Appeal of JOYCE C. WACHALA, on behalf of her children ARTUR and KRYSTYNA, from action of the Board of Education of the City School District of the City of Schenectady regarding attendance zones.

Decision No. 15,950

(July 17, 2009)

Shari Greenleaf, Esq., attorney for respondent

HUXLEY, Interim Commissioner.--Petitioner appeals the determination of the Board of Education of the City School District of the City of Schenectady (“respondent”) to reorganize its schools.  The appeal must be dismissed.

On July 1, 2004, respondent adopted a strategic plan (“2004 Plan”), which, among other things, called for school reconfiguration to accomplish the district’s mission and objectives.  The proposed reconfiguration included moving sixth grade students from middle schools into elementary schools and creating one or more K-8 schools.

During the 2008-2009 school year, the district finalized plans to convert the King Math Science Technology and Invention Magnet School (“King”) from a K-6 to a K-8 school for the 2009-2010 school year.  Also during the 2008-2009 school year, the district considered various reorganization proposals, a component of which was to formulate a second K-8 magnet school.  The district held numerous meetings to obtain the input of teachers, staff, parents and community members regarding potential school reorganizations.  Namely, the superintendent attended eight meetings with Parent Teacher Organizations (“PTOs”), the assistant superintendent attended two PTO meetings, and the superintendent met with the presidents of all bargaining units in the district in January 2009 and with staff of the Howe International Magnet School (“Howe”) in February 2009.  Also in February 2009, a community forum was held at Central Park Middle School (“Central Park”) that was videotaped and aired repeatedly on the district’s cable channel.

In addition, the district created an electronic public forum board and frequently asked questions and answers from that forum were posted on the district’s website.  Respondent also accepted public comment at two business meetings and at a study session regarding school reorganization.

Thereafter, on March 4, 2009, respondent adopted resolution number 090304.27 (“resolution”) “to move [the] Howe Elementary School population to Central Park Middle School as a K-8 Program.”  The resolution effectively moved the Howe program to the Central Park location beginning in September 2009, and expanded the magnet program up to eighth grade.  The resolution also provided that the superintendent establish a middle school feeder pattern and develop a proposal for the use of Howe.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 14, 2009.

Petitioner’s son attended first grade at Howe during the 2008-2009 school year and her daughter will be eligible for kindergarten in September 2009.  She seeks to overturn the resolution, contending that the resolution ignores public concerns and violates the Education Law, and is detrimental, fraudulent, misleading, and arbitrary and capricious.

Respondent denies petitioner’s contentions and asserts that the petition fails to state a claim and is untimely.  Respondent asserts that the resolution was within respondent’s authority, was made after extensive public comment, and is reasonable.  It also asserts that, to the extent that the petition claims that the resolution is detrimental to students, the Howe community, parents, taxpayers and the general public, it fails to meet the requirements for a class appeal.

I must first address several procedural issues.  To the extent petitioner attempts to represent persons other than her own children, her request must be denied.  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 Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Giardina, 46 Ed Dept Rep 524, Decision No. 15,583; Appeal of Manes, 46 id. 419, Decision No. 15,551; Appeal of Wallace, 46 id. 347, Decision No. 15,529).  Petitioner’s pleadings are devoid of any allegations addressing these criteria.  Therefore, her request for class status is denied.

The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of a Student with a Disability, 46 Ed Dept Rep 540, Decision No. 15,589; Appeal of E.P. and D.P., 46 id. 390, Decision No. 15,542; Appeals of Cass, et al., 46 id. 321, Decision No 15,521).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

The appeal must be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Proctor, 46 Ed Dept Rep 575, Decision No. 15,599; Appeal of Henley, 46 id. 556, Decision No. 15,594).

Respondent’s resolution was adopted on March 4, 2009.  On March 30, 2009, petitioner served an unverified petition upon Sherrill Redmond, identified in an affidavit of service as an administrative assistant.  By letter dated April 2, 2009, my Office of Counsel returned the petition to petitioner because it did not comply with the Commissioner’s regulations.  On April 6, 2009, petitioner served a verified petition upon Christine Kochem, identified in an affidavit of service as administrative assistant to the assistant superintendent.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Henley, 46 Ed Dept Rep 556, Decision No. 15,594; Appeal of D.P., 46 id. 516, Decision No. 15,580).

In an affidavit attached to respondent’s opposition to petitioner’s request for a stay, dated April 9, 2009, the district’s superintendent avers that respondent has not designated any person in his office to accept service.  Accordingly, neither Sherrill Redmond, whom the superintendent identifies as his secretary, nor Christine Kochem, whom he identifies as secretary to the assistant superintendent, was authorized to accept service of the petition.

Thereafter, petitioner served the petition on the superintendent on April 20, 2009, more than 30 days after the adoption of the resolution and more than the timeframe set forth in my Office of Counsel’s April 2, 2009 letter.  Accordingly, the appeal must be dismissed as untimely.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  Petitioner alleges that the district misled and defrauded the public by, among other things, understating middle school enrollment data; ignoring data and report cards on low performing middle schools versus high performing elementary and magnet schools; ignoring property values; misstating information and goals from the 2004 Plan; and not including any costs in the resolution in violation of Education Law §2556(3).  She also objects to the type and length of notice given to Howe parents regarding the proposal to move Howe to Central Park.

Education Law §2556(3) provides in part:  “Whenever in the judgment of a board of education . . . a building should be remodeled or enlarged, such board shall pass a resolution specifying in detail the necessity therefore and estimating the amount of funds necessary for such purpose.”  However, pursuant to Education Law §2550, this section applies only to the city school districts of New York, Buffalo, Rochester, Syracuse, and Yonkers, commonly known as large city school districts.  Therefore, Education Law §2556(3) is inapplicable to respondent.

Pursuant to Education Law §§1709(3) and (33), and 2503(1) and (3), respondent board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (seeMatter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Sbrocchi, 42 id. 380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  In such cases, a board’s discretion is broad (see Matter of Addabbo v. Donovan, 22 AD2d 383, aff’d 16 NY2d 619, cert. den. 382 US 905; Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Sbrocchi, 42 id. 380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Sbrocchi, 42 id.  380, Decision No. 14,887; Appeal of Broardt, et al., 42 id. 126, Decision No. 14,796).  Furthermore, petitioner bears the burden of demonstrating that respondent’s action was arbitrary, capricious or contrary to sound educational policy (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Sbrocchi, 42 id. 380, Decision No. 14,887; Appeal of Franchese, 39 id. 285, Decision No. 14,239).

I find that petitioner has failed to meet her burden of proof.  According to the record, multiple reorganization proposals were presented to respondent and the public for consideration, all of which addressed one of the action steps developed under the 2004 Plan to increase the number of K-8 schools.  The superintendent avers that he recommended that respondent adopt the resolution to establish a second K-8 magnet school at Central Park in order to accomplish five objectives:  continuing the district reorganizing effort to move all sixth graders out of middle schools and into elementary schools and create choices for attendance at K-8 schools; responding to middle schools that had not yet met state standards; maximizing the use of district facilities and capacities; and expanding opportunities for early childhood centers.  The superintendent states that the district had already planned to expand King from a K-6 to a K-8 magnet school, and doing the same for Howe would increase parental and student choices for two K-8 magnet schools in separate neighborhoods within the district.

The resolution itself was predicated on eight statements: that the 2004 Plan recommended both K-6 for all elementary schools and voluntary K-8 options in addition to middle schools; that reasonable class sizes are a goal; that K-8 allows maintenance of class size goals and a more stable environment; that K-8 improves academic achievement, discipline and attendance for middle school ages; that Howe is a desired program; the Central Park and Oneida Middle School enrollments will fall short of capacity; that underutilization of buildings is not fiscally prudent; and that Central Park’s seventh and eighth grades can be accommodated at the two other middle schools.

In reviewing respondent’s choice of reorganization proposals, the issue for review is whether the “plan is rational, not whether the problem could have been better addressed by alternative approaches” (Appeal of Alfano, et al. 39 Ed Dept Rep 229, Decision No. 14,224; Appeal of Aloisio, et al., 38 id. 169, Decision No. 14,009).  The record shows that respondent adopted its resolution after considering several options with multiple factors.  While petitioner disagrees with some of the data and the interpretation thereof, the record does not show that respondent’s choice was irrational.

Furthermore, to the extent petitioner is upset about the relocation of the magnet school from her neighborhood, as the superintendent points out, her children have the option to enroll in their designated neighborhood elementary school based on attendance zones, or to continue at Howe, albeit in a different location.  In addition, the district offers the King K-8 magnet school and two K-6 magnet schools as schools of choice.

I also find no merit to petitioner’s contentions regarding the type and length of notice afforded to Howe parents about the potential relocation to Central Park.  As noted above, the record indicates that respondent made considerable efforts to involve the public and seek public comment prior to the adoption of the resolution.  In any event, there is no requirement in law that a board conduct a hearing upon any particular subject or grant to any person the right to be heard (Appeal of Alfano, et al. 39 Ed Dept Rep 229, Decision No. 14,224; Appeal of Aloisio, et al., 38 id. 169, Decision No. 14,009).

Finally, petitioner relies on a number of newspaper articles in support of her petition.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Levens-Freeman, 48 Ed Dept Rep 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324; Application of Gabryel, 44 id. 235, Decision No. 15,158).  Therefore, I have not considered the newspaper articles.

In sum, based on the record before me, I cannot conclude that respondent’s reorganization determination was arbitrary, capricious, irrational or contrary to sound educational policy.  In light of the disposition of this appeal, I need not consider the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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