Decision No. 12,660

(March 5, 1992)

SOBOL, Commissioner.--Petitioner appeals from respondent board's adoption of a plan for school district reorganization. The appeal must be dismissed.

During the winter of 1988-89, the Board of Education of the Smithtown Central School District became concerned with the trends of declining student enrollment and economic weakness that it was experiencing and how those trends might affect school district programs. Discussions were held by the housing committee of the board and on February 14, 1989, the board established a citizens' advisory committee to investigate enrollment projections and their impact on future school programs, as well as the financial implications involved.

The advisory committee met 12 times and submitted its report to respondent in November 1989. That report contained numerous recommendations regarding anticipated problems associated with declining student enrollment and possible loss of revenues. The advisory committee's report was referred to the housing committee of the board. During 1990 and part of 1991, the housing committee held a series of public committee meetings and workshops on this matter and made monthly reports to the entire board as part of the board's regular meetings. Concern for this issue was heightened by cutbacks in State aid to school districts that were implemented during the 1991-92 school year, as well as projected cuts for the 1992-93 school year. Additional meetings were held in September and October, 1991 to discuss school reorganization. On October 22, 1991 the board adopted a recommendation to reconfigure the alignment of grades. Finally, on December 4, 1991 respondent adopted a resolution that, effective July 1, 1992, all tenth, eleventh and twelfth grade students in the Smithtown district will attend respondent's West High School; all sixth, seventh and eighth grade students will be transferred to the district's current East High School building; all ninth grade students will be placed in one of the district's middle schools; and its other two middle schools will be closed.

Petitioner maintains that respondent has acted in an arbitrary and capricious manner because it is educationally unsound to place the ninth grade students in a separate building. Petitioner further maintains that respondent has failed to demonstrate that its reorganization plan will provide significant financial savings or that it has addressed the students' safety. Petitioner also objects to the fact that respondent's plan was not one of the recommendations offered by the citizens' advisory committee and that respondent failed to comply with Education Law '402-a.

Respondent contends that the power to reorganize attendance zones is vested in the board of education and that its action has a rational basis and should not be set aside. It further contends that the plan is educationally sound, will provide significant financial savings to the district and does not endanger the students' safety. Respondent also contends that it is not obligated to adopt the recommendations of the citizens' advisory committee or to comply with Education Law '402-a.

In the assignment of pupils to schools within the district, a board of education has broad discretion (Matter of Addabo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert. den. 382 US 905; Matter of Balaban v. Rubin, 20 AD2d 438, aff'd 14 NY2d 193, cert. den. 379 US 881). A decision concerning school district reorganization will not be set aside unless it is shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333; Matter of DeVito, et al. v. Nyquist, et al., 56 AD2d 159, aff'd 43 NY2d 681). Petitioner bears the burden of demonstrating that respondent's action is arbitrary, capricious, or contrary to sound educational policy (Appeal of McNerney, et al., 28 Ed Dept Rep 250; Matter of Malang, 26 id. 134). I find that petitioner has failed to meet his burden of proof.

Petitioner's main concern is that respondent's reorganization plan will result in an undesirable isolation of the ninth grade students who will not be exposed to older students as role models. Petitioner also contends that the placement of all ninth grade students in a building separate from the high school will subject those students to an unnecessary adjustment period when they move up to tenth grade. Petitioner further alleges that such a plan may result in transportation problems. Petitioner's concerns, however, are speculative and cannot form the basis for overturning the school district's decision. Respondent maintains that while the placement of all ninth grade students in their own building does raise some problems, it also provides an opportunity to design a program (core curriculum, electives, extracurricular activities and guidance) specifically for the special needs of ninth grade students. The program also provides an opportunity to build strong class identification among students, which will be carried by the students for the rest of their school career and serve to promote greater participation in all aspects of the program. As I have previously held, there is nothing unsound educationally in placing all students of a particular grade in one building (Matter of Maur, et al., 21 Ed Dept Rep 164).

Petitioner also alleges in a conclusory manner that respondent's plan is arbitrary and capricious because it will not result in significant financial savings to the district since the district's plan does not take into account the cost of additional transportation of students that will result from the reorganization and school closings. Petitioner also alleges that respondent failed to take into account the cost of renovations of certain school buildings, necessitated by the proposed reorganization plan. However, respondent denies that the additional transportation and renovation costs were not considered. In light of petitioner's failure to offer any evidence on this issue, there is no basis to find that respondent has acted in an arbitrary or capricious manner. Petitioner also contends that the increased need for transportation will result in a dangerous situation. Again, I find no evidence in the record to support petitioner's conclusions on this issue.

Petitioner contends that respondent, in adopting its reorganization plan, adopted a program that was not recommended or considered by the citizens' advisory committee. However, that fact does not perse afford a basis for overturning respondent's decision. Although a board of education may appoint an advisory group on matters of this nature, there is no requirement that a board of education establish an advisory committee or seek its recommendations (Appeal of Guidice, et al., 29 Ed Dept Rep 120; Appeal of Randolph, 28 id. 122). Even if a board appoints such an advisory committee, it is the sole responsibility of the board to adopt a reorganization plan (Appeal of Orzechowski, et al., 27 Ed Dept Rep 448; Appeal of Malang, supra).

Finally, petitioner contends that respondent failed to comply with Education Law '402-a. Education Law '402-a is a recently enacted statute that took effect on September 30, 1990 and sets forth recommended procedures for school closings. In light of the fact that respondent commenced this process and established its advisory committee on January 14, 1989, prior to the effective date of Education Law '402-a, this section is not applicable in this instance. Moreover, even in instances where Education Law '402-a is applicable and an advisory committee is established, the final responsibility for adopting a reorganization plan rests with the board (Appeal of Seligman and Rosenberg, 31 Ed Dept Rep 131).

THE APPEAL IS DISMISSED.

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