Decision No. 12,876

(January 8, 1993)

SOBOL, Commissioner.--Petitioners appeal from respondent's redistricting plan which established new attendance zones. Petitioners challenge respondent's plan on behalf of children living in the "Jones Road area", alleging that as a result of respondent's plan they now face a second move in two years. The appeal must be sustained in part.

In an effort to reduce overcrowding during the 1988-89 school year, respondent transferred a number of students from the Dorothy Nolan Elementary School to the Lake Avenue Elementary School. Subsequently, at board meetings held on March 12 and March 28, 1991, respondent announced a new redistricting plan ("the plan") to further reduce overcrowding. The plan required the transfer of 186 students including 55 who, according to petitioners, were moved previously to another school under the 1988-89 redistricting plan. In reaching its decision to adopt the plan, respondent considered several plans, including one that would have required the transfer of between 237 and 278 students. On March 28, 1991, respondent voted to adopt the plan commencing in the 1991-92 school year. Petitioners sought a stay of the plan's implementation which was denied on May 1, 1991. This appeal ensued.

Petitioners seek to bring this case on behalf of a class of children, asserting that respondent's adoption of the plan was arbitrary and capricious because it failed to accomplish its stated goal of reducing class size. In addition, petitioners argue that the plan was adopted without adequate consideration of alternatives, and that its adoption was not in the best interests of those children who would be forced to make multiple transfers. Accordingly, petitioners seek to nullify respondent's plan.

Respondent asserts that the appeal is not properly brought on behalf of a class of children. Furthermore, the board contends that since its adoption of the plan was within its discretion and was adopted after due deliberation, the appeal should be dismissed.

Petitioners seek to bring this appeal as a class appeal on behalf of "children of the Jones Road area". Pursuant to 8 NYCRR '275.2, an appeal may be maintained on behalf of a "class of named or unnamed individuals only 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" (Appeal of Czerepak, 31 Ed Dept Rep 448). Petitioners identify as their class 55 students who will be transferred from the Lake Avenue School to the Dorothy Nolan School as a result of the redistricting plan, who they claim were already transferred previously as a result of respondent's 1989-90 redistricting. Despite petitioners' generalizations, the record reveals that not all 55 students were transferred in the 1988-89 redistricting. For example, neither of petitioner McNamara's children were even enrolled in school prior to the 1988-89 school year. Therefore, even though they may be affected by the redistricting plan at issue, neither child was affected by the previous redistricting. Additionally, even though one of petitioners' Buchner's children will be affected by the plan and was affected as a consequence of the prior redistricting, their other child entered the Junior High School in 1991-92 and was, therefore, not affected by the plan. In any case, it is clear that the 55 students that petitioners claim constitute a class of children previously moved under the 1988-89 redistricting plan have not all been subject to such action. Therefore, I find no indication in the record that the essential facts and legal questions are the same for all members of the purported class, or that the class to be represented is so numerous that joinder of all members is impracticable. Accordingly, petitioners' application for class status must be denied.

Education Law '1709(33) authorizes a board of education to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Appeal of Parrish, 32 Ed Dept Rep __, Decision #12825, dated October 26, 1992; Appeal of Cullen, 32 Ed Dept Rep __, Decision #12798, dated September 8, 1992; Matter of Older, et al. v. Board of Education, 27 NY2d 333). In such cases, a board of education has broad discretion in its assignment of pupils to schools (Appeal of Parrish, supra; Matter of Addabbo v. Donovan, 22 AD2d 383, aff'd 16 NY2d 619, cert den 382 US 905). 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 Parrish, supra).

The record reflects that the board of education selected the plan following public comment and only after consideration of several alternatives. According to the record, implementation of the plan would result in the transfer of fewer students than other plans reviewed by respondent. According to respondent, it adopted the plan on the basis that it offered an efficient and effective use of buildings and teaching staff. Since I find that respondent's determination was made after full consideration of the facts, its decision to adopt the plan was neither arbitrary nor capricious.

In an appeal before the Commissioner of Education, the petitioner has the burden of establishing the facts upon which relief may be granted (8 NYCRR 275.10; Appeal of Parrish, supra; Appeal of Verity, 31 Ed Dept Rep 485; Appeal of Singh, 30 id. 284). Petitioners offer conclusory statements that the reconfiguration will be harmful to students. However, since petitioners' claims are based, in their entirety, on mere speculation, the appeal must be dismissed.

Nonetheless, the fact that respondent's redistricting plan caused some students to change schools twice in two years may suggest a defect in respondent's long-range plan. Moreover, it appears that this long-range plan may not have been adopted, reviewed and revised annually as required pursuant to Commissioner's regulations 8 NYCRR '155.1(a).

I have considered petitioners' remaining claims and find them without merit.

THE APPEAL IS SUSTAINED to the extent indicated.

IT IS ORDERED that within sixty days respondent comply with Commissioner's regulations '155.1(a) in developing or modifying as necessary a comprehensive long-range plan.

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