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Decision No. 14,239

Appeal of LORRAINE and DANIEL C. FRANCHESE, on behalf of DANIEL S. FRANCHESE, from action of the Board of Education of the Hicksville Union Free School District regarding attendance zones.

Decision No. 14,239

(November 1, 1999)

Ted M. Rosen, Esq., attorney for petitioners

Guercio & Guercio, attorneys for respondent, Gary L. Steffanetta and John P. Sheahan, Esqs., of counsel

MILLS, Commissioner.--Petitioners appeal the decision of the Board of Education of the Hicksville Union Free School District ("respondent") to redistrict its elementary schools. The appeal must be dismissed.

In November 1997 respondent's superintendent, Dr. Edward J. Finn, submitted a report to respondent regarding district enrollment and projections of overcrowding at its Woodland Avenue and Lee Avenue elementary schools. Respondent subsequently appointed a facilities utilization committee, which included staff and community members, to study options for solving the overcrowding problem. The committee met publicly on a number of occasions, held an open hearing on February 12, 1998 and issued a facilities utilization report on February 24, 1998. In addition, respondent hired a consultant to provide additional input concerning various options. The consultant issued a redistricting study on March 7, 1998.

At its March 16, 1998 meeting, respondent selected Plan 3 from the various options described in the consultant's redistricting study. Plan 3 included the reopening of respondent's East Street Elementary School, which had been previously leased to a private school. Likewise, Plan 3 anticipated the redistribution of students according to a redistricting plan to alleviate overcrowding conditions in the Woodland Avenue and Lee Avenue elementary schools. Respondent asked Dr. Finn and the consultant to review and revise Plan 3 according to certain parameters set by respondent. The consultant generated three new attendance zone proposals ("Plans 3.1, 3.2 and 3.3"). Dr. Finn, concerned that too many students were still being shifted, directed the consultant to develop a new proposal ("Plan 3.4"), to reduce that number. Thereafter, at respondent's April 7, 1998 meeting, Plans 3.1, 3.2, 3.3, and 3.4 were presented. Several modifications to Plan 3.4 were suggested by respondent member Nancy Callari to further reduce disruption and better utilize space. Respondent directed its administration to redraw the attendance zones based on those suggestions and to present a new plan at the April 21, 1998 board meeting. The new proposal ("Plan 3.5") was presented and adopted at that meeting. Under Plan 3.5, students residing in the district's Tip Top Lane area, including petitioners' son, would be assigned to respondent's Lee Avenue Elementary School ("Lee Avenue"). Prior to the redistricting, these students attended respondent's Fork Lane Elementary School ("Fork Lane"). At board meetings in May and June 1998, there was some discussion regarding the possibility of a "grandfathering" modification to the plan that would allow the Tip Top Lane area students to complete their elementary education at Fork Lane, but no further modifications to the plan were made. This appeal ensued. Petitioners' request for interim relief was denied on August 17, 1998.

Petitioners contend that respondent violated its own policies and procedures by adopting Plan 3.5 without prior public notice. Petitioners allege that the other redistricting plans were rejected solely because of parent opposition and that parents of Tip Top Lane students did not have the opportunity to voice their opposition because of the lack of adequate notice before the adoption of Plan 3.5. Petitioner further contends that respondent's redistricting decision is arbitrary, capricious, and contrary to sound educational policy because it drastically impacts their son and because Fork Lane does not have a problem with overcrowding.

Respondent contends that the petition must be dismissed as untimely and maintains that its decision was not arbitrary or capricious.

An appeal to the Commissioner of Education pursuant to Education Law "310 must be commenced within 30 days of the action complained of, unless excused by the Commissioner for good cause shown (8 NYCRR" 275.16). Petitioners commenced this appeal on July 28, 1998 and argue that it is timely because they contend respondent's final decision was not made until its June 29, 1998 meeting. Respondent argues that its final action on redistricting was taken on April 21, 1998. Respondent further argues that the discussion of "grandfathering" that occurred at the June 29, 1998 meeting cannot be appealed because it was only a discussion item and the board did not vote on it. However, the record indicates that after petitioners voiced opposition to Plan 3.5 at respondent's May 19, 1998 meeting, respondent directed Dr. Finn to draft a report on the impact of the plan. Further, at respondent's June 17, 1998 meeting, a motion was made to amend the attendance zones to allow the Tip Top Lane students to continue at Fork Lane. The motion was withdrawn, but the topic again appeared on the agenda for the June 29th meeting. In light of the fact that the original redistricting (Plan 3) underwent several modifications after it was adopted and that members of respondent continued to raise the possibility of changes to the plan, it was not unreasonable for petitioners to believe that further modifications were possible. Respondent did discuss, and could have voted on, the "grandfathering" plan at its June 29th meeting. Under these circumstances, I will not dismiss the appeal as untimely.

However, there are documents in the record before me that I will not consider. Another procedural issue must be addressed. The only evidence petitioners included with their petition was a district map of Plan 3.5. They submitted two exhibits with their reply, a copy of the policy they contend respondent violated and a copy of a May 22, 1998 newspaper article. The purpose of a reply is to respond to affirmative defenses or new material contained in an answer (8 NYCRR ""275.3 and 275.14; Appeal of Lombardo, 38 Ed Dept Rep 680, Decision No. 14,116). A reply is not meant to buttress allegations in a petition or add belatedly assertions that should have been in the petition (Appeal of Lombardo, supra; Appeal of John W. and Lorraine W., 37 Ed Dept Rep 713, Decision No. 13,964). Petitioners do not contend that such evidence was unavailable to them at that time and offer no explanation for their late submission. Therefore, I will not consider the two exhibits belatedly submitted with petitioners' reply.

With respect to the merits, the appeal must be dismissed. Pursuant to Education Law "1709(3) and (33) a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al v. Board of Education, 27 NY2d 333; Appeal of Lancaster Parent Alliance, 38 Ed Dept Rep 356, Decision No. 14,053; Appeal of Johnson, et al., 37 id. 465, Decision No. 13,906; Appeal of Damadeo, et al., 36 id. 201, Decision No. 13,701). In such cases, a board’s discretion is broad (Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert. den. 382 US 905; Appeal of Johnson, et al., supra; Appeal of Parrish, 32 Ed Dept Rep 261, Decision No. 12,825). Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Matter of Older, supra; Appeal of Parrish, supra). Moreover, petitioners bear the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (Appeal of Lancaster Parent Alliance, supra; Appeal of Sherwood, et al., 33 Ed Dept Rep 410, Decision No. 13,096). I find that petitioners have failed to meet that burden of proof.

Petitioners merely state that respondent based its decision solely on public pressure and that moving their son from one elementary school to another is detrimental to his educational well being. However, petitioners do not provide a single item of evidence to support their allegations. Petitioners argue that respondent failed to provide proper notice before adopting Plan 3.5 and violated its own policy in this regard. As noted above, petitioners belatedly provided a copy of the policy they contend respondent violated. Even if I were to consider that evidence, the policy does not apply to administrative determinations such as pupil assignments, but rather to policy adoption. Further, as respondent points out and petitioner does not dispute, proper public notice was given for each meeting at which the redistricting was discussed. Evidently, petitioners believe that they did not have sufficient time to organize opposition to Plan 3.5 to counteract perceived pressure on respondent from other parents. However, petitioners have not provided any evidence that respondent altered its decisions because of public pressure. Additionally, it appears that petitioners and other Tip Top Lane residents did express their views at meetings subsequent to the adoption of Plan 3.5 and that respondent considered those opinions, but did not alter Plan 3.5.

In contrast, the record demonstrates that respondent attempted to resolve overcrowding at two of its elementary schools while disrupting as few students as possible and effectively utilizing classroom space. This process took many months, involved the input of a committee and consultant, and provided district residents with numerous opportunities to voice their concerns. The record indicates that the plan selected by respondent reduced the number of students who would be reassigned as the result of the opening of the East Street School to 382, the least of any proposal. In addition, the plan appears to achieve a balance in enrollment among the schools. In sum, based on the record before me, I cannot conclude that respondent's decision in this matter was arbitrary, capricious or contrary to sound educational policy.