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Decision No. 13,295

Appeal of CATHERINE GILLESPIE and KATHLEEN L. KARAFONDA from action of the Board of Education of the City School District of the City of Rochester regarding establishment of a day care center.

Decision No. 13,295

(December 1, 1994)

Chamberlain, D'Amanda, Oppenheimer & Greenfield, Esqs., attorneys for petitioners, Michael T. Harren, Esq., of counsel

Adam D. Kaufman, Esq., attorney for respondent, Donald T. Schmitt, Esq., of counsel

SOBOL, Commissioner.--Petitioners challenge the decision of the Board of Education of the City School District of the City of Rochester ("respondent") to establish a day care center at its Joseph C. Wilson Magnet High School ("Wilson"). The appeal must be dismissed.

On or about December 19, 1985, respondent directed its superintendent to establish day care centers in all secondary schools for children of secondary school students. According to respondent, it took this action "to provide integrated services to the at-risk teen mother and child in order to decrease drop out rates, to increase attendance, and to decrease risks of child abuse, neglect and health problems." Subsequently, respondent established such day care centers at almost all of its secondary schools.

In or about November 1992, respondent started planning to establish a day care center at the Wilson school. Information about the proposed center was shared with the Wilson school-based planning team in January and February 1993. In March 1993, district staff addressed questions raised by that team. Respondent also held meetings on May 27 and June 10, 1993 with parents of students attending the Wilson school to discuss the proposed center. On October 4, 1993, respondent voted to reject a request by the Wilson school-based planning team that a day care center not be established at the Wilson school. On October 7, 1993, respondent voted to contract with an architect for architectural and engineering services in connection with renovation work needed in establishing the Wilson day care center. On May 19, 1994, respondent awarded six contracts for the completion of the center. Work on the center began on or about June 23, 1994.

Petitioner Gillespie is a member of the Wilson school-based planning team and petitioner Karafonda is the parent of a student enrolled at the Wilson school. Petitioners maintain that respondent's decision in this matter must be overturned.

The authority of a board of education to establish a day care center for children of students is specifically set forth in Education Law '414(1)(i). Petitioners maintain, however, that the day care center should not be established at the Wilson school because there is insufficient funding for the center and insufficient space in the building. Petitioners further contend that a more appropriate setting for a day care center exists off-site at an existing day care center near the Wilson school.

The record, however, indicates that housing the center at the Wilson school will not diminish space available for classes. In addition, the center is being funded by two grants received by respondent. Moreover, the alternative off-site day care center espoused by petitioners has been closed because of its inability to comply with pertinent building codes.

Petitioners also argue that there is no need for the day care center. Again, petitioners' assertions are contradicted by the record before me. As of July 5, 1994, a number of students had expressed a desire to use the services of the proposed day care center.

Petitioners also contend that respondent may not open the center because respondent violated 8 NYCRR 100.11 when it voted to establish the center in the face of opposition from the Wilson school-based planning team. That contention is rejected. Section 100.11 of the Commissioner's regulations provides that a board of education must consult certain individuals when developing a plan for school-based planning and shared decisionmaking. Nothing in that section mandates that a board of education obtain the approval of a school-based planning team before implementing a decision. In addition, the fact that a number of students and faculty members oppose the opening of the center is not a basis for the Commissioner of Education to overturn respondent's decision on this matter.

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