21 A.D.2d 561 | N.Y. App. Div. | 1964
This appeal is from an order and judgment which denied the motions of the respondent-appellant Commissioner of Education to dismiss the petitions as insufficient in law and annulled the determination of the Commissioner complained of in the petitions.
The petitioners in both proceedings are parents of white children affected by the Commissioner’s decision. The two petitions are substantially similar; the petitioning parents in both proceedings are represented by the same attorneys. The Board of Education of the school district is a pjarty to the second proceeding and has served an answer. *
Union Free School District No. 12 of the Town of Hempstead contains a junior high school and a senior high school. After completion' of the requirements of the fifth grade all pupils attend the junior high school. The attendance area for the junior high school and for the senior high school is the entire school district. The district contains also three elementary schools: Woodfield Boad School, Davison Avenue School and Lindner Place School. As the result of concentration of Negroes in a specific area Woodfield School has a Negro-to-white ratio of approximately 75%, which is constantly increasing. Each of the other two elementary schools has a Negro pupil enrollment of approximately 14%.
Negro children through their parents appealed to the Commissioner from the refusal of the Board of Education to alter zoning areas for school attendance. An oral argument was held and findings and recommendations were submitted by the Commissioner’s Advisory Committee on Human Delations
The petitioners rely on section 3201 of the Education Law, which provides: “No person shall be refused admission into or be excluded from any public school in the state of New York on account of race, creed, color or national origin.” The Commissioner required that all pupils in grades 4 and 5 should attend the Woodfield School. This is no different than high school pupils’ attendance at the junior or senior high schools; the geographical attendance areas for the high schools and the Woodfield School are the same, consisting of the entire school district. The Commissioner’s direction to the board was also to “Reorganize the attendance areas of the District so that all pupils from kindergarten to grade 3 inclusive, will attend either the Davison Avenue or the Lindner Place elementary school ”. When the attendance zones are so reorganized each pupil will attend the school in his attendance area and no child will be refused admission to any school in his attendance area and accommodating his respective grade. If it be argued that children are refused admission to a school because there are another or other elementary schools in their attendance area although not accommodating their respective grades, then section 3201 becomes a segregation statute mandating con
As to the allegation that the Commissioner’s decision was arbitrary, capricious and unreasonable it has been held that in a proper case efforts may be made to correct racial imbalance (Matter of Balaban v. Rubin, 14 N Y 2d 193, supra). The court at Special Term summarized the Commissioner’s position, saying (41 Misc 2d 200, 206):
“ Upon these applications, these facts are undisputed; racial imbalance exists in the three neighborhood schools involved; such racial imbalance does not result from law but rather from incidence of residence; and there has been nothing improper in the drawing of lines for attendance zones.
“ The contention of the Commissioner, however, is that racial imbalance is harmful to education; and for that reason, and that reason alone, he has made the order under attack in these proceedings.”
The report of the Commissioner’s Advisory Committee, as it appears in the Commissioner’s decisions which are annexed to the petitions, provides support in the record for the Commissioner’s determination. On application of the conventional test we find the Commissioner’s decision to be neither arbitrary nor .capricious. Where there is found to be a rational basis for the administrative determination the judicial function is exhausted and the administrative agency, not the court, is the final arbiter. The court cannot substitute some other judgment for the judgment of the Commissioner that correction of racial imbalance is - an educational aid to a minority group in attaining the skills and level of education which others have had for generations and that compulsory education should be designed for the greatest good of all.
We therefore examine the petitions to determine if there are any allegations of fact the resolution of which in the petitioners’ favor would leave no rational basis for the administrative decision (Matter of O’Brien v. Commissioner of Educ.,
Finally we are required to advert to the pleadings to refer to technicalities which we propose to ignore for the reasons about to be stated. There is annexed to the original petition of Michael Vetere and to the Hummel and Abrams petition a press release dated August 16, 1963, of the Board of Education stating its intent to file with the Commissioner the following plan: “ Grade 4 and Grade 5 pupils will attend Woodfield Boad School, except for one balanced class of each grade at Davison Avenue and Lindner Place Schools. Kindergarten pupils will remain in the neighborhood schools. Pupils in Grade 1, 2 and 3 will attend either Lindner Place or Davison Avenue School, except for one class of each grade at Woodfield Boad School.” The petitioners’ orders to show cause were returnable September 13, 1963. However, the petitioner Vetere, in response to a motion for leave to intervene by the National Association for the Advancement of Colored People, cross-moved by notice of motion returnable September 13, 1963, to add certain parties and also to amend his petition to state: “On or about the 16th day of August, 1963, the said Board of Education, acting in its official capacity as such and acting by virtue of the aforesaid decisions and orders of the Commissioner, adopted in part the racial placement plan decreed by the Commissioner. Attached hereto and incorporated herein by reference as Exhibit ‘ C ’ is a press release of August 16, 1963, whereby the said Board of Education described its proposed plan.”
“ Upon information and belief, subsequent to the commencement of this proceeding the said Commissioner of Education rejected and disallowed such plan of the Board of Education.”
The proposed amended petition is printed in the record and, pursuant to certification of the record on appeal subscribed by the petitioners’ attorneys, the record contains also the decision of the Commissioner dated September 5, 1963, wherein he rejected the proposed plan of the Board of Education. The order and judgment of the court granted the petitioner Vetere’s motion to add parties but is silent as to the amendment sought by the cross motion.
The court stated at Special Term (pp. 203, 206); “The Board’s plan, following the aforesaid direction, required that 224 pupils from Woodfield Boad School, selected on the basis that they are of the Negro race, be transferred to the Davison Avenue and Linden Place Schools; 92 pupils from Davison
“ When a number or percentage of pupils of whatever race, color or creed, normally entitled and indeed required to attend a public school in their attendance zone, are denied admission, and, contrary to their wishes, are directed to attend a school in a different zone in order to eliminate racial imbalance, is this anything other than denial of admission on the ground of race or color, contrary to long-established law? ”
This is contradicted by the record, although it is so alleged in the Vetere petition before the proposed amendment and in the Hummel petition. As stated in the proposed amended Vetere petition the board’s plan was rejected and the Commissioner’s plan entailed centralization of grades 4 and 5 in the Woodfield School and reorganization of attendance areas so that children from kindergarten to third grade inclusive would attend either the Davison or Lindner School. The Commissioner’s plan did not, as did the board’s rejected plan, require children to attend a" school not located in their attendance area.
This appeal was argued on the merits. The entire argument, both in the petitioners’ brief and in the respondent Board of Education’s brief, is directed exclusively to the Commissioner’s decision. As a matter of fact the petitioners at page 33 of their brief state that the only plan before the court was the Commissioner’s direction to the board to “ reorganize the attendance areas of the District so that all pupils from the kindergarten to grade 3 inclusive will attend either the Davison Avenue or the Lindner Place elementary school; all pupils in grades 4 or 5 will attend the Woodfield Road School.” And they add “it is pointless to speculate as to what the court might have decided with respect to some other plan.” And there was at no time urged in briefs or arguments that the board’s rejected plan was an issue because the Hummel petition had not been amended to conform to the proposed amendment of the Vetere petition, which alleged and confirmed the rejection of the board’s plan or that the proposed amended petition should not be considered. The issue presented to us was solely the validity of the Commissioner’s decision. We have mentioned that the same attorneys represent the petitioners in both proceedings. We therefore ignore the technical issues since they are not raised and treat the Commissioner’s motions to dismiss as directed to the Vetere petition as proposedly amended and
The order and judgment should be modified, on the law and the facts, by reversing so much thereof that annulled a determination of the appellant Commissioner of Education and that denied the appellant’s motion to dismiss the petitions, and, as so modified, affirmed, without costs.
Heblihy, J. P., Reynolds, Taylor and Atjlisi, JJ., concur.
Order and judgment modified, on the law and the facts, by reversing so much thereof that annulled a determination of the appellant Commissioner of Education and that denied the appellant’s motion to dismiss the petitions, and, as so modified, affirmed, without costs.