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Decision No. 14,310

Appeal of MARIJO JIMERSON, on behalf of HALEY and LAYNA JIMERSON, from action of the Board of Education of the Gowanda Central School District regarding a school district boundary.

Decision No. 14,310

(February 23, 2000)

Chiacchia & Fleming, LLP, attorneys for petitioner, Andrew P. Fleming, Esq., of counsel

Hurst, Brothman & Yusick, attorneys for respondent, Phillip Brothman, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the refusal of the Board of Education of the Gowanda Central School District ("respondent") to alter the boundary between the Gowanda Central School District ("Gowanda") and the Pine Valley Central School District ("Pine Valley"). The appeal must be dismissed.

Petitioner resides in the Gowanda school district near its border with Pine Valley. Her two daughters initially attended Gowanda schools. In 1995, they transferred to Pine Valley and petitioner began paying nonresident tuition. In 1998, Pine Valley raised the tuition and notified petitioner that it would no longer transport her daughters. Petitioner met with the superintendent of Pine Valley and allegedly was advised to ask respondent to change its boundaries to transfer her property into the Pine Valley district.

Petitioner made a written request to respondent for a boundary change on October 22, 1998. Respondent met with petitioner in executive session at its November 18, 1998 meeting and, in public session, voted to deny her request. Respondent stated that its decision was based "upon the best educational interests of all children involved." This appeal ensued.

Petitioner asserts that it is in the best educational interests of her children to alter the boundary. More particularly, petitioner alleges that the atmosphere at Gowanda’s schools is racially divisive and asserts that her daughters are more comfortable attending Pine Valley. Petitioner also contends that the student-teacher ratio at Pine Valley is significantly lower than at Gowanda and that her daughters now get better grades than when they attended Gowanda schools. Petitioner also argues that her daughters’ bus rides to Pine Valley are shorter.

Petitioner further contends that her home is very close to the border between the two districts and that no other students would be affected by the change. Petitioner alleges that other Gowanda residents are permitted to attend Pine Valley tuition-free and that her daughters are being treated unfairly. She claims that district borders have been modified in similar situations in the past.

Respondent asserts that the petition must be dismissed because Pine Valley was not joined as a party to this appeal. Respondent argues that its decision not to change the boundary was correct and properly based on the educational interests of its students. It disputes petitioner’s claims regarding racial unrest, student-teacher ratios and bus rides. Respondent states that no other Gowanda residents are permitted to attend Pine Valley without paying nonresident tuition and that its borders have not been altered in response to parental requests in the past. Finally, respondent claims that altering the boundary as requested would require it to remove two other properties from the district and would reduce its tax revenue to the detriment of all Gowanda students.

I will first address several procedural issues. Petitioner’s reply seeks relief that was not requested in the petition. She asks that, if I do not order a change in the district boundaries, I order respondent to pay for her daughters’ transportation to Pine Valley. Pursuant to 8 NYCRR ""275.3 and 275.14, the purpose of a reply is to respond to new material and affirmative defenses set forth in the answer. A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been in the petition (Appeal of Wayne, 39 Ed Dept Rep __, Decision No. 14,298; Appeal of Tudor, 38 id. 591, Decision No. 14,100). Accordingly, while I have reviewed petitioner's reply, I have not considered her new request for relief.

Respondent submitted a response to petitioner’s reply, with a supporting affidavit. The regulations of the Commissioner do not expressly permit a response to a reply. The regulations do allow parties to submit additional pleadings, but only with the prior permission of the Commissioner (8 NYCRR "275.3[b]). The response to petitioner’s reply was not submitted in accordance with "275.3(b) of the Commissioner's regulations and, therefore, is not part of the record and will not be considered in this appeal.

The appeal must be dismissed for failure to join the Pine Valley Board of Education as a necessary party. An individual or entity whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Kurlans, et al., 37 Ed Dept Rep 293, Decision No. 13,861; Appeal of Regan, 34 id. 72, Decision No. 13,237, application to reopen denied 34 id. 393, Decision No. 13,357). The boundary petitioner seeks to change is situated between Gowanda and Pine Valley. Inasmuch as Pine Valley would be adversely affected by a decision in favor of petitioner, the board is a necessary party to this appeal (Appeal of Ocwieja, 38 Ed Dept Rep 70, Decision No. 13,985). Petitioner’s failure to join Pine Valley requires that the appeal be dismissed.

The appeal must also be dismissed on the merits. The decision of a board of education to refuse to consent to a boundary alteration will not be set aside, absent proof that the refusal was not in the best educational interests of the children involved or was arbitrary or capricious (Appeal of Ocwieja, supra; Appeal of Regan, supra; Appeal of Bearup, 32 Ed Dept Rep 570, Decision No. 12,916). The paramount consideration in a case involving a proposed alteration of district boundaries is the educational interests of the children involved. Petitioner must make a clear showing that the denial of the relief requested will adversely affect those interests (Appeal of Ocwieja, supra; Appeal of Regan, supra; Appeal of Bearup, supra). Petitioner has failed to make this showing or to demonstrate that respondent’s determination was arbitrary or capricious.

Petitioner contends that changing the boundary would serve her children’s educational interests because Pine Valley has better student-teacher ratios and better academics than Gowanda. Petitioner, however, has not proffered sufficient evidence to support this claim, and, even if proven, such a claim is not a basis for altering school district boundaries (Appeal of Ocwieja, supra; Appeal of Bearup, supra). Similarly, petitioner’s assertions about racial conflict in Gowanda’s schools are conclusory and do not provide a basis for reversing respondent’s determination.

With respect to petitioner’s contention that her children would be closer to school if the boundaries were changed, the proximity of the schools cannot be the sole basis for drawing school district boundaries (Appeal of Bearup, supra, Matter of Cooper, 15 Ed Dept Rep 293, Decision No. 9,180). Even when a student has a lengthy bus ride to and from school, this does not constitute sufficient hardship to require the alteration of boundaries (Appeal of Bearup, supra,). In any event, despite petitioner’s urgings, the record does not establish that there would be a substantial savings in either travel time or waiting time if the boundaries were redrawn.

Finally, the effect of a boundary change on the educational resources of respondent’s district must also be considered (Appeal of Ocwieja, supra; Appeal of Regan, supra). Here, petitioner admits that the proposed boundary change would result in a loss of tax revenue to respondent and speculates that respondent could find ways to offset the loss. This loss of revenue would, however, adversely affect the remaining students and programs in respondent’s district by decreasing the educational resources available to them.

Given the negative impact on respondent’s educational programs, as well as the speculative nature of petitioner’s claims, the appeal must be dismissed (Appeal of Cavaliere, 34 Ed Dept Rep 224, Decision No. 13,289).