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Decision No. 13,837

Appeal of PATRICIA KERSHAW, on behalf of her daughter, JANETTE KERSHAW, from action of the Board of Education of the Rondout Valley School District regarding attendance zones.

Decision No. 13,837

(October 3, 1997)

Shaw & Perelson, LLP, attorneys for respondent, Margo May, Esq.,

of counsel

MILLS, Commissioner.--Petitioner appeals the determination of the Board of Education of the Rondout Valley Central School District ("respondent") that her daughter may not attend school in another attendance zone. The appeal must be dismissed.

Petitioner is the mother of a student, Janette, who is entering kindergarten in respondent's district in the 1997-98 school year. Petitioner is also the mother of two other students who have previously attended elementary school in respondent's district. In 1992, respondent altered the attendance zones for its schools. Although petitioner’s sons were initially transferred from the Marbletown Elementary School to the Rosendale Elementary School within respondent’s district, one of petitioner’s sons experienced difficulty with the transfer, and both children were permitted to return to the Marbletown Elementary School even though their residence fell within the attendance zone for the Rosendale Elementary School.

In February 1997, petitioner received a notice of school registration for Janette by both the Rosendale and Marbletown schools. Upon receipt of the registration forms, petitioner contacted the district and asked respondent's superintendent to allow Janette to attend the same elementary school as her brother (petitioner’s older son graduated to middle school). The superintendent informed her that the matter should be referred to respondent’s Transportation Committee.

In a letter dated March 5, 1997, the superintendent reiterated that he was unable to grant petitioner's request for an attendance zone variance and sent her request to respondent's Transportation Committee. On March 12, 1997, the committee reviewed petitioner’s request as well as the reasons why her sons were previously reinstated to an elementary school outside their attendance zone. The committee made a recommendation to respondent, which considered petitioner’s request at its meeting on March 26, 1997. However, respondent denied petitioner’s request. This appeal ensued. Petitioner subsequently requested interim relief pending a determination on the merits which was denied on September 3, 1997.

Petitioner alleges that her daughter’s attendance at an elementary school different from that of her brother is an extreme hardship and poses a threat to her daughter’s health and safety. Respondent contends that its decision to deny petitioner’s request for a variance from her attendance zone was not arbitrary, capricious or unreasonable. Respondent also contends that petitioner has failed to state a claim upon which relief can be granted since it has broad discretion in the management and administration of the district, including the assignment of students to school.

Education Law "1709(33) authorizes a board of education to manage and administer the affairs of a school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Board of Education, 27 NY2d 333, 318 NYS2d 129; Appeal of Damadeo, et al., 36 Ed Dept Rep 201; Appeal of Shaw, et al., 34 id. 521; Appeal of Parrish, 32 id. 261). 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; 256 NYS2d 178, aff’d 16 NY2d 619, 261 NYS2d 68, 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 petitioner has failed to meet that burden of proof.

In this case, petitioner seeks to have her daughter attend an elementary school outside her attendance zone. While respondent admits that it reinstated petitioner’s older son to that school after reorganization in 1993, it found no basis to grant a variance to petitioner’s daughter. Respondent’s Attendance Zone Policy #5157, adopted June 21, 1994, specifically addresses the issue of student siblings and states: "No new student siblings will be allowed to attend outside the assigned attendance zone beginning with the 1994-95 school year." While I am sympathetic to petitioner’s wishes to have her daughter attend the same school as her brother, there is no legal basis to grant the relief petitioner seeks (Appeal of Barbara D. and James D., 34 Ed Dept Rep 118). I conclude that respondent’s decision in this matter is not arbitrary, capricious nor contrary to sound educational policy and therefore, I will not disturb it.