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Decision No. 13,970

Appeal of D.D., on behalf of her son, A.H., from action of the Board of Education of the West Hempstead Union Free School District regarding attendance zones.


Decision No. 13,970



Guercio & Guercio, attorneys for respondent, Gregory J. 
Guercio, Esq., of counsel


MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the West Hempstead Union Free School District ("respondent") denying her request to permit her son, A.H., to attend its George Washington School rather than its Cornwell Avenue School. The appeal must be dismissed.

A.H. began attending the Cornwell Avenue School at the start of the 1995-96 school year, when he enrolled in the second grade. Since then, three incidents have occurred between him and another student, R.H., which give rise to this appeal.

The first incident occurred in June 1996, when A.H. suffered an injury during a confrontation with R.H. A witness to the incident reported that the confrontation had occurred accidentally.

Nothing else happened until June 1997, when A.H."s teacher reportedly informed petitioner that R.H. had kicked A.H. in the groin. According to petitioner, the teacher described R.H. as a violent student who had targeted A.H. Petitioner reported the incident to Superintendent Carol Eisenberg and requested that the boys be placed in separate homeroom classes during the following school year.

In order to ensure minimal contact between the boys, respondent enrolled both pupils in separate classes during the 1997-98 school year. However, both boys were enrolled in the same gym class. During the first semester of that year, A.H. exhibited behavioral problems and did not want to go to school. Petitioner alleges that he was afraid of confronting R.H. during gym. At petitioner"s request, respondent transferred A.H. to a third-grade gym class, while R.H. remained with the fourth-grade class.

 Then, on an unspecified day in early September 1997, R.H. allegedly confronted A.H. in the lunchroom and threatened to hurt him. Petitioner reported the incident to Principal Anthony Cali, who spoke to R.H. about his conduct. Petitioner also complained to respondent"s superintendent and requested that A.H. be transferred to the George Washington School. The superintendent denied the request and suggested that the parties attempt to mediate the problem. Petitioner rejected that suggestion.

Later that semester, the students rehearsed for the school play. According to petitioner, three teachers informed her that A.H."s behavior had been disruptive and uncharacteristic during rehearsals. A.H. explained that R.H. was also present at rehearsals and, in order to cope with his fear of R.H., he had blocked everything out during the rehearsals.

On November 12, 1997, petitioner commenced schooling A.H. at home. Four days later, she wrote to respondent and requested permission to transfer her son to the George Washington School. Petitioner also notified respondent that she intended to school A.H. at home if her request for a transfer was denied.

By letter dated November 19, 1997, the board informed petitioner that it had denied her request to change schools. Respondent reiterated its decision in a subsequent letter, dated November 25, 1997, and advised petitioner to avail herself of the mediation and counseling services it offered. The letter also informed petitioner that the school would continue to monitor and supervise the interaction and contact between the two boys. Thereafter, this appeal ensued. I denied petitioner"s request for interim relief on December 19, 1997.

Petitioner contends that respondent"s refusal to modify A.H."s attendance zone and permit him to change schools under the circumstances was arbitrary, capricious and inconsistent with its own policy directives. She alleges that her son"s attendance at the Cornwell Avenue School poses a serious threat to his health and safety and asks that I allow A.H. to attend the George Washington School based upon the "obvious and immediate danger to [his] physical and emotional well being at his assigned school".

Respondent contends that its decision to deny petitioner"s request was neither arbitrary, capricious nor unreasonable. Respondent maintains that petitioner has failed to state a claim upon which relief may be granted because respondent has broad discretion in the assignment of students to school. Finally, respondent alleges that petitioner unlawfully began schooling her child at home because she did not obtain the district"s approval before doing so.

There is no basis in the record for me to mandate A.H.'s transfer to respondent"s George Washington School. Respondent board has broad discretion to manage and administer the affairs of its district, including the assignment of pupils to schools therein (Education Law "1709[3],[33]; Matter of Older, et al. v Board of Educ., 27 NY2d 333; Application of Gielowski, 33 Ed Dept Rep 479; Appeal of Mulholland, 32 id. 384). I will not set aside a board"s determination in these matters unless I am convinced that the board"s action was arbitrary, capricious or contrary to sound educational policy (Application of Gielowski, supra; Appeal of Cullen, 32 Ed Dept Rep 179).

In this case, petitioner seeks to have her son attend an elementary school outside his attendance zone because the child fears the conduct of another student in the school he currently attends. Respondent"s Attendance Zone Policy #5117, adopted September 6, 1960, specifically addresses the issue of when an attendance zone may be modified, and states: "The Superintendent of Schools shall propose attendance zone changes to the Board of Education as the need arises, including the reasons for proposed changes." While I am sympathetic to petitioner"s wishes to have her son attend a different school under the circumstances, there is no legal basis to modify the attendance zone inasmuch as the record does not demonstrate a need which warrants such change.

In separate affidavits submitted in opposition to petitioner"s request, Myra Barr, A.H."s fourth grade teacher, Desiree Laudman, R.H."s fourth grade teacher, and Anthony Cali, the school principal, each attested that petitioner"s fears regarding the safety of her son are unfounded.  Ms. Barr opined, based upon her sixteen years of teaching experience, that A.H. is not in any danger at the school. Desiree Laudman described R.H. as a bully, who sometimes exhibits stubborn tendencies. However, in her opinion, he does not threaten the safety of the other students in the class. The students, while annoyed at R.H."s conduct, are not afraid of him. Ms. Laudman observed further that A.H. is not a target of R.H."s negative emotions, and that the events which petitioner described are common occurrences in an elementary school. Principal Cali agreed and added that the incidents are immediately controlled by the staff.

In light of these submissions, I conclude that respondent"s decision was sound and was neither arbitrary, capricious nor an abuse of discretion. Accordingly, I will not disturb it.