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Decision No. 13,712

Appeal of MANUEL and BONNIE YTUARTE, on behalf of SAMUEL YTUARTE, and JOHN and CINTHIA THORP, on behalf of KEVIN THORP, from action of the Board of Education of the Oceanside Union Free School District regarding attendance zones.

Decision No. 13,712

(December 10, 1996)

Ehrlich, Frazer & Feldman, attorneys for respondent, James H. Pyun, Esq., of counsel

MILLS, Commissioner.--Petitioners challenge the reassignment of their children due to respondent's change in its elementary school attendance zones. The appeal must be dismissed.

Samuel Ytuarte and Kevin Thorp, ages 10 and 11, respectively, attended School #5 in respondent's school district for five years. On November 17, 1995, respondent adopted a restructuring plan for the purpose of opening a new elementary school. On December 18, 1995, respondent announced additional adjustments to the new attendance zone boundaries, including the reassignment of an area from School #5 to School #2, affecting approximately 15 children including Samuel and Kevin. This appeal ensued. Petitioner's request for interim relief pending a determination on the merits was denied on August 23, 1996.

Petitioners allege that respondent has been unethical, deceitful, and arrogant with the community and that its acts are arbitrary and capricious. They contend that respondent willfully misrepresented the restructuring plan to the public and made these final boundary adjustments in Executive Committee Session, without maps or a public explanation. They argue that the reassignment of children from School #5 is unnecessary and that respondent is putting the affected children at risk physically, emotionally, and educationally. In particular, petitioners argue that the adjustment presents a safety hazard because the rezoned children must cross heavy traffic at Lincoln Avenue and that the Village of Rockville Centre has refused to provide a crossing guard.

Petitioners request that Samuel Ytuarte be entitled to attend School #5 for the 1996-97 and 1997-98 school years and that the rezoned area be returned to School #5. In the alternative, petitioners request transportation for Samuel to School #2. Petitioners also seek to have respondent instructed as to the appropriate functions, ethics, and etiquette of board members.

Respondent contends that it began studying elementary school restructuring in the 1993-94 school year due to demographic changes in the district. It argues that it adopted the concept of a restructuring plan in November 1995, but that it directed the Superintendent to recommend "equitable adjustment of the zones" to provide for a more even distribution of English as a Second Language ("ESL") students among the district's schools. Respondent maintains that at its December 18, 1995 meeting, it discussed the additional boundary changes, presented maps, answered questions from the public, and approved the adjustments.

Respondent contends that petitioners' appeal is untimely and that such rezoning decisions are within the board's discretion, as long as they are not arbitrary, capricious, or educationally unsound. Respondent argues that the boundary changes in question are rational because the area is contiguous to the former School #2 zone, is fairly equidistant between School #2 and School #5, and is adjacent to another area of homes, also on the north side of Lincoln Avenue, which were a part of the former School #2 zone. Respondent also contends that the final boundary adjustments provide for a better balance of enrollment and ESL students. Respondent contends that petitioners have failed to demonstrate how Samuel will be harmed or educationally disadvantaged by the change in placement and that Samuel is not entitled to transportation to School #2.

As a preliminary matter, I find that this appeal must be dismissed as to Kevin Thorp because it is moot. The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Priestley, 35 Ed Dept Rep 293; Appeal of Nash, 35 id. 203). The record indicates that Kevin has been withdrawn from respondent's school district, and will thereby not be affected by the outcome of this appeal.

The appeal must also be dismissed as untimely. Section 275.16 of the Commissioner's regulations requires that an appeal be initiated within 30 days of the decision sought to be reviewed except for good cause shown. The time to commence an appeal runs from the date of the decision under review (Appeal of Goodman, 35 Ed Dept Rep 93; Appeal of Keen, 32 id. 299). Respondent approved the boundary changes in question on December 18, 1995, and this appeal was commenced on August 12, 1996, nearly eight months after the decision. Petitioners contend that they and other community members asked respondent to reconsider its decision to move children from School #5 to School #2 in on several occasions between January and July 1996. However, requests for reconsideration of the challenged decision do not extend the 30-day appeal period (Appeal of Goodman, supra; Appeal of Regan, 34 Ed Dept Rep 72).

If the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Pupil placement is a matter of educational policy, which lies within the professional judgment and discretion of those charged with the administration of the public schools (Matter of Britt v. Rogers, 108 AD2d 855, citing, Hoffman v. Board of Educ., 49 NY2d 121, and Matter of Board of Educ. v. Board of Educ., 80 AD2d 564; Appeal of Sponcy, 33 Ed Dept Rep 126). A district's action in revising attendance zones must be upheld if a rational basis for the determination is demonstrated (Older v. Board of Educ., Mamaroneck Union Free School District, 27 NY2d 333; DeVito v. Nyquist, 56 AD2d 159, aff'd, 43 NY2d 681; Appeal of Aviles, 30 Ed Dept Rep 93). Such basis may be to relieve overcrowding or to reduce racial or ethnic imbalances (Appeal of Bennardo, 33 Ed Dept Rep 178; Appeal of Aviles, supra). Accordingly, absent a showing that respondent's policy is arbitrary, capricious, or an abuse of discretion, such determination will not be disturbed (Matter of Britt v. Rogers, supra; Appeal of Sherwood, 33 Ed Dept Rep 410; Appeal of Kornstein, 31 id. 68). In this case, the respondents reasons for making boundary adjustments to the restructuring plan (i.e., to better balance enrollments and the number of ESL students) and its reasons for rezoning this particular area (i.e., its physical location with respect to the two school zones) are rational.

Furthermore, petitioners have not established that they are entitled to transportation services. Petitioners concede that they live .8 miles from School #2 and respondent's transportation policy does not provide for services at that distance.

I understand petitioners' concerns for the disruption in their sons' education due to reassignment to a different school and for their sons' physical safety. However, in an appeal to the Commissioner, the petitioner has the burden of establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of Nash, supra; Appeal of Haff, 35 id. 130) and the burden of demonstrating a clear legal right to the relief requested (Appeal of Nash, supra; Appeal of DiMicelli, 28 Ed Dept Rep 327; Appeal of Amoia, 28 id. 150). While it is clear that petitioners disagree with respondent over the desirability of the boundary adjustment in question, they have failed to demonstrate that they have a legal right to the relief they request.