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Decision No. 14,281

Appeal of LORRAINE BLUEMKE, et al., from action of the Board of Education of the Half Hollow Hills Central School District, Board President Jack Tesoriero, Board Members, Hal Austein, Vicki Leopold, Stuart Pastrich, and Superintendent Dr. Kevin N. McGuire regarding redistricting.

Decision No. 14,281

(December 21, 1999)

Ehrlich, Frazer & Feldman, Esqs., attorneys for respondents, Laura Mongelli, Esq., of counsel

MILLS, Commissioner.--Petitioner challenges the decision of the Board Of Education of the Half Hollow Hills Central School District ("respondent") to change the student enrollment pattern for the district’s two high schools. The appeal must be dismissed.

Respondents’ district has two high schools, High School East and High School West. Historically, students from the district’s two middle schools have been dispersed between the high schools. In or about July 1996, the district decided to study enrollment patterns at the high schools. At that time, the enrollment at High School West was significantly smaller than High School East. An April 1996 demographic study revealed that the enrollment disparity would continue to grow until the year 2005. This raised concerns about the district’s ability to offer comparable courses and extra-curricular opportunities at both schools.

Respondents discussed the enrollment issue and possible remedies at several board meetings and entertained public comment. In addition, at its September 9, 1996 meeting, respondent board voted to form an advisory committee ("committee"). Respondent board directed the committee to recommend options for assigning students to the high schools with the goal of increasing enrollment at High School West. During October 1996, the committee held four public hearings to solicit community input.

The committee reported its findings to respondent board at its November 18, 1996 meeting. The committee offered three options: (1) do nothing; (2) move certain census areas from High School East to High School West; or (3)"pair" Candlewood Middle School with High School West and West Hollow Middle School with High School East so that middle school graduates would attend the high school paired with their middle school. The committee noted that the "no action" approach was not viable and described the pros and cons of the other two options. The committee noted that the pairing option would enable students to maintain friendships formed in middle school, simplify the tracking of academic experience and accountability, achieve racial balance and address the needs of some elementary schools that had been split twice.

Respondent board continued to discuss the options and to entertain public comment at its regularly scheduled meetings. At its January 13, 1997 meeting, respondent board voted to adopt the pairing option effective September 1997. Superintendent McGuire informed the community of this choice in a letter dated January 17, 1997. He stated that pairing would increase enrollment at High School West and permit the district to continue to offer matching academic options at both high schools. He also noted that pairing would afford greater continuity in instruction, extracurricular activities and student relationships. This appeal ensued. Petitioner’s request for interim relief was denied on March 18, 1997.

Petitioner seeks to challenge respondent board’s decision on behalf of district residents, parents, taxpayers and students. She alleges that respondent board’s action is arbitrary and capricious and that it was taken without proper notice. She contends that the pairing decision will result in the expenditure of tax funds without proper submission to the voters and will not achieve the board’s asserted goals. She also argues that the decision promises preferential treatment to one "geographic class" of students, taxpayers and parents at the expense of another "geographic class".

Respondents contend that the appeal is untimely, that petitioner failed to effect service on the named individuals, and that class status should be denied. Respondents also assert that petitioner fails to prove that their actions were arbitrary, capricious or contrary to sound educational policy and maintain that they acted within their authority.

Before reaching the merits, I will address the procedural issues. First, petitioner seeks to maintain this appeal on behalf of a class including district residents, taxpayers, parents and students. 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 a Student with a Disability, 39 Ed Dept Rep , Decision No. 14,154; Appeal of Aloisio, 38 id. 169, Decision No. 14,009; Appeal of Parent-Student Coalition of Fallsburg, 37 id. 522, Decision No. 13,917). A petitioner must set forth the number of individuals he or she seeks to represent (Appeal of Sperl, 33 Ed Dept Rep 388, Decision No. 13,088) 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, Decision No. 13,079).

In the instant appeal, petitioner has not set forth the number of prospective members of the class or attempted to demonstrate that all the potential class members have the same interests or claims. In any event, a determination as to this petitioner will resolve the issue for all potential petitioners. Thus, there is no need for class certification. Accordingly, class certification is denied.

Respondents argue that the appeal is untimely. An appeal to the Commissioner must be instituted within 30 days from the making of the decision or the performance of the act complained of, unless excused by the Commissioner for good cause shown (8 NYCRR "275.16). Petitioner appeals a decision made by respondent board at its January 13, 1997 meeting and publicized in a letter from respondent superintendent to district residents dated January 17, 1997. Petitioner asserts that she received the letter on or about January 18, 1997. While petitioner attempted to commence an appeal by serving a petition on February 18, 1997, my Office of Counsel rejected these papers on February 21, 1997 for failure to comply with a number of Commissioner’s regulations. On March 5, 1997, petitioner commenced this appeal by serving a petition upon respondent.

Even if I accept that petitioner’s time to appeal did not begin to run until on or about January 18, 1997, when she claims she received notice of the respondent board’s decision, the appeal is still untimely because it was commenced on March 5, 1997, more than 30 days later. The fact that petitioner attempted to commence the appeal on February 18, 1997, by service of a petition that did not comply with the regulations of the Commissioner, is not a valid excuse for her failure to commence this appeal in a timely fashion (Appeal of Kelly, 39 Ed Dept Rep ,Decision No. 14,203). Nor is petitioner’s contention that the minutes of the board’s January 13 meeting were not immediately available (Appeal of Phillips, 38 Ed Dept Rep 297, Decision No. 14,038).

Respondents also maintain that petitioner failed to obtain jurisdiction over the superintendent and individually named board members. An appeal to the Commissioner must be initiated by personal service of the petition upon each named respondent, in accordance with 8 NYCRR "275.8(a) of the Commissioner’s regulations. That section provides in pertinent part:

A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers,. . . shall be personally served upon each named respondent . . . (emphasis added).

The record shows that petitioner delivered a copy of the petition to the district clerk but failed to personally serve the individually named respondents. Therefore, the claims against respondents McGuire, Tesoriero, Austein, Leopold, and Pastrich individually are dismissed for lack of jurisdiction.

Even if this appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 [1971]; Appeal of Alfano, 39 Ed Dept Rep , Decision No. 14,224; Appeal of Aloisio, 38 Ed Dept Rep 169, Decision No. 14,009). 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., 32 Ed Dept Rep 261, Decision No. 12,825). 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 Alfano, supra). Moreover, petitioner bears the burden of demonstrating that respondent’s action is arbitrary, capricious or contrary to sound educational policy (Appeal of Alfano, supra; Appeal of Sherwood, et al., 33 Ed Dept Rep 410, Decision No. 13,096). I find that petitioner has failed to meet that burden of proof.

The issue on appeal is whether respondents’ plan is rational, not whether the problem could have been better addressed by other approaches (Appeal of Alfano, supra). Petitioner’s conclusory allegations that pairing is the "most invasive" approach and that it affords preferential treatment to some students are not supported by the record. Rather, the record indicates respondent made a reasoned attempt to analyze all relevant factors. Throughout the redistricting process, respondent board sought to increase enrollment at High School West. The board feared that declining enrollment would require a reduction in academic and extra-curricular opportunities that would weaken the high school. It sought to maintain quality education at both district high schools. In addition to assessing demographic studies, enrollment figures and transportation plans, it formed an advisory committee that conducted public hearings. The board considered the committee’s report and the comments of numerous interested individuals. The record shows that respondent considered a number of options and chose the one that it believed would best serve its pupils. The committee had noted that pairing would increase the enrollment at High School West, allow students to maintain middle school friendships, simplify recordkeeping and achieve racial balance between the high schools. Respondent also found that the pairing plan would encourage:

  1. vertical communication from grade six through grade twelve allowing for concentration on individual student needs and continuity in instruction;
  2. confidence for students making the transition from middle to high school by maintaining relationships formed in middle school;
  3. direct articulation of interscholastic programs and extra-curricular activities; and
  4. a more streamlined, personalized means of transferring individual academic data from middle to high school.

Accordingly, based upon the record before me, I do not find that it was irrational for respondent to choose the pairing option.

Petitioner also complains that respondent failed to give adequate public notice of its intent to change the student enrollment patterns at the high schools. There is no requirement in law that a board conduct a hearing upon any particular matter or grant to any person the right to be heard (Appeal of Alfano, supra, Appeal of Aloisio, supra). Therefore, any complaints about public notice or comment are not grounds to invalidate a redistricting decision. In any event, petitioner concedes that she was aware that respondent board was considering this matter in October 1996 and the board’s decision was not made until January 1997. Moreover, the record indicates that respondent made a concerted effort to obtain public input by establishing the advisory committee, which conducted its own public hearings, and by receiving public comments and questions at numerous board meetings between July 1996 and January 1997.

In sum, I conclude that respondent’s decision in this matter is not arbitrary, capricious or contrary to sound educational policy.