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Decision No. 14,009

Appeal of ANTHONY J. ALOISIO, et al., from action of the Board of Education of the Sachem Central School District regarding redistricting.

Decision No. 14,009

(September 4, 1998)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

MILLS, Commissioner.--Petitioner Anthony J. Aloisio and 144 other named petitioners, who are residents and/or parents of children attending elementary schools in the Sachem Central School District, appeal a May 1, 1996 decision by the Board of Education of the Sachem Central School District ("respondent") to approve a redistricting plan for the district’s elementary schools. The appeal must be dismissed.

Sachem Central School District is one of the largest suburban school districts in the State, and contains 12 elementary schools. As of September 1994, there were 7633 students enrolled in those schools.

Respondent's May 1996 redistricting plan evolved over several years. Because the sufficiency of respondent's review and determination is at issue in this appeal, it is necessary to describe this evolution in some detail.

At a board meeting on December 15, 1993, respondent discussed the disparity in enrollment among its elementary schools, and noted that there had not been a complete redistricting since the mid-1970s. Although there was no formal resolution or vote, respondent asked its superintendent to conduct a study and provide recommendations summarizing the positive and negative features of redistricting.

By memorandum dated September 27, 1994, the superintendent advised respondent that he would soon have room utilization charts for all the buildings, up-to-date enrollment statistics and projections for each facility, and examples of savings that could be anticipated by closing one elementary school. The superintendent recommended that, if respondent wished to pursue redistricting or closing a school, respondent should consult an experienced outside firm to consider the alternatives.

A redistricting committee was subsequently formed, consisting of the superintendent’s cabinet members, which issued a report dated March 3, 1995. To assess whether redistricting was necessary and/or whether it was possible to close a school, the committee collected data in three major areas: pupil enrollment (current and as projected for the next five years), room utilization at each school building (current, and future utilization based on population projections and the required instructional program), and housing trends. The report discussed various short-term and long-term alternatives and their potential impacts. Short-term solutions included more efficient utilization of rooms, use of a roving teacher, reassignment of students from overcrowded schools to the closest geographic neighbor school, and minimal redistricting for 1995-96. Long-range alternatives included restructuring by creating a K-5 elementary structure and closing a school.

The report also suggested seven options for further study, including obtaining the services of a consultant to examine redistricting and perform a cost saving analysis, and contained an update on a proposal to create a full day kindergarten rather than the district's 2" hour per day program. The report also recommended that community input be given serious consideration, since redistricting was an extremely sensitive issue. Although petitioners present the affidavits of two board members who deny having seen the March 3, 1995 report, the record before me supports respondent’s contention that the report was delivered to respondent together with a number of other items on or about March 3, 1995, although there is nothing in the record to indicate that this report was discussed at a public or executive session of the board.

In August 1995 respondent apparently adopted three major goals for 1995-96, although the record does not reveal how these goals were chosen or whether respondent formally voted on their adoption. The three goals were discussed in the September 1995 issue of respondent’s newsletter to district residents. Goal #3, entitled "elementary school boundaries," was to "[a]djust all elementary school boundaries so that there will be equitable student populations, instructional settings, and transportation routes for all elementary students well into the next century, commencing with the 1996-97 school year." The newsletter further advised that the district was experiencing overcrowding in several of its elementary schools and underutilization in others, and that elementary enrollment was projected to increase. The district, therefore, was devising a redistricting plan to change the boundaries that determine which schools students attend.

On September 18, 1995, in preparation for respondent’s work session on September 19, the superintendent forwarded to respondent a proposal from the Western Suffolk BOCES to prepare a long range planning and redistricting study for the district’s schools. BOCES’ proposed study would include objective analysis of demographic and enrollment trends, projection of future enrollment, educational space assessment, redistricting of elementary attendance zones, and transportation route reconfigurations for each of the district’s elementary schools for a ten-year period. The superintendent advised respondent that this study would take approximately six months, and that Goal #3 had the most pressing need for board discussion at the September 19th work session.

At the September work session, respondent raised the question of including analysis of a middle school option in the BOCES study. By memo dated October 6, 1995, the superintendent advised respondent that, due to the broad nature of additional considerations related to middle schools, he did not feel there was time to complete the necessary research to make quality decisions on middle school issues, and recommended that they redistrict with the existing K-6 structure. He stressed that respondent needed to finalize its direction at the October 11, 1995 work session, and that boundaries must be decided by March or April 1996 if they expected to have the work completed in time for the 1996-97 school year.

The BOCES proposal was discussed at respondent’s October 11, 1995 meeting. Although the content of respondent's discussion is not reflected in the minutes, the record indicates that, following a report on redistricting by the assistant superintendent, respondent discussed whether to change boundaries gradually or do a "clean cut," changing all the elementary school boundaries at once. The consensus was to effect a complete change, and respondent unanimously resolved to appoint the BOCES to provide redistricting services to the district. The minutes reflect that board members Belkin, Hall and Diaz (who provided affidavits or memos in support of the petition) were present, and voted in favor of the resolution.

A redistricting committee was formed in November 1995, consisting of district administrators and expert consultants, and met bimonthly from November to April 1996. The superintendent provided periodic memos updating respondent on the status of the BOCES redistricting study.

The record reflects that the committee was guided by various parameters for the redistricting, although no information is provided as to how the parameters were established or by whom. These parameters included maintaining current district class size guidelines, self-contained special education services in each setting, a minimum of five special program rooms (e.g., for art, music, resource-related services), elimination of the pre-first grade program, extension of the kindergarten day from 2" to 4 hours a day, reduction of the enrollment difference between schools, consideration of the impact of the elementary school redistricting on the junior high schools, consideration of safety hazards and neighborhood integrity, and travel time to elementary schools not exceeding 30 minutes. The committee also sought to draw boundaries for the most part along major roadways and to maintain the half-mile walk area at each school. Some, but not all, of these parameters were discussed in a memorandum to respondent dated November 30, 1995 from the superintendent, who noted that these parameters would be discussed at respondent’s December 5 and 19, 1995 meetings.

The record also reflects that the committee considered and rejected several proposals, including one based on efficient transportation because of its impact on student populations and instructional settings, and another based on optimizing efficient use of staff because of its encroachment on walk areas and potential transportation problems. No minutes of the committee’s meetings or memos memorializing discussions are included in the record in this appeal.

By memorandum dated January 12, 1996, the superintendent provided respondent with an update on the redistricting process, and requested a work session with respondent to prioritize how buildings and rooms would be utilized under a revised elementary boundary plan. On January 31, 1996, Paula Klingelhoefer, the lead consultant from BOCES, presented a report to respondent on the redistricting analysis including demographics, historical and projected enrollment, facility utilization and alternatives, although information about projected boundaries had not yet been developed.

By memorandum dated March 11, 1996, the superintendent advised respondent that a draft map had been prepared identifying preliminary boundary changes that would more equitably distribute the student population among the twelve elementary schools. The memo warned that the amount of student change per building varied from 40% to 11%, and that such changes "are not minor changes" (emphasis in the original). The superintendent further advised respondent that another committee had been created, involving parents, teachers, principals and District office staff, to address procedures for welcoming students into their new schools, and noted that this group’s assistance would be extremely important. Minutes of four March 1996 meetings of this committee were forwarded to respondent on April 4, 1996.

An article on Goal #3 and the redistricting plan was published in the March 1996 edition of respondent’s newsletter. Respondent briefly described the analysis to date, warned that the redistricting would "result in a shift of some students to other schools," and advised that a final decision on boundaries was expected by April 1996.

By memorandum dated March 29, 1996, the superintendent forwarded to respondent information regarding Ms. Klingelhoefer’s enrollment projections, the revised enrollment projections based on revised boundaries, the revised elementary boundaries for each elementary school, the existing elementary boundaries, and information about students moving from 7th to 8th grade. A separate memorandum by Nicholas Ulrich, respondent’s vice president, to respondent dated March 29, 1996 further noted that the redistricting plan would move approximately 2000 students on all levels.

In April 1996, the redistricting committee produced the final map reorganizing the twelve elementary schools and individual school maps, which were provided to respondent and subsequently mailed to the public towards the end of the month. Respondent met with the building principals and administration on April 11, 1996 to discuss the impact of redistricting. At this meeting, the superintendent distributed a description of the movement of students from school to school.

On April 12, 1996, the superintendent sent respondent a copy of a letter that had been mailed that day to all parents of students in grades K-7. This letter advised parents that a presentation was scheduled for May 1, 1996 following respondent’s budget hearing, which would outline the process used to develop the new boundaries and the activities planned to assist parents and students with the transition. The letter outlined the history of the redistricting plan, noted that all the elementary principals had reviewed the proposed boundaries prior to finalization so they could identify the impact of the new boundaries on neighborhoods, and further explained that significant population growth in the southern half of the district necessitated some boundary changes for all districts due to an unavoidable "domino effect." The superintendent subsequently advised respondent by memo dated April 19, 1996 that notices of new school assignments and other information would be mailed on April 22, 1996 by the home school principals, and discussed the welcoming activities that were planned.

On May 1, 1996, respondent conducted a public budget hearing and work session. Paula Klingelhoefer gave a public presentation about respondent’s goals and parameters, the demographics that were used in the BOCES study, and the recommended plan. Following the presentation, respondent passed a resolution adopting the redistricting plan, effective September 1, 1996. The vote was 6 to 1, with Mr. Belkin dissenting. Board member Hall was not present, and board member Diaz voted in favor of the redistricting plan. Following the vote, respondent heard comments and concerns from the audience about the redistricting plan.

The superintendent sent several memos updating respondent in the weeks following the plan's approval. In a May 17, 1996 memo, the superintendent advised respondent that various individual cases would be addressed due to special student needs, but that there was no need to change any of the boundaries or basic guidelines that respondent had approved on May 1, 1996.

This appeal ensued. Petitioners appeal individually and seek class status on behalf of all parents and students affected by respondent’s May 1, 1996 decision. Petitioners’ request for interim relief pending a determination on the merits of this appeal was denied on June 28, 1996.

Petitioners contend that the superintendent acted without authority to implement a redistricting program without any public vote of respondent approving the redistricting or authorizing such actions. Petitioners assert that, two weeks after the superintendent had already implemented the redistricting plan, respondent improperly and illegally voted to ratify the superintendent’s actions retroactively. Petitioners complain that respondent never considered a single alternative to redistricting, that the administration never presented the board with a complete description of the redistricting plan or the extent of student reassignment that would result, and that respondent never permitted any community input. Petitioners further claim that respondent's redistricting decision is arbitrary, capricious and irrational, because it created sharp divisions in traditional communities and violated recognized educational goals. Petitioners also contend that respondent violated the Open Meetings Law in its deliberations on the redistricting plan, and violated the Freedom of Information Law in its failure to provide certain documents at petitioners’ request.

Respondent denies petitioners’ claims, and asserts that the redistricting plan was the rational and reasoned culmination of a process designed to achieve equity in enrollment and educational opportunity in all its elementary schools. As affirmative defenses, respondent alleges that the petition fails to state a claim upon which relief may be granted, and that the Commissioner of Education lacks jurisdiction to review petitioners’ alleged violations of the Freedom of Information Law and Open Meetings Law.

Before reaching the merits, I will address the parties’ procedural arguments. Petitioners seek permission to maintain this appeal as a class action, on behalf of all parents and students affected by respondent's action. An appeal may only be maintained on behalf of a class "where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class" (8 NYCRR "275.2; Appeal of Parent-Student Coalition of Fallsburg, 37 Ed Dept Rep 522; Appeal of Czerepak, 31 id. 448). Petitioners must set forth the number of individuals they seek to represent (Appeal of Sperl, 33 Ed Dept Rep 388), and must show that all questions of law and fact would be common to all members of the class (Appeal of Donnelly, 33 Ed Dept Rep 362).

In the instant appeal, no specific number of prospective members of the class is provided, although petitioners refer to 1200 parents who signed petitions to respondent in opposition to the redistricting plan. It is also unclear whether all the potential class members have the same interests or claims. Petitioners purport to bring the appeal on behalf of all parents and students "affected" by the redistricting, but this is a vague description that may include many different sets of concerns and claims. Petitioners have further failed to show that all members of the purported class felt aggrieved by the redistricting decision and would have joined in the class, thus not showing that the issues of law and fact are common to all members of the class (Appeal of Donnelly, supra). In any event, there is no need to certify a class in this appeal. A determination even as to a single petitioner will resolve the issue for all potential petitioners, and there is no need for individual relief for each person allegedly aggrieved. Class status is, therefore, denied.

Respondent correctly states that I lack jurisdiction to review alleged violations of the Freedom of Information Law (Appeal of Hendrick, 37 Ed Dept Rep 188; Appeal of Lindauer and McKee, 34 id. 596) and the Open Meetings Law (Appeal of Van Zile and Crowell, 37 Ed Dept Rep 213). The proper venue for addressing such violations is the Supreme Court of the State of New York, not a "310 appeal to the Commissioner of Education. In fact, such a challenge was filed in Suffolk County Supreme Court, alleging violations of the Open Meetings Law arising out of respondent’s May 1, 1996 approval of the redistricting plan, and that challenge was dismissed (Valet v. Sachem Central School District, [Suffolk Co Sup Ct 1996] N.Y. Law Journal, August 27, 1996, at p. 28 col. 5, 6).

I reject respondent’s contention that the petition fails to state a claim. Petitioners allege that respondent’s decision was arbitrary and capricious, and made in violation of applicable law and procedures. If sustained, such allegations would entitle petitioners to an order annulling respondent’s determination. I, therefore, conclude that the petition states a claim upon which relief could be granted, and I will review the merits of the appeal.

Pursuant to Education Law "1709(3) and (33), a board of education has the authority and responsibility 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 [1971]; Appeal of Damadeo, et al., 36 Ed Dept Rep 201; Barbara D. and James D., 34 id. 118; Appeal of Parrish, et al., 32 id. 261). A board of education has broad discretion in its assignment of pupils to schools (Matter of Addabbo v. Donovan, 22 AD2d 383 [2d Dept], aff’d, 16 NY2d 619, cert den 382 US 905 [1965]; Appeal of Parrish, et al., supra). 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 Damadeo, 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 that petitioners have failed to meet that burden of proof as to the redistricting plan in general.

Petitioners' first substantive claim is that the superintendent acted without authority by implementing the redistricting plan in April 1996 without any vote by respondent to authorize his actions. Although petitioners portray a superintendent acting totally on his own without any board oversight or authorization, the record indicates that the superintendent was proceeding with the knowledge and consent of respondent board throughout the process. Although petitioners are correct that virtually every step to effect the redistricting, including notification to students and parents, had been completed prior to respondent’s actual final approval of the plan on May 1, 1996, the record also reflects that respondent was advised of, and formally or informally approved of, each step of the redistricting process as it occurred. The chronology set forth above supports respondent’s contention that it was well informed of all actions taken by the superintendent and redistricting committees with respect to the redistricting plan, and either knowledgeably acquiesced in such actions or affirmatively approved of them by vote.

Petitioners’ second substantive claim is that respondent failed to consider any alternatives, and that respondent’s May 1, 1996 approval of the redistricting plan was an improper and illegal after-the-fact ratification of the superintendent’s actions. The record, however, reflects some consideration of alternatives. In any event, the inquiry in this appeal is whether the approved plan is rational, not whether the problem could have been better addressed by alternatives (Appeal of Capozzoli, 31 Ed Dept Rep 162). Furthermore, although respondent may have been lax in formally approving the redistricting plan prior to the superintendent’s steps to implement the plan, respondent’s subsequent approval eliminates any challenge to the superintendent’s prior actions (Hoke v. Shanker, 108 AD2d 1065, 1066 [3d Dept 1985]; Town of Moriah v. Cole-Layer-Trumble Company, 200 AD2d 879, 881 [3d Dept 1994]).

Petitioners further complain that respondent failed to involve the community in the consideration of redistricting and alternatives, and failed to obtain and consider community input, but this claim is also insufficient to overturn the determination. Although the record indicates that there was some community involvement prior to the May 1996 approval (a committee of parents, teachers, principals and district office staff was formed to address issues involved in welcoming students to their new schools), the record is devoid of any indication that community input on redistricting or alternatives was actually considered by respondent. Nevertheless, while community input might have been desirable and prudent in view of the extensive redistricting contemplated, there is no requirement in law that a board conduct a hearing upon any particular subject or grant to any person the right to be heard (Appeal of Capozzoli, 31 Ed Dept Rep 162; Matter of Kramer, 72 St Dept Rep 114). Moreover, a board may limit public discussion on an issue until after action has been taken on that issue (Appeal of Capozzoli, supra; Matter of Thomas, et al., 10 Ed Dept Rep 108). Failure to consider community input or give the public an opportunity to be heard prior to adopting the redistricting plan is thus not a ground to invalidate the decision.

Petitioners additionally contend that the redistricting plan is arbitrary, capricious and irrational. However, based upon the record before me, I find that the overall plan has a rational basis and is not arbitrary and capricious. Although petitioners repeatedly stress that the problem of overcrowding was limited only to a couple of schools and the redistricting plan was thus irrationally extensive, respondent actually considered a number of factors in addition to sheer enrollment numbers. The redistricting plan achieved several legitimate objectives identified by respondent and its consultant, such as reducing overcrowding based on 10-year projections and ensuring that no school would be over 100% capacity over the next decade; lowering the enrollment spread between schools, from a projected 391 as of the year 2000 to 149; improving the utilization of space in each building, which varied widely between schools, ensuring sufficient space for special education and other special purpose rooms; minimizing any significant increases in transportation times or cost; assigning students, including disabled students, to neighborhood or contiguous schools; eliminating skip zones; and expanding the half-day kindergarten program at all schools.

The record also reflects that respondent was well aware of the extent of the redistricting proposed by its consultant. As early as March 29, 1996, respondent’s own vice president advised the board that approximately 2000 students would be moved as a result of the redistricting plan proposed by the BOCES. Although the record does not indicate whether respondent had received the printed Long Range Planning Study dated May 1996 prior to its May 1, 1996 vote, the record reflects that respondent was generally aware of the redistricting parameters, goals, extent of student movement and rationales for the recommendation at the time of its vote, and had received portions of the report’s contents.

Petitioners point to redistricting effects such as a "flip-flop" of students between Wenonah and Cayuga schools, and extension of the redistricting beyond schools which were projected to be overcrowded, as evidence of the alleged irrationality of the redistricting plan. However, respondent has provided a reasonable explanation for the exchange of students between Wenonah and Cayuga schools, i.e., that the transfers were necessitated by transportation concerns and major roadway configurations. The record also supports respondent’s determination to expand the redistricting to all twelve elementary schools due to the factors and parameters discussed above.

In addition to concluding that the overall plan is rational, I also find that petitioners do not establish a sufficient basis to overturn the attendance boundary decision concerning the Jenna Court and Scopolitis Street area. This triangle-shaped area was transferred out of the Tamarac attendance zone, which borders the area on its eastern and southern boundaries, into the Nokomis zone that extends to the north and west of the Jenna Court area beyond train tracks and a four-lane highway. Petitioners assert that the redistricting maps do not appear to take into account the existence of train tracks to the north of the entire area which, in addition to the four-lane highway that forms the western boundary of the area, isolate the area from the rest of the Nokomis attendance zone. Petitioners additionally contend that the redistricting creates safety concerns, removes the area from its traditional community that is centered around the Tamarac school, and results in the second change of schools in four years for the children of the area.

Respondent’s response to the alleged arbitrariness of the reassignment to the Nokomis attendance zone is that Nokomis is located directly north of the area, that the 2 streets are located north of a major roadway, Furrows Road, and that Tamarac is heavily populated and experiencing new development while Nokomis needs additional students because students are being taken out of Nokomis to fill the Hiawatha attendance zone, to the west of Nokomis. Although this explanation does not address the issue of the railroad tracks separating the Jenna Court area from the rest of the Nokomis district, it appears from the maps in the record that the railroad is a common problem facing a number of the neighboring attendance zones, such as Chippewa and Hiawatha.

Reorganizing a large district, which contains many impediments such as multi-lane highways and railroads, is a very difficult job at best, and requires many difficult choices. Respondent has provided a plausible explanation for its choice of attendance boundaries for the Jenna Court area, this boundary was chosen after working with expert consultants, and the redistricting plan as a whole is not arbitrary and capricious. Petitioners' claim of safety hazards involve problems common to most or all of the attendance zones in respondent's district, and the record contains insufficient facts to establish that the reorganization created safety hazards that are unreasonably dangerous in comparison to the area's previous attendance designation.

In sum, there is no legal basis to grant the relief petitioners seek and overturn respondent's approval of the redistricting plan (Appeal of Kershaw, 37 Ed Dept Rep 186; Appeal of Barbara D. and James D., supra). Based on the record before me, I conclude that respondent's decision to implement the redistricting plan was not arbitrary and capricious, irrational or contrary to sound educational policy.

Although I dismiss this appeal, I am compelled to comment on respondent's procedures in adopting this redistricting plan. Respondent’s failure to memorialize much of its professed discussion of redistricting alternatives and impacts in its minutes, apparent failure to formalize the adoption of its major policy goals for 1995-96 by a vote at a public session of the board prior to dissemination in its newsletter, permitting implementation of a redistricting plan to begin prior to a formal vote adopting the plan, and failure to invite and encourage public participation, undoubtedly contributed to petitioners’ feelings of frustration and anger. While respondent’s actions were sufficient to pass legal muster, respondent should be more circumspect in its proceedings in the future to avoid disputes of the kind that gave rise to this appeal.