Appeal of P.C., on behalf of her son T.C., from action of the Board of Education of the Smithtown Central School District regarding attendance zones.

Decision No. 15,386

(March 21, 2006)

Brian Gucciardo, Esq., attorney for petitioner

Law Offices of Peter G. Albert, attorneys for respondent, Peter G. Albert, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the Board of Education of the Smithtown Central School District ("respondent") denying her request for her son to attend a high school outside of his attendance zone. The appeal must be dismissed.

At the beginning of the 2005-2006 school year, respondent began operating two high schools, the Smithtown East High School ("Smithtown East") and the Smithtown West High School ("Smithtown West"), to accommodate an increase in student enrollment. In prior years, respondent operated one high school and a "freshman campus," to which all ninth grade students were assigned.

In the 2003-2004 school year, petitioner's son was an eighth grade student at respondent's Great Hollow Middle School ("Great Hollow"). The following school year, like all ninth grade students, petitioner's son was assigned to the freshman campus. For 2005-2006, respondent assigned petitioner's son to Smithtown West. Although it is undisputed that petitioner and her son reside within the Smithtown West attendance zone, petitioner requested that her son be allowed to attend Smithtown East. Respondent's superintendent denied petitioner's request on August 25, 2005, as did respondent on September 13, 2005. This appeal ensued. Petitioner's request for interim relief was denied on October 3, 2005.

Petitioner contends that her son was "bullied, harassed and tormented" by students at Great Hollow and suffered " depression, anxiety and suicidal ideation" as a result. She argues that her son had established a "peer support group" while attending the freshmen campus, but that all of the members of this group were assigned to Smithtown East, while the students who had bothered her son in middle school were assigned to Smithtown West. Petitioner alleges that respondent has consistently failed to create a safe environment for her son, and that by making him attend Smithtown West, it is putting him "at risk" of both physical and verbal abuse from other students, as well as "irreparable psychological damage." Finally, petitioner claims that because Smithtown East is located significantly closer to her home than Smithtown West, and in light of the fact that her husband is seriously ill, her son's attendance at Smithtown West creates an "additional family hardship." Petitioner requests that her son be permanently reassigned to Smithtown East.

Respondent admits that during the 2002-2003 school year petitioner's son "was subjected to some improper behavior" by fellow students, but claims that school officials intervened and stopped the behavior. Respondent claims that petitioner' s son has not experienced or reported any problems with students at Smithtown West. Respondent argues that it has created a safe and nurturing educational environment at Smithtown West, that it is seeking to arrange school counseling for petitioner's son and that petitioner's claims of irreparable psychological damage are unsupported and premature.

With respect to the assignment of petitioner's son, respondent admits that Smithtown East is geographically closer to petitioner's residence than Smithtown West, but states that student enrollment and the elementary/middle schools that pupils attended (and not geographic proximity to a school) were used to determine high school assignments. Respondent therefore claims that its actions and decisions were not arbitrary or capricious, were based on sound pedagogical and administrative factors which were uniformly applied, and were consistent with the Education Law. It also claims that petitioner's appeal is baseless and fails to state a cause of action.

Pursuant to Education Law ��1804(1), 1709(3) and 1709(33), a board of education of a central school district 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. Bd. of Educ., 27 NY2d 333; Appeal of Giovanniello, 44 Ed Dept Rep 17, Decision No. 15,081; Appeal of P.S., 39 id. 806, Decision No. 14,387). In the assignment of pupils to schools, a board of education has broad discretion (Matter of Addabbo, et al. v. Donovan, et al., 22 AD2d 383; aff'd 16 NY2d 619, cert. denied 382 US 905; Appeal of Araneo, 45 Ed Dept Rep __, Decision No. 15,336; Appeal of the Lancaster Parent Alliance, 38 id. 356, Decision No. 14,053). Accordingly, a board's decision regarding school assignments will only be overturned when found to be arbitrary, capricious or contrary to sound educational policy (Matter of Older et al. v. Bd. of Educ., 27 NY2d 333; Appeal of Giovanniello, 44 Ed Dept Rep 17, Decision No. 15,081; Appeal of Johnson, 37 id. 465, Decision No. 13,906). Moreover, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR �275.10; Appeal of Patton, et al., 42 Ed Dept Rep 226, Decision No. 14,832; Appeal of Pope, 40 id. 473, Decision No. 14,530).

Based on the record before me, I find that petitioner has not met her burden of showing that respondent acted in a manner that was arbitrary, capricious, or contrary to sound educational policy. There is no evidence that petitioner's son is currently being harassed or bullied at Smithtown West. In fact, petitioner herself asserts only that her son is "at risk" of physical and verbal abuse at the school. Though I am not unmindful of the student's feelings, the fact that he may be having some difficulty adjusting to his new school is not a sufficient basis for overturning respondent's decision. ( Appeal of B.S., 44 Ed Dept Rep 329, Decision No. 15,188; Appeal of Giovanniello, 44 id. 17, Decision No. 15,081). The record reflects that the school principal and teachers are aware of the past misconduct and the students involved. It also reflects that petitioner's son was given the opportunity to transfer out of any classes to which those students were assigned, but declined to do so.

Moreover, even if the distance between petitioner's residence and her son's school causes some inconvenience, it does not allow me to substitute my judgment for that of respondent. While I am sympathetic to the difficulties that petitioner and her family may have given her husband's condition, personal inconvenience or hardship, though regrettable, is also not a basis for overturning respondent's decision (seee.g.Appeal of Lewis, 33 Ed Dept Rep 24, Decision No. 12,962). Thus, the record before me simply provides no legal basis for granting the relief that petitioner seeks.

THE APPEAL IS DISMISSED.

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