as a party and did not serve him with a copy of the petition. The record reveals that petitioners failed to name Superintendent Siebert as a respondent in the caption of the case. However, he was identified as a respondent in the third paragraph of the petition and was duly served with a copy of the petition. Essentially, petitioners simply failed to phrase the caption of the case correctly. Superintendent Siebert submitted an affidavit in support of respondent's verified answer in which he requested that the appeal be dismissed. Therefore, I do not find that he was prejudiced by petitioners' deminimis error. Accordingly, this is not a basis to dismiss the petition.

The appeal, however, must be dismissed on the merits. 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. Board of Ed., 27 NY2d 333). 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, cert. den. 382 US 905). Accordingly, decisions with regard to attendance zones will be overturned only where there is a clear demonstration that the board's action was arbitrary, capricious or contrary to sound educational policy (Appeal of Cullen, 32 Ed Dept Rep 179; Appeal of Goldup, 30 id. 477; Appeal of Hoey, et al., 26 id. 200).

Upon review, I find respondent's attendance zone policy fair and reasonable. Under respondent's policy, students must attend the school which serves their attendance zone with certain exceptions. According to respondent's housing plan, pupils living west of Lexington Avenue are assigned to Walter Panas and pupils living east of Lexington Avenue are assigned to Lakeland. The record shows that respondent considers the center of Lexington Avenue as the dividing line between the two attendance zones. I find that respondent's interpretation is rational. I also find that by using the center of Lexington Avenue as the dividing line, petitioners' residence clearly falls within the Walter Panas attendance zone.

Petitioners, nevertheless, argue that over the past 17 years, all of the high school age children residing in premises fronting on the westerly side of Lexington Avenue have attended Lakeland. However, the record fails to support this assertion. The record shows that over the years a number of students who have resided in premises fronting on the westerly side of Lexington Avenue have, in fact, attended Walter Panas. Respondent, however, acknowledges some administrative and/or clerical errors which resulted in some students attending a high school outside their attendance zone.

In addition, during the 1993-94 school year, three of the five high school students residing in premises fronting on the westerly side of Lexington Avenue attended Walter Panas. The other two students, including Kelly's sister, attended Lakeland pursuant to one of the exceptions in board policy no. 5117. Specifically, Kelly's sister, a special education student, was assigned to Lakeland for educational reasons. The other student had been granted permission to attend Lakeland by the former superintendent. Therefore, notwithstanding some administrative errors, it appears that respondent has assigned students to the attendance zone in which they reside unless an exception applies.

Petitioners, however, further argue that the former superintendent granted the other student permission to attend Lakeland for similar reasons. In their reply, petitioners allege for the first time that the student's mother told them that the student was allowed to attend Lakeland merely because her sister did. In this regard, petitioners attempt to use an unsigned and unsworn affidavit of the student's mother to prove their allegations. In an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (Appeal of Pickreign, 28 Ed Dept Rep 163; Appeal of DiMicelli, 28 id. 327; Appeal of Amoia, 28 id. 150). Although I find petitioners' allegations troubling, I find that the evidence submitted by petitioners is insufficient to establish that the circumstances surrounding the other student's request are identical to Kelly's.

Petitioners also claim that the daughter of a district teacher was permitted to attend Lakeland while she resided in the Walter Panas attendance zone. Respondent, however, maintains that the student resided with her father in the Lakeland zone. In support of their position, petitioners submitted a page from the high school yearbook which, they claim, shows that the student actually lived with her mother in the Walter Panas zone. I do not, however, find this evidence to be persuasive as to this student's residency. Therefore, I find that petitioners have failed to prove their allegations of bias.

It is clear that Kelly did not acquire any legal right to attend Lakeland by her mere participation on its sports teams. Apparently, Kelly was allowed to participate on Lakeland's teams as a result of an administrative error. In addition, that fact that Kelly's sister attends Lakeland does not require Kelly's assignment to Lakeland. Nothing in policy no. 5117 requires an exception to be made for siblings.

Finally, petitioners maintain that respondent should be estopped from changing its attendance zone policy as it applies to students residing on Lexington Avenue. Although respondents have admittedly made some administrative errors, and have granted exceptions in certain instances, it appears that their policy has not changed. The fact that respondent erroneously assigned some students in the past does not estop respondent from following its policy in the future (Appeal of Kluge, 31 Ed Dept Rep 107). It is well settled that equitable estoppel does not apply against a governmental subdivision except in limited circumstances not applicable here (Parkview Assocs. v. City of New York, et al., 71 NY2d 274; Hamptons Hospital & Medical Center, Inc. v. Moore, 52 NY2d 88).

I have reviewed petitioners' remaining claims and find them to be without merit.

In reviewing this appeal, I found that respondent admitted making several administrative errors in the assignment of students. It appears that some of these errors may have contributed to petitioners' confusion as to respondent's attendance zone policy. I therefore encourage respondent to make a reasonable effort to prevent such administrative mistakes from occurring in the future.