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Decision No. 13,258

Appeal of KATHRYN WELSH and MARSHA E. FROST from action of the Board of Education of the Vestal Central School District relating to attendance zones.

Decision No. 13,258

(September 14, 1994)

Sherwood & Sherwood, P.C., attorneys for respondent, Michael D. Sherwood, Esq., of counsel

SOBOL, Commissioner.--Petitioners appeal the adoption of a school district reorganization plan by the Board of Education of the Vestal Central School District ("respondent"). The appeal must be dismissed.

Neither party has presented a clear picture of the facts in this matter. However, it appears that for several years, respondent has been considering redistricting. During this process, one of respondent's primary concerns has been the fact that the Tioga Hills Elementary School has, over the years, maintained a significantly greater student population than the district's four other elementary schools. In response to that concern, respondent established a committee to study the issues surrounding redistricting. That committee consisted of parents, teachers and administrators. Two of the committee's charges were to "project the possibilities of altering the boundaries of the elementary school attendance areas for the District" and to "develop recommendations for such boundary alterations and make recommendations for implementation of any boundary changes and their impacts."

In May 1993, the committee reported its findings to respondent. In that report, the committee included a short-term recommendation that children living in the Castle Gardens area who attend the Tioga Hills school be moved to respondent's Clayton Avenue Elementary School. A mid-term recommendation of the committee was to move students from the Tioga Hills school to the Clayton Avenue school and eventually to respondent's Vestal Hills Elementary School.

Respondent reviewed the committee's report and recommendations. At its meeting on May 25, 1993, respondent voted to move the children living in the Castle Gardens area from the Tioga Hills school to the Clayton Avenue school in September 1993 and to move additional students from the Tioga Hills and Clayton Avenue schools to the Vestal Hills school in September 1994. The movement of Castle Gardens area students from the Tioga Hills school to the Clayton Avenue school took place in September 1993.

In this appeal, petitioners seem to challenge the proposed transfer in September 1994 of students from the Tioga Hills and Clayton Avenue schools to the Vestal Hills school. Respondent contends that it has broad discretion under Education Law '1709 in the assignment of students. It also contends that its actions provide a better educational environment for all students in the district and greater equity in the provision of services.

Education Law '1709(33) authorizes a board of education to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Appeal of Parrish, 32 Ed Dept Rep 261; Appeal of Cullen, 32 id. 179; Matter of Older, et al. v. Board of Education, 27 NY2d 333). A board of education has broad discretion in its assignment of pupils to schools (Appeal of Parrish, supra; Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert den 382 US 905). Accordingly, a board's decision to reorganize its schools will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older, supra; Appeal of Parrish, supra). Moreover, petitioner bears the burden of demonstrating that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of Sherwood, et al., 33 Ed Dept Rep 410; Appeal of McNerney, et al., 28 id. 250; Appeal of Malang, 26 id. 134). I find that petitioners have failed to meet that burden of proof.

First, petitioners contend that the transfer of students from the Tioga Hills and Clayton Avenue schools to the Vestal Hills school does not comply with the recommendation of the committee. However, the record indicates that respondent's action was recommended by the committee. In any event, while a board of education may seek the advice of an advisory group, such as the committee appointed by respondent, it is the board's responsibility to select an appropriate reorganization plan, and it is not precluded from considering any variation of a proposal recommended by an advisory committee (Appeal of Malang, supra; Matter of Bosco, et al., 19 Ed Dept Rep 557; Matter of Anderson, 17 id. 418).

Petitioners also assert that there is no need to further transfer students, because circumstances have changed since respondent voted on this matter in May 1993. Petitioners further argue that overcrowding at the Tioga Hills school is no longer an issue. However, figures supplied by respondent rebut that contention.

Petitioners also contend that the transfer to the Clayton Avenue and Vestal Hills schools will be stressful to the students and affect their academic performance and social adjustment. While I understand petitioners' concerns, they offer only conclusory statements that respondent's reconfiguration will be harmful to students. Because this claim is based on mere speculation, it must be dismissed (Appeal of Buchner and McNamara, 32 Ed Dept Rep 428).

As pointed out by respondent, its Tioga Hills school has the highest enrollment. It is served by one principal, one librarian, one nurse teacher, a part-time counselor and a part-time school psychologist. A decrease in the student population at the Tioga Hills school will enhance student access to its staff and services. Respondent's plan permits better use of existing facilities without increasing transportation costs or radically reconstructing its program (only 141 students from the total K-5 population of 2,035 are involved). Moveover, the inclusion of more students at the Vestal Hills school will apparently permit respondent to offer a greater variety of educational programs at the school than are now offered to the current smaller student populations. Based on the foregoing, I conclude that respondent's decision in this matter is not arbitrary, capricious or contrary to sound education policy. Accordingly, I will not disturb it.

I have reviewed petitioners' remaining contentions and find them without merit.