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Decision No. 13,786

Appeal of THOMAS M. and BELINDA A. GANDOLFO, on behalf of their daughter, Nicole, from action of the Board of Education of the North Merrick Union Free School District relating to attendance zones.

Appeal of WALTER E. and RITA A. COVENY, on behalf of their daughter, Michelle, from action of the Board of Education of the North Merrick Union Free School District relating to attendance zones.

Decision No. 13,786

(June 25, 1997)

Terence E. Smolev, Esq., attorney for respondent

MILLS, Commissioner.--In two separate appeals, petitioners challenge the reassignment of their children due to respondent's change in its elementary school attendance zones. Since each appeal arises from the same set of facts and seeks similar relief, I am consolidating them for decision. The appeals must be dismissed.

On February 28, 1996, petitioners registered their respective children, Nicole Gandolfo and Michelle Coveny, for kindergarten at the Camp Avenue School in respondent's school district. On April 16, 1996, respondent modified its attendance zones to require incoming kindergartners without siblings currently enrolled in the Camp Avenue School who reside in the southwestern corner of the district to attend the Harold Fayette School (hereinafter "Fayette School") rather than the Camp Avenue School. Since the Fayette School is two miles from petitioners' residences, respondent informed petitioners that their children would be entitled to busing to that school. The district's superintendent, Estelle Kamler, informed petitioners of respondent's decision by phone on April 18, 1996 and confirmed the same by writing dated April 26, 1996.

Petitioners allege that respondent's decision is arbitrary, capricious and irrational in that respondent elected to temporarily revise the boundaries of two attendance zones by designating only four blocks of the southwestern corner of the district and the seven kindergartners that reside there for attendance at an elementary school two miles away in the northeastern corner of the district for the school year beginning September 1996.

Petitioners contend that the Camp Avenue School is the closest elementary school in the district to their residences and that the Fayette School is the elementary school in the district furthest from their homes. In addition, the Old Mill Road Elementary School is located between the two schools. Petitioners allege that there are no children presently enrolled in regular classes at Fayette School from Willis Avenue or any other contiguous blocks and that only portions of the southwestern corner of the district were targeted by respondent. Petitioners also maintain that as of the date of respondent's decision, kindergarten classes at Camp Avenue School were not overcrowded, and were not projected to be overcrowded. Petitioners maintain that most of the residential blocks in the Camp Avenue School attendance zone are closer to the Fayette School than are the four targeted blocks, and that the entirety of the attendance zone of the Old Mill School is closer to the Fayette School than any of the blocks carved out by respondent from the Camp Avenue School attendance zone. Petitioners contend that respondent selected Willis, Bushwick, Frederick and Carroll Avenues as the blocks from which kindergartners without siblings would attend the Fayette School in the school year commencing September 1996 based on the greater distance from the Fayette School and the eligibility of those children for busing. Finally, petitioners maintain that respondent did not give any notice to residents of the district that it intended to partially rezone the district or otherwise remove blocks from the southwestern corner of the district and transplant them into the attendance zone of the Fayette School.

Respondent contends that it has been carefully and consistently monitoring enrollment trends in the three elementary schools and that as a result of concerns about the growth in attendance at the Camp Avenue School, respondent employed a consultant to conduct a demographic and facilities study of the district in February of 1995. Respondent further contends that at the June 13, 1995 board meeting, the demographic study was presented for public discussion. The projections over the next five years showed Camp Avenue receiving more children, followed by Old Mill Road. In addition, an analysis of building capacity showed that all the buildings would have ample space except for Camp Avenue. In September 1995, respondent sought members for an advisory committee to study the use of district facilities to consider alternatives to alleviate the projected overcrowding at the Camp Avenue School.

Respondent alleges that between October 1995 and February 1996, the facilities advisory committee met on numerous occasions and their report was presented to the board and the public at the board meeting on February 13, 1996. The report considered various options including the rearrangement of space, expansion of buildings, addition of a second story to the Camp Avenue School, installation of modules, a kindergarten center, and boundary modifications. In December 1995, Superintendent Kamler met with the Superintendent of the Bellmore/Merrick Central High School District to explore respondent's possible usage of a portion of the Brookside building within that school district. In addition, respondent performed a cost analysis of transporting all the sixth graders and/or kindergarten students to the Brookside building, or Fayette for either a kindergarten or sixth grade center.

In January 1996, respondent considered the creation of a "child safety zone" as part of a possible boundary and attendance zone modification.

In April 1996, respondent reported that kindergarten size was as follows: Camp Avenue - 65, Fayette - 33, and Old Mill Road - 62. Respondent maintains that based on the increasing enrollment at Camp Avenue and the past history of movement of southwest corner students to Fayette, respondent determined to modify its attendance zones to require those students to attend the Fayette School instead of the Camp Avenue School.

As a preliminary matter, I find that these appeals must be dismissed because they are 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 records of these appeals indicate that in a meeting of respondent board on September 10, 1996, respondent voted to allow parents of the seven children affected by the decision under review to opt to have their children attend a kindergarten class at Camp Avenue School instead of a kindergarten class at Fayette. The record indicates that both children are currently attending the Camp Avenue School and will thereby not be affected by the outcome of this appeal.

If these appeals were not dismissed on procedural grounds, they 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, 485 NYS2d 358, citing Hoffman v. Bd. of Ed., 49 NY2d 121, 424 NYS2d 376; Appeal of Sponcy, 33 Ed Dept Rep 126). A district's decision in revising an attendance zone must be upheld if a rational basis for the determination is demonstrated (Older, et al. v. Bd. of Ed., 27 NY2d 333, 318 NYS2d 129; Appeal of Aviles, 30 Ed Dept Rep 93). Moreover, petitioners bear 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). I find that petitioners have failed to meet that burden of proof.

In this case, respondent's reasons for making adjustments to attendance zones, the increasing enrollment at the Camp Avenue School and the projected overcrowding at the Camp Avenue School, provide a rational basis for respondent's decision. In addition, respondent has demonstrated that it undertook a careful and thorough survey of various alternatives to alleviate the unequal enrollment pattern on a short term and long term basis and that based on the demographic and facilities studies, it is continuing to monitor enrollment and consider long term changes to the assignment of its students.

While it is clear that petitioners disagree with respondent over the desirability of making a partial change in an attendance zone, they have failed to demonstrate that they have a legal right to the relief they request.

Because I am dismissing both appeals as moot, I will not address respondent's other procedural defenses.