STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
JOSEPH and PIERCIE EHRLICH, )
individually and as next )
friends of BETTY and )
STEPHANIE EHRLICH, minors, )
and BETTY and STEPHANIE )
EHRLICH, each individually; ) ROBERT and JONI McDERMOTT, )
individually and as next )
friends of DANA McDERMOTT, )
individually; CURT and ) LINDA McKENZIE, individually ) and as next friends of KRIS )
McKENZIE, a minor and KRIS ) CASE NO. 81-1597RP
McKENZIE, individually; and )
P. and JUDY FLOYD, )
individually and as next )
friends of TRACY LEWIS, a )
minor, and TRACY LEWIS, )
individually, )
)
Petitioners, )
)
vs. )
) SCHOOL BOARD OF LEON COUNTY, )
)
Respondent. )
)
FINAL ORDER
Pursuant to notice, the Division of Administrative Hearings, by its duly designated Hearing Officer, William E. Williams, held a public hearing in this cause on July 8, 9 and 10, 1981, in Tallahassee, Florida.
APPEARANCES
For Petitioners: George L. Waas, Esquire
1114 East Park Avenue Tallahassee, Florida 32301
For Respondent: Charles A. Johnson, Esquire
2757 West Pensacola Street Tallahassee, Florida 32304
and
C. Graham Carothers, Esquire
227 South Calhoun Street Tallahassee, Florida 32302
By Petition filed with the Division of Administrative Hearings on June 5, 1981, Petitioners, Joseph Ehrlich, et al. ("Petitioners"), challenge the validity of proposed amendments to Rule 6GX37-3.02(1) of the School Board of Leon County ("School Board" or "Respondent"), and allegedly improperly advertised maps published in connection with the challenged rule amendments.
Final hearing in this cause was held on July 8, 9 and 10, 1981, pursuant to a Notice of Hearing dated June 18, 1981.
At the final hearing, Petitioners called Emily Millett, William R. Wilson, George Anderson, Richard Merrick, Lansing K. Johansen and Arthur James Pla as their witnesses. In addition, the following Petitioners testified in their own behalf: Robert H. McDermott, Dana McDermott, Joseph M. Ehrlich, Stephanie Ehrlich, Betty Ehrlich, Curt McKenzie, Kris McKenzie and Judy R. Ford.
Petitioners offered Petitioners' Exhibits B, C, D, E and F, which were received into evidence. Respondent called John Muldoon, Aquilina Howell and Conway McGee as its witnesses. Respondent offered Respondent's Exhibits 1 and 3 through 10, inclusive, which were received into evidence.
ISSUES
The issues in this proceeding involve Petitioners' challenge, pursuant to Section 120.54(4), Florida Statutes, of the proposed adoption by the School Board of school attendance boundaries and attendant policy changes for implementation beginning with the 1981-82 school year. Initially, Petitioners challenged both the proposed zones for high and elementary schools. However, during the pendency of this proceeding, Respondent withdrew the proposed attendance zone changes for elementary schools, thereby rendering issues related thereto moot, and leaving only the high school boundaries for further consideration. In summary, Petitioners claim that the proposed rule amendments, including maps prepared in conjunction therewith, are an invalid exercise of delegated legislative authority by virtue of the School Board's failure to comply with procedural and substantive requirements of Chapter 120, Florida Statutes. Petitioners allege that deficiencies exist in procedures utilized by the School Board prior to publication of its notice of intent to adopt the proposed rules, in the advertisements and economic impact statement prepared in conjunction with the proposed rule amendments, and in the allegedly arbitrary and capricious nature of the Proposed changes from current attendance boundaries. Petitioners further claim that the School Board's announced intention to utilize student race as a factor in drawing attendance zones is unconstitutional and beyond the School Board's delegated legislative authority.
The Respondent contends that each of the Petitioners is without standing to maintain this rule challenge pursuant to Section 120.54(4), Florida Statutes; that the preadvertisement procedures followed by the School Board are not jurisdictional insofar as this present proceeding is concerned; that any deficiencies in the legal notices or economic impact statement constitute harmless error; and that the proposed rules are a valid exercise of legislative authority delegated to it in Sections 230.23(4) and 230.232, Florida Statutes.
FINDINGS OF FACT
The School Board of Leon County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes, and is charged by law with direction and control of grades Kindergarten through 12 for all public schools in Leon County, Florida. Respondent is required by statute to promulgate rules and regulations establishing attendance zones for grades Kindergarten through 12, and has
proposed for adoption certain amendments to its existing rules which will have the effect of changing attendance boundaries for middle and high schools located in Leon County, Florida.
On May 5, 1981, the School Board withdrew previously advertised plans to adopt modified attendance boundaries for the 1981-82 school year, but announced its intention to continue its rezoning efforts. The School Board held a workshop meeting to discuss rezoning on May 14, 1981. This meeting was noticed in the legal advertisement section of the Tallahassee Democrat on that same date. Action on rezoning was taken at the meeting, and the meeting was recessed until the evening of May 18, 1981. No formal notice of the recessing of the May 14 meeting or the reconvening of that meeting on May 18 was published in any newspaper.
On May 18, the May 14 workshop was reconvened. At this meeting the public addressed questions to the School Board members and staff. The Board announced at this meeting that it would discuss the matter further at its regular meeting the following night, May 19, 1981, and that the general issue of rezoning was already on the agenda for the May 19 meeting. The School Board also directed the Superintendent to "take administrative steps as are necessary to schedule a special meeting of the Board pursuant to provisions of Section 230.16, Florida Statutes." This reconvened meeting held on the evening of May 18, 1981, was the subject of an article in the May 18, 1981, edition of the Tallahassee Democrat, which carried a news article reporting on rezoning under the headline, "The rezoners are feeling the pressure." This newspaper article included a special separated section entitled "Meeting is Monday," which directed the public's attention to the time and location of the workshop meeting that night.
Toward the end of the regular School Board meeting on May 19, 1981, the School Board recessed and subsequently reconvened to discuss rezoning. The School Board held an extensive discussion on various topics related to rezoning, and responded to questions from the public. Two subsequent meetings were then scheduled. The first was a workshop meeting on rezoning to be held on May 25, 1981, and the second was a meeting scheduled for May 26, 1981, to direct the Superintendent to advertise the proposed modified school attendance boundaries.
On May 20, 1981, in the Special Notice section of the Tallahassee Democrat, an ad appeared noticing a "special meeting" of the School Board at Belle Vue Middle School on May 26, 1981, beginning at 7:00 p.m., to discuss rezoning. On May 21, 1981, in the Legal Advertisement section of the Tallahassee Democrat, an ad appeared noticing a "special emergency meeting" at Bond Elementary School beginning at 5:00 p.m. on May 26, 1981, to deal with rezoning, which notice indicated that the meeting time and place was a rescheduling of the meeting previously set for Belle Vue Middle School. The May 25, 1981, workshop meeting was noticed in a legal advertisement in the Tallahassee Democrat on May 22, 1981. In a news article on rezoning published on Sunday, May 24, 1981, in the Tallahassee Democrat, which article was entitled "Rezoners can't find all the answers," the purpose, times and locations for both the May 25 workshop and the May 26 special emergency meeting were contained in a special section set off from the remainder of the article.
The Petitioners challenging the modification of the high school attendance boundaries in this proceeding testified that they were each present at the May 26 meeting.
At the School Board meeting on May 26, 1981, there were approximately forty to fifty members of the public in attendance. Members of the public addressed the School Board during the meeting. Several modifications were made to the maps and the language of the proposed rule amendments at this meeting.
At the conclusion of the meeting, the Superintendent was directed to initiate in accordance with Chapter 120, Florida Statutes, the adoption of modified school attendance boundaries and associated language changes in as expeditious a fashion as possible.
On June 3, 1981, four legal advertisements pertinent to this proceeding, each entitled "Notice of Intent to Adopt a Rule," appeared in the Legal Notices section of the Tallahassee Democrat. These notices were titled 6GX37-3.02(1) High School; 6GX37-3.02(1) Middle School; 6GX37-3.02(1) Elementary School; and 6GX37-3.02 Assignment of Pupils. Under the economic impact portion of the four advertisements is the phrase, ". . . [p]arents of students who elect to be grandfathered are responsible for transportation and the costs associated with that responsibility."
The maps containing the proposed high school attendance boundaries are Respondent's Exhibits 8(d) High School City Map, and 8(e) High School County Map. The two high school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) High Schools.
By its actions, the School Board proposes to amend Rule 6GX37-3.02(1) to read as follows:
The Establishment of Schools. All public schools operated by the School Board of Leon County, Florida, shall be for its residents and for such other students as may be authorized by the Board and shall be fully desegregated. The School Board shall from time to time promulgate atten- dance zones so that each school will serve those students residing in each such zone. The Board shall also establish student capacities for, and grades served by,
each school in the county, which may be modified by the Board as required. Maps showing the attendance zones applicable to each school, including grades served by each school, shall be maintained in the Office of Student Services and shall be available for public inspection.
The School Board also proposes to amend Rule 6GX37-3.02(2) to add the following provision:
Grandfathering. The following standards shall be for grandfathering certain students, provided that their residence remains unchanged, in order to preserve educational continuity. Once a student has indicated his or her choice, in writing, changes may be made through application to the Board Reassignment Subcommittee.
The Board shall, upon request, allow students who were enrolled in a high school during the 1980-81 school year to remain at that same high school if the
new zones for the 1981-82 school year put them in the attendance zone of a different high school so long as the parents shall be responsible for all
necessary transportation. (Emphasis added).
The School Board is not presently under any federal or state mandate to rezone the school system in Leon County. The School Board is, therefore, performing a purely discretionary function in undertaking its current rezoning effort. Respondent's express purpose in rezoning Leon County high schools for the 1981-82 school year is . . . to make more effective use of school facilities and to seek greater racial balance among the four high schools."
In the preparation of school attendance boundaries the School Board, for statistical purposes, divided Leon County into a large number of small geographical areas called "study areas" or "study zones." The number of students residing in each study area was determined by both race and grade level, and this information was then placed in a computer to establish an accurate baseline of current attendance data for making various enrollment projections. In connection with the proposed zoning changes, the School Board administrative staff attempted to bring current and make as accurate as possible the data used in the rezoing process. Current enrollment figures at the high school level were updated through April 8, 1981.
In making the various projections based upon available data, the School Board, through its consultant, used "cohort survival rates," a student projection technique developed by the Florida Department of Education for use throughout the state by school districts considering modification of school attendance boundaries. It is recognized that, although this projection technique is commonly accepted, it is subject to the normal errors inherent in any such predictive technique.
On February 3, 1981, the School Board adopted five of eight criteria recommended by the Superintendent to be considered in drawing new attendance boundaries. These criteria, although never formally adopted as "rules," were used by community volunteers, staff, consultants, and ultimately the School Board itself in the development of the maps delineating the proposed new attendance boundaries. These criteria are as follows:
* * *
That the concept of neighborhood schools be adhered to in the revision of the attendance areas, but that
non-contiguous attendance areas be allowed where necessary to achieve the desired racial composition.
That natural boundaries be used to define attendance areas insofar as it
is possible, avoiding duplicate transportation service on individual roadways.
That the minority enrollment in any school be not more than 10 percent above or
10 percent below the percent of minority enrollment in that school level in
the county as a whole, excluding Chaires, Concord, Fort Braden and Woodville Elementary Schools.
That rising 5th, 8th and 12th grade students, on request, be permitted to continue in attendance if their resi- dence is placed in another school attendance area, with any needed transportation being provided by the parent and not the School Board (an exception to this rule should be made
for students whose school of atten- dance was changed by the School Board in August, 1980, and transportation be provided at district expense in the event that the attendance areas affecting them are changed this year and the parents desire to have their
children continue to attend the school they are attending in 1980-81).
That the transportation needed to accomplish the desired racial compo- sition of each school be provided in
as efficient and cost effective manner as possible, consistent with Florida Laws and Regulations, and School Board policy on hazardous areas. (Emphasis added).
There are four high schools in Leon County: Leon, Godby, Rickards and Lincoln. Enrollment figures for the four high schools, as of April 8, 1981, are as follows: Leon, 1,690; Godby, 1,430; Lincoln, 1,664; and Rickards, 928.
White students attending each of the four high schools comprise the following percentages of the total student body: Leon, 78 percent; Godby, 64 percent; Lincoln, 73 percent; and Rickards, 49 percent.
The recommended capacities for the high schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Leon, 1,644; Godby, 1,556; Lincoln, 1,704; and Rickards, 1,465.
In designing the proposed attendance boundaries for the 1981-82 school year, the School Board's consultant used a recommended enrollment figure supplied to him by the School Board staff. This recommended enrollment figure was not the same as the physical plant capacity figure. These recommended enrollment figures were, however, closely related to plant capacities, any differences between the two figures being reflective of various other program considerations.
The most reliable prediction of future enrollments at the various high schools, which takes into account the estimated effect of grandfathering under the proposed amendments, reveals that for the first three years in which the proposed school boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various high schools. In addition, under the proposed zone changes, the racial composition of the student
populations at each of the four high schools is projected to be within the 10 percent criteria established by the School Board by March of 1984. Rickards is the only high school in Leon County which does not presently meet the plus-or- minus 10 percent racial composition criteria. However, as indicated above, according to the School Board's projections, Rickards should meet that criteria during the 1983-84 school year.
The greater number of students assigned to Rickards under the proposed zoning changes will make use of available and currently unused space, and, because of increased student enrollment, the diversity of course offerings should also increase. This is so because the amount of funds allocated to a given school is directly related to the number of students enrolled. Thus, for an under-enrolled school such as Rickards, fewer funds are generated under the statewide funding formula for that facility, which, in turn, may result in fewer programs being offered to students. There are, in fact, some courses not presently offered at Rickards that are available in other county high schools, due, at least in part, to under-enrollment at Rickards.
The record in this proceeding does not establish with absolute certainty the total number of students either eligible for or expected to exercise the grandfathering option for the 1981-82 school year. However, a poll conducted by the School Board indicates that from 90 percent to 100 percent of students eligible for grandfathering will exercise that option, and estimates of potential school enrollments are partially based on that assumption. In fact, all student petitioners in this proceeding eligible for grandfathering testified that they would take advantage of that option. The reasons for this choice generally dealt with current school activities and friendships, and was consistent with the policy expressed by the School Board "to preserve educational continuity."
The economic impact of the grandfathering provision on parents required to furnish transportation as a result of electing that option was not addressed quantitatively in the School Board's Economic Impact Statement. With regard to this cost factor, the Economic Impact Statement provided that:
Current Board policy provides that bus transportation will be provided by the district if the residence of the parent is more than two miles from the assigned school. None of the proposed rule amendments modify this basic policy; however, the policy changes in 3.02 allow for the "grandfather- ing" of students in certain grade levels subject to the requirement that the parents provide all necessary transportation. To
the extent that a parent voluntarily chooses to assume that responsibility, that parent
may incur associated costs such as gas and oil.
There is no indication in this record that the School Board considered the potential cost and feasibility of providing transportation at School Board expense to those students choosing the grandfather option who live two or more miles from the "grandfathered" school. Testimony at the final hearing estimated transportation costs of $367.20 based upon an average driving distance between a student's home and school of 5.1 miles (based on the length of the average bus route), full attendance for the full 180 student school days, and a 20 cents- per-mile cost, which is the current state reimbursement rate for travel by
automobile. Naturally, actual transportation costs would vary substantially, depending upon the type of vehicle driven, the number of students transported, the student's actual attendance pattern, carpooling, travel routes, and other associated factors. The parents' responsibility to assume these transportation costs in the event of electing tee grandfathering option is pointed out both in the rule advertisements and the Economic Impact Statement.
The School Board has other existing policies which allow a student to attend a school different from that to which he is assigned based upon the location of his residence. These include the School Board's majority/minority transfer policy and instances in which a student requests to attend a special program at another school which is not available at his assigned school. In all such cases, the School Board requires that the student or his parents provide transportation at their own expense.
The Economic Impact Statement prepared by the School Board in conjunction with the rule adoption process was based upon materials developed by the School Board staff on impact costs associated with rezoning in their areas of administrative responsibility. The Economic Impact Statement itself was based ". . . upon the premise that only those incremental, out-of-pocket costs attributable to the policy revision and rezoning process are included." Previously committed, or "sunk," costs such as salaries and related employee benefits were explicitly excluded from the analysis, although such costs were significant since the rezoning process absorbed a great deal of staff time. Similarly, "opportunity" costs, in the form of benefits foregone by directing district resources to rezoning rather than other goals were specifically excluded from consideration in the Economic Impact Statement. These base assumptions were described in the Economic Impact Statement itself.
Petitioners, Joseph and Piercie Ehrlich, reside in Leon County, Florida, with their two daughters, Stephanie and Betty, who presently attend Lincoln High School. Under the proposed rezoning plan, the Ehrlichs' daughters would be required to attend Rickards High School, unless they choose the grandfather option in order to remain at Lincoln High School. Lincoln High School is located 1.58 miles from the Ehrlich home, and it is approximately 5 miles to Rickards High School from their residence. In the event that the proposed amendments to the school attendance zones are adopted, both of the Ehrlichs' daughters testified that they will exercise the grandfather option in order to continue to attend Lincoln High School.
Petitioners, Robert and Joni McDermott, reside in Leon County, Florida, with their daughter, Dana, who is presently a student at Lincoln High School. The McDermotts' daughter will be required to attend Rickards High School, unless, as she testified, she exercises the grandfather option, should the proposed school attendance zones be adopted. The McDermott residence is located 2 miles from Lincoln High School, and approximately 3.5 to 4 miles from Rickards High School.
Curt and Linda McKenzie reside in Leon County, Florida, with their daughter, Kris, who is a student at Lincoln High School. If the proposed rezoning amendments are adopted, Kris will be required to attend Rickards High School, unless she chooses to remain at Lincoln under the grand fathering provision. The McKenzie residence is located 1.6 miles from Lincoln High School, and approximately 4 miles from Rickards.
A. P. and Judy Floyd reside in Leon County, Florida, with their child, Tracy, who would be entering the 9th grade at Lincoln High School, absent the proposed amendments to the school attendance zones. However, under the proposed plan, Tracy will be required to attend Rickards High School for the 1981-82 school year. Lincoln High School is located 1.6 miles from the Floyd residence, and Rickards High School is located 4.4 miles from their home.
Counsel for both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those findings of fact have not been adopted in this Order, they have been rejected as being either irrelevant to the issues in this cause, or as not having been supported by the evidence.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.54(4), Florida Statutes.
Section 230.23, Florida Statutes, delineates the powers and duties delegated by the Florida Legislature to district school boards. Specifically, Section 230.23, Florida Statutes, contains the following provisions pertinent to the proceeding:
* * *
ESTABLISHMENT, ORGANIZATION, AND OPERATION OF SCHOOLS.--Adopt and provide for the execution of plans for the estab- lishment, organization, and operation of the schools of the district, as follows:
Schools and attendance areas. After considering recommendations of the superintendent, to authorize schools to be located and maintained in those com- munities in the district where they are needed to accommodate, as far as is practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools, and to approve the area from which children are to attend each such school . . . .
* * *
(8) TRANSPORTATION OF PUPILS.--After considering recommendations of the super- intendent to make provision for the transportation of pupils to the public schools or school activities they are required or expected to attend; authorize transportation routes arranged effi- ciently and economically, [and to] provide the necessary transportation facilities and adopt the necessary rules and regulations to insure safety, economy
and efficiency in the operation of all buses, as prescribed in chapter 234. . . .
Further, school boards in Florida are authorized by Section 230.232(1), Florida Statutes,
. . . to provide for the enrollment in a public school in the district of each child residing in such district who is qualified under the laws of this state for admission to a public school and who applies for enrollment in or admis-
sion to a public school in such district. The authority of each such board in the matter of the enrollment of pupils in
the public schools shall be full and complete. No pupil shall be enrolled in or admitted to attend any public school in which such child may not be enrolled pursuant to the rules, regula- tions, and decisions of such board. (Emphasis added).
Section 234.01, Florida Statutes, provides that:
School boards, after considering recommendations of the superintendent, shall provide transportation for each pupil who should attend a public school when, and only when, transportation is necessary to provide adequate educational facilities and opportunities which other- wise would not be available and to transport pupils whose homes are more than a reasonable walking distance as defined by regulations of the state board, from the nearest appropriate school. No state funds shall be paid for the transportation of pupils whose homes are within 2 miles from the nearest
appropriate school. . . . (Emphasis added).
State Board of Education Rule 6A-3.17(6)(a), Florida Administrative Code, requires that local school boards:
. . . designate school bus routes, following consideration of data and recommendations presented by the super- intendent, to provide for students whose homes are two (2) miles or more from school when transportation by
school bus is economical and practicable. (Emphasis added).
Section 120.52(14), Florida Statutes, defines "rule" as:
. . . each agency statement of general applicability that implements, interprets, or prescribes law or policy . . . .
The action of the School Board in proposing for adoption amendments to existing school attendance zones constitutes the making of a rule within the meaning of Section 120.52(14), Florida Statutes. See Polk v. School Board of Polk County, 373 So.2d 960, 961 (Fla. 2 DCA 1979); McGill v. School Board of Leon County, DOAH Case No. 80-775R (July 11, 1980).
Section 120.54(4)(a), Florida Statutes, provides that:
Any substantially affected person
may seek an administrative determination of the invalidity of any proposed rule on the ground that the proposed rule is an invalid exercise of delegated leg is- lative authority.
Petitioners in this proceeding are "substantially affected persons" as required by Section 120.54(4)(a), Florida Statutes, quoted above, and as such, have the requisite standing to maintain this proceeding. See, School Board of Broward County v. Constant, 363 So.2d 859 (Fla. 4 DCA 1978); School Board of Broward County v. Gramith, 375 So.2d 240 (Fla. 1 DCA 1979); McGill v. School Board of Leon County, supra.
Section 120.54(2), Florida Statutes, requires that:
Each agency, prior to the adoption, amendment, or repeal of any rule, shall provide information on its proposed action by preparing a detailed economic impact statement. The economic impact statement shall include:
An estimate of the cost to the agency of the implementation of the pro- posed action, including the estimated amount of paperwork;
An estimate of the cost or the economic benefit to all persons directly affected by the proposed action;
An estimate of the impact of the proposed action on competition and the open market for employment, if applicable; and
A detailed statement of the data
and method used in making each of the above estimates.
* * *
(c) Failure to provide an adequate state- ment of economic impact is grounds for holding the rule invalid . . . [if] the issue is raised in an administrative or judicial proceeding within 1 year of the effective date of the rule to which the statement applies. (Emphasis added)
In Florida-Texas Freight, Inc. v. Hawkins, 379 So.2d 944, 946 (Fla. 1979), the Florida Supreme Court indicated that by enacting Section 120.54(2), Florida Statutes,
. . . the legislature [sought] to promote agency introspection in administrative rule-making. The process of formulating rules and regulations involves an inter- play between social and economic factors and the legislative goals underlying agency action. In order to ensure a comprehensive and accurate analysis of economic factors in this calculus, the legislature has instructed an agency, through section 120.54(2)(a) to prepare an explicit statement delineating the
short- and long-term economic consequences of a proposed rule. Such a procedure directs agency attention to certain key considerations and thereby facilitates informed decision-making. It also serves the salutary purpose of opening up the administrative process to public scrutiny.
In Agrico Chemical Co. v. State, 365 So.2d 759 (Fla. 1 DCA 1978), the court held that:
Given a proposed rule within the general area of regulation delegated by the Legislature to an agency, the test of arbitrariness is the same for the proposed rule as it would be for a statute having the same effect. Fla. Citrus Comm'n v.
Owens, 239 So.2d 840, 848 (Fla. 4th DCA
1969), cert. denied, 242 So.2d 873 (Fla.,
1971).
Rule making by an agency is quasi- legislative action and must be considered with deference to that function. In Florida Beverage Corporation v. Wynne,
306 So.2d 200 (Fla. 1st DCA 1975) this Court said:
'Where the empowering provision of
a statute states simply that the agency may make such rules and regulations as may be necessary to carry out the provi- sions of this act; the validity of regulations promulgated thereunder will be sustained so long as they are reason- ably related to the purposes of the enabling legislation, and are not arbi- trary or capricious.'
Thus, in a 120.54 hearing, the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule is encom- passed within that grant. The burden is upon one who attacks the proposed rule to
show that the agency, if it adopts the rule, would exceed its authority; that the requirements of the rule are not reason- ably related to the purpose of the enabling legislation or that the proposed rule or the requirements thereof are arbitrary or capricious.
A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Adminis- trative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence as a reasonable person would accept as adequate to support a conclusion.
The requirement that a challenger has the burden of demonstrating agency action to be arbitrary or capricious or an abuse of administrative discretion is a stringent one indeed. However, the degree of such required proof is by a preponderance of evidence . . . Agrico at 762.763.
Section 120.54(4)(c), Florida Statutes, provides, in pertinent part, that a hearing officer in a proceeding challenging the adoption of a rule ". . . may declare the proposed rule wholly or partly invalid
Except as hereinafter provided, it is found that, as a matter of law, adoption of the challenged proposed rules was within the authority granted to Respondent by the Legislature; that the requirements of the proposed rule amendments are appropriate to the ends specified in the enabling legislation; that the rule is reasonably related to the purposes of that legislation; that the requirements of the rule are neither arbitrary nor capricious; and that the School Board either complied with the notice and economic impact requirements of Chapter 120, Florida Statutes, or, to the extent that any minor irregularities appeared of record, there has been no showing that they impaired the fairness of the proceeding. See School Board of Broward County v. Gramith, supra. By providing in Section 230.232(1), Florida Statutes, that the " . . . authority of each [school] board in the matter of enrollment of pupils in the public schools shall be full and complete . . .," the Legislature obviously intended to vest the various boards with broad discretion in establishing local school attendance policies, so long as those policies were consistent with existing statutory and Constitutional requirements. Given the goal of the School Board in redrawing the attendance zones, i.e., to improve racial balance and seek more effective use of school facilities, the evidence of record in this proceeding clearly establishes that the text and maps containing the proposed rule amendments were not arbitrarily or capriciously drawn. Further, it is equally clear that given the not-too-distant history of school systems nationwide, neither the Constitution nor common sense requires school districts to ignore the race of students in the drawing of school attendance boundaries. See, Swann v. Charlotte Mecklenburg Board of Education, 402 US 1, 91 S.Ct. 1267, 1276 (1971). In summary, in fixing the location of high school attendance boundaries, the School Board was faced with a decision involving tensions between competing
social and economic considerations, and their decision in drawing the proposed attendance zones as reflected in the text and maps associated with the proposed rule amendments was within the proper exercise of their discretion, except as hereinafter noted.
As indicated above, Section 234.01, Florida Statutes requires that a school board furnish transportation at school board expense to pupils " . . . whose homes are more than a reasonable walking distance . . . from the nearest appropriate school." The State Board of Education and the School Board of Leon County have determined that it is appropriate pursuant to this legislation to furnish transportation to those students living two (2) miles or more from school. See, Rule 6A-3.17(6)(a), Florida Administrative Code. It is concluded that by using both the qualifying adjectives "nearest" and "appropriate" in identifying schools to which students must be furnished transportation, the Legislature recognized the possibility that a school board might determine that more than one school within its district could constitute an "appropriate" educational placement. In such a case, once the "appropriate" schools are identified, the school district is required to furnish transportation for a student only to that school nearest his or her residence. It should be emphasized that the School Board is not required by law to identify more than one "appropriate" school placement for students residing in that district. In this instance, the School Board was initially faced with two clear policy choices: either leave the high school attendance zones in their present configuration, thereby promoting "educational continuity"; or redrawing the high school attendance boundaries as contemplated by the proposed rules here under consideration, and requiring the high school students whose residences were within the boundaries established in the proposed rules to attend the high school assigned by the rule to that zone. However, in a well-intentioned attempt to attain both "educational continuity" on the one hand, and "greater racial balance" and "more effective use of school facilities" on the other, the School Board has attempted to incorporate elements of each of these considerations by proposing for adoption Rule 6GX37-3.02(2)(e)(i), which allows for the "grandfathering" of existing high school students by allowing them to remain in the school which they have been attending, notwithstanding the fact that the proposed amendments to the high school attendance zones place their residence in a zone assigned to another school.
By including the "grand fathering" option in the proposed rule amendments, the School Board has made a determination that for social and educational reasons, both a high school student's existing school and the school to which he would be reassigned under the plan by virtue of the location of his residence are "appropriate" placements for that student. The School Board is then required, under the terms of Section 234.01, Florida Statutes, to provide free transportation to whichever of the "appropriate" schools that is both two
(2) miles or more from the student's home and nearer to the student's home than any other school which the Board may have deemed "appropriate." Any attempt by the School Board to shift to parents the financial responsibility for transporting students meeting those criteria constitutes an invalid exercise of delegated legislative authority.
The proposed amendment contained in Rule 6GX37-3.02(2)(e)(i) does not, in specific terms, take into account the distance of a student's home to either the "grandfathered" school or the school to which that student would be assigned by virtue of the location of his residence but for the grandfather option. Consequently, it is impossible to strike any specific language contained in the proposed rule pursuant to Section 120.54(4)(c), Florida Statutes, which authorizes a hearing officer to declare a proposed rule "partly invalid."
However, it is specifically held, as a matter of law, that to the extent that proposed Rule 6GX37-3.02(2)(e)(i) might be construed or interpreted to relieve the School Board of its financial responsibility to transport grand fathered high school students living outside a two-mile radius from the grandfathered school, which school is also the nearest school to their residence, the proposed rule constitutes an invalid exercise of delegated legislative authority for the reasons hereinabove set forth.
DONE and ORDERED this 10th day of August, 1981, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings The Oakland Building
2009 Apalachee Parkway
Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 10th day of August, 1981.
COPIES FURNISHED:
George L. Waas, Esquire 1114 East Park Avenue Tallahassee, Florida 32301
Charles A. Johnson, Esquire 2757 West Pensacola Street Tallahassee, Florida 32304
C. Graham Carothers, Esquire
227 South Calhoun Street Tallahassee, Florida 32302
Liz Cloud, Chief
Bureau of Administrative Code 1802 Capitol Building
Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee
120 Holland Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Aug. 10, 1981 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Aug. 10, 1981 | DOAH Final Order | Proposed Leon county school board rule that may operate to relieve the board of transporting ""grandfathered"" students is invlaid. |
