STATE OF FLORIDA
DIVISION OF ADMINISTRATIVE HEARINGS
MICHELLE MCGILL, a minor, by and ) through her next friends, Jack H. ) McGill and Debra McGill, his wife, ) and JACK H. MCGILL and DEBRA MCGILL)
individually, and all others ) similarly situated, DAVID UMBERGER,) LEE RANDELL ROGERS, GINGER FRANK, )
etc., et alii, collectively known ) as CONCERNED NEIGHBORS FOR )
EDUCATION, )
)
Petitioners, )
)
vs. ) CASE NO. 80-775RP
) 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 June 10 and 11, 1980, in Tallahassee, Florida.
APPEARANCES
For Petitioners: Mary Lee Sweet, Esquire
Brian S. Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
For Respondent: Charles A. Johnson, Esquire
2757 West Pensacola Street Tallahassee, Florida 32304
By petition filed with the Division of Administrative Hearings on April 25, 1980, Petitioners challenged the validity of the School Board of Leon County's Proposed Rule Gx37-3.02, pursuant to the provisions of Section 120.54(4), Florida Statutes. Thereafter, by Order dated May 2, 1980, the undersigned Hearing Officer was assigned to conduct the formal hearing herein. By Notice of Hearing dated May 8, 1980, final hearing in this cause was scheduled for May 27 and 28, 1980.
Thereafter, by Motion to Dismiss dated May 14, 1980, Respondent moved to dismiss the petition on the grounds that designation by Respondent of school attendance zones did not constitute a "rule" within the meaning of Chapter 120, Florida Statutes, and that the Petitioners failed to allege facts sufficient to demonstrate that they were "substantially affected" so as to enable them to contest the validity of the proposed agency action. By Order dated May 27,
1980, Respondent's Motion to Dismiss was granted, in part, and Petitioners were allowed to and included June 3, 1980, in which to file an amended petition.
An Amended Notice of Hearing was issued on May 27, 1980, scheduling final hearing in this cause for June 10 and 11, 1980, presupposing that Petitioners would file an amended petition. An amended petition was thereafter filed, and Respondent again moved to dismiss on the grounds that Petitioners lack standing to maintain this proceeding pursuant to Section 120.54(4), Florida Statutes, which motion was taken under advisement and will be ruled upon in this Order.
At the final hearing in this cause, Petitioners called Joan Umberger, Dr. William Piotrowski, Dr. Mickey L. Burnim, Richard Matus, Dr. Donald W. Johnson, Dr. N. E. Feen, and Roger Englert as their witnesses. Petitioners offered Petitioners' Exhibits 1 through 27, inclusive, each of which was received into evidence. Respondent called Arthur Pla, Conway McGee, Roger Englert, Dr.
William Piotrowski, and Dr. Donald W. Johnson as its witnesses. Respondent offered Respondent's Exhibits 1 through 11, 13 and 14, which were received into evidence. In addition, the parties offered Joint Exhibits Numbers 1 through 10, which were received into the record in this proceeding.
FINDINGS OF FACT
The School Board of Leon County, Florida ("Respondent") 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 Rule Gx37-3.02, which establishes 1980-1981 school attendance zones for public school students in Leon County, Florida. Respondent published notice of its intent to adopt Rule Gx37-3.02 in the April 12, 1980, edition of the Tallahassee Democrat. In advertising its intent to adopt the proposed rule, insofar as relevant to this proceeding, Respondent indicated that attendance zones ". . . of several elementary schools are being examined for possible rezoning to reduce overcrowding and to eliminate underutilization." The proposed rule would modify attendance zones for the following Leon County elementary schools: Astoria Park, Riley, Ruediger, Sabal Palm and Kate Sullivan. The proposed attendance zones would also have some impact on students currently attending Carolyn Brevard. In its advertising notice Respondent listed Sections 230.22(2) and 230.23(4), Florida Statutes, as authority for adoption of the proposed rule.
Section 230.22(2), Florida Statutes, empowers Respondent to:
. . . adopt such rules and regulations to supplement those prescribed by the state board as in its opinion will contribute to the more orderly and efficient operation of the district school system.
Section 230.23(4)(a), Florida Statutes, authorizes Respondent to "[a]dopt and provide for the execution of plans for the establishment, organization, and operation of the schools of the district . . .," and further, after considering recommendations of the superintendent of schools concerning attendance areas:
. . . to authorize schools to be located and maintained in those communities in the
district where they are needed to accommodate, as far as 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.
Although not cited by Respondent in its advertising notice as authority for adoption of the proposed rule, Section 230.232(1), Florida Statutes, provides that:
The school boards of the several districts are hereby authorized and directed to provide for the enrollments 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 admission 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, regulations, and decisions of such board.
Section 230.232(2), Florida Statutes, also not cited in Respondent's public notice, provides that:
In the exercise of authority conferred by subsection (1) upon the school boards, each such board shall provide for the enrollment of pupils in the respective public schools located within such district so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, education and general welfare of such pupils. In the exercise of such authority the board shall
prescribed school attendance areas and school bus transportation routes and may adopt such reasonable rules and regulations as in the opinion of the board shall best accomplish such purposes. The school boards shall prescribe appropriate rules and regulations to implement the provisions of this subsection and other applicable laws of this state and to that end may use all means legitimate, necessary and proper to promote
the health, safety, good order, education, and welfare of the public schools and the pupils enrolling therein or seeking to enroll therein. In the accomplishment of these
objectives the rules and regulations to be prescribed by the board may include, but be not limited to, provisions for the conduct of such uniform tests as may be deemed necessary or advisable in classifying the pupils according to intellectual ability and scholastic proficiency to the end that there will be established in each school within the district an environment of equality among pupils of like qualifications and academic attainments. In the preparation and conduct of such tests and in classifying the pupils for assignment to the schools which they will attend, the board shall take into account such sociological, psychological and like intangible social scientific factors as will prevent, as nearly as practicable, any condition of socio-economic class consciousness among the pupils attending any given school in order that each pupil may be afforded an opportunity for a normal adjustment to his environment and receive the highest standard of instruction within his ability to understand and assimilate. In designating the school to which pupils may be assigned there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil, the available facilities and teaching capacity of the several schools within the district, the effect of the admission of new students upon established academic programs, the effect of admission of new pupils on the academic progress of the other pupils enrolled in a particular school, the suitability of established curriculum to the students enrolled or to be enrolled in a given school, the adequacy of a pupil's academic preparation for admission to a particular school, the scholastic aptitude, intelligence, mental energy or ability of the pupil applying for admission and the psychological, moral, ethical, and cultural background and qualifications of the pupil applying for admission as compared with other pupils previously assigned to the school in which admission is sought. It is the intention of the legislature to hereby delegate to the district school boards all necessary and proper administrative authority to prescribe such rules and regulations and to make such decisions and determinations as may be requisite for such purposes.
The 1980-1981 enrollment in the elementary schools of Leon County, Florida, is projected to be approximately 10,404 students, excluding those
elementary students participating in special programs. Of this total, the proposed rule would require an estimated 262 elementary school pupils to change schools for the 1980-1981 school year. Petitioners are a group of parents and children residing in the affected attendance areas who will be required to change schools if the proposed rule is adopted.
Respondent proposes to modify its current attendance zones by shifting three study areas to new schools. If the proposed rule is adopted, Study Area 0360 will be moved from Sabal Palm Elementary to Astoria Park Elementary; Study Area 0460 will be moved from Sabal Palm Elementary; Study Area 0460 will be moved from Sabal Palm Elementary to Riley Elementary; Study Area 2365 will be moved from Kate Sullivan Elementary to Ruediger Elementary. Petitioners reside within Study Area 0460, and would be transferred under the proposed rule from Sabal Palm Elementary to Riley Elementary.
The closest school to Study Area 0460, where Petitioners reside, is Astoria Park Elementary. Four of Respondent's elementary schools are closer to Study Area 0460 than Riley Elementary, where Petitioners will attend if the proposed rule is adopted. Study Area 0460 was rezoned in 1975 so as to shift Petitioners from Astoria Park Elementary, the school closest to their homes, to Sabal Palm Elementary, where they currently are enrolled.
Respondent challenges Petitioner's standing to contest the validity of the proposed attendance boundaries, and, alternatively, contends that adoption of the proposed attendance boundaries is within Respondent's statutory authority under Sections 230.23(4) and 230.232, Florida Statutes.
In support of their contention that they are "substantially affected" by the proposed rule in order to maintain this action pursuant to Section 120.54(4), Florida Statutes, Petitioners allege that:
[They] attend the public schools of [Leon County], which are under the direction and control of the respondent . . . and [are] regulated by rules and regulations concerning public school zones promulgated by
respondent. . . .
Petitioners are entitled to an orderly and effective educational program which is not arbitrarily and unreasonably disturbed and disrupted. The proposed rule arbitrarily disrupts petitioners' educational progress by moving them to a different and less academically advantageous school facility and program.
The proposed rule will disrupt the educational progress of petitioner children to their substantial detriment by transferring them to a school (Riley Elementary) which produces students who score persistently lower on the Statewide Student Assessment Tests (SSAT) than students from the school (Sabal Palm Elementary) petitioners currently attend. On the SSAT tests administered in October, 1979, Riley was designated as one of four elementary schools in the district which failed to meet
the composite student performance criteria in mathematics, writing, and reading at the fifth grade level; on the same test, Sabal Palm fifth graders tied for second in mathematics, tied for first in writing, and ranked fourth in reading when compared with other district schools.
The proposed rule will disrupt and adversely affect the educational progress of petitioner children by assigning them to a school (Riley) which produces students who demonstrate less proficiency on the Comprehensive Tests of Basic Skills than those students from the school (Sabal Palm) petitioners now attend.
Although students at Sabal Palm and Riley schools show little difference in attainment
of basic skills of reading, language, and mathematics when measured at the first grade level, by fifth grade the students at Riley are performing the basic skills at approximately a grade level lower than students at Sabal Palm. The academic progress of petitioner children will be substantially slowed and adversely affected by transferring them from a school which stimulates performance at or above grade level norms to a school whose program is geared to lower levels of attainment.
The rule as proposed requires an estimated 262 public elementary students, including petitioner children, to leave the school and the educational program in which they are now enrolled while the remaining 10,142 elementary students are not required to move.
Respondent is not required by court order to carry out this rezoning.
The proposed rule contains no "grandfather" clause or exemption which would prevent its application to petitioners.
The proposed rule will operate unequally and arbitrarily on petitioners by requiring them to change schools while others similarly situated are not so required.
The proposed rule violates petitioners' right to equal protection under Article I, section 2 of the Florida Constitution and Amendment XIV of the United States Constitution.
Section 229.57, Florida Statutes, establishes a statewide student assessment program, one of the purposes of which is to assess how well districts and schools are meeting state goals and minimum performance standards. Respondent administers two tests in elementary schools which measure mastery of basic skills. The Florida Statewide Student Assessment Tests, commonly know as "SSAT", are administered in October of each year to all third and fifth grade
students not participating in exceptional education programs. Skills tested on the SSAT are reading, writing and mathematics. On the SSAT, schools with a composite student performance score below 70 are reported as below minimum standards in those areas tested. The 1980 SSAT results show a composite score for both Riley Elementary and Sabal Palm Elementary in excess of 70 in all areas tested at the third grade level. At the fifth grade level, Riley Elementary's composite scored were below 70 in all three areas, while composite scores of Sabal Palm Elementary students were among the top scores in the Leon County School District.
The Comprehensive Test of Basic Skills ("CTBS") is administered by Respondent to students in the regular school program in grades one through five in the Spring of each school year. The CTBS measures achievement in reading, language and mathematics. On the 1979-1980 CTBS, both Riley Elementary and Sabal Palm Elementary students exceeded national norms at the first and third grade levels. At fourth and fifth grade levels, however, Sabal Palm Elementary students continued to perform at or above national norms, while Riley Elementary students dropped well below these norms. At the fifth grade level, Riley Elementary students performed a full grade level or more lower than Sabal Palm Elementary students in all areas tested.
Testing data compiled over a five-year period indicate a pattern of comparable performance of basic skills at lower grade levels at both Riley Elementary and Sabal Palm Elementary. However, at the fourth and fifth grade levels, the test scores of Riley Elementary students are consistently lower than those obtained by Sabal Palm Elementary students.
There exist recognized non-school variables which affect student performance on the SSAT. These variable are: percentage of students eligible for free or reduced-price lunches; percentage of students' families with some amount of college education; percentage of students' families whose head of household is employed in a white-collar occupation; percentage of students who are members of minority groups; percentage of black minority students; and percentage of students with Spanish has a native language. If accepted as accurate, these variables should affect test scores at all grade levels. However, as noted above, standardized test-score results at the first grade level indicate Sabal Palm Elementary and Riley Elementary students functioning at about the same level, whereas test scores obtained at later stages in their elementary school tenure indicate a drop-off in performance by Riley Elementary students. These test score results indicate that the instructional program at Riley Elementary School, for some reason not entirely clear from the record in this proceeding, is not meeting state goals and minimum performance standards as well as the program at Sabal Palm Elementary.
Section 120.52(14), Florida Statutes, defines "rule" as ". . . each agency statement of general applicability that implements, interprets, or prescribes law or policy . . ." In Polk v. School Board of Polk County, 373 So.2d 960, 961 (2nd DCA Fla. 1979), the Court refused to invalidate the restructuring of high school attendance zones for failure of the school board to submit an economic impact statement. In the course of its decision, however, the Court specifically pointed out that "[b]y definition the action of the school board in adopting the attendance plan constituted the making of a rule." Id. at 961. Accordingly, Rule Gx37-3.02, as proposed by Respondent, is a rule within the meaning of Section 120.52(14), Florida Statutes.
Section 120.54(4), 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 legislative authority.
Section 120.52(10)(b), Florida Statutes, defines "party" as:
Any . . . person who, as a matter of constitutional right, provision of statute, or provision of agency regulation, is entitled to participate in whole or in part in the proceeding, or whose substantial interests will be affected by proposed agency action, and who makes an appearance as a party. (Emphasis added).
Section 230.232(2), Florida Statutes, quoted fully above, requires that in the course of setting school attendance zones ". . . there shall be taken into consideration the request or consent of the parent or guardian or the person standing in loco parentis to the pupil. . . ." Thus, the interests of parents, and through them, their school-age children, must be considered by Respondent in the context of any proposed changes of school attendance zones.
In School Board of Broward County v. Constant, 363 So.2d 859 (4th DCA Fla. 1978), the school board, after holding a series of public hearings, established school attendance lines, and several parents and school children filed complaints in circuit court to set aside the board's action. The school board moved to dismiss the complaint on the grounds that the sole remedy available for parents and school children to contest the Board's action was by appeal to the District Court of Appeals, pursuant to Chapter 120, Florida Statutes. The trial court denied the board's motion to dismiss and an appeal was taken. One of the contentions advanced by the parents and school children on appeal was that even if Chapter 120, Florida Statutes, were applicable to the decision of the school board in adopting the school attendance lines, the parents and children were not "parties" to that decision, and would not, therefore, have standing to pursue appellate review under Chapter 120. In reversing the decision by the trial court, the District Court of Appeal held, in part, that:
. . . we reject appellees' contention that they are not parties within the meaning of Section 120.52(10). On the contrary, appellees fit the description of any person who, as a matter of agency regulation, have substantial interests which will be affected by the proposed agency action. Such a person is a party within the meaning of the [Administrative Procedure] Act. Thus, appellees are entitled to be heard but via the Administrative Procedure Act and not by resort to collateral action in the Circuit Court.
In Polk v. the School Board of Polk County, supra, several members of a group known as "Concerned Citizens" opposed the restructuring of high school attendance zones because the proposed plan would force their children to move to a school further from their home than the school they had been attending, and asserted that such a change ". . . was an unwarranted disruption of their children's school lives and . . . would be the third or fourth such disruption."
373 So.2d at 961. In the course of its opinion, the Polk court pointed out that the "[a]ppellant represents a group known as Concerned Citizens, South Lakeland, who are adversely affected because the new attendance lines will require their children to attend a different school." Id. (Emphasis added).
CONCLUSIONS OF LAW
On the basis of the foregoing factual findings and case authorities it is concluded that the Petitioners herein are so "substantially affected" as to enable them to challenge the validity of Respondent's proposed Rule Gx37-3.02. In reaching this conclusion, the Hearing Officer is not unmindful of the decision in School Board of Orange County v. Blackford, 369 So.2d 689 (Fla. 1st DCA 1979). In Blackford, the Court ruled that parents and their children, who would be required to change schools under a plan restructuring school attendance lines in Orange County, did not have standing to test the validity of the proposed change under Section 120.54(4), Florida Statutes. However, the facts involved in Blackford are so materially different from those involved in the instant case as to not control the question of standing in this proceeding. For example, in Blackford, the School Board was under a United Stated District Court mandate to redraw the school attendance lines in the manner complained of, and therefore exercised no discretion in adopting the contested rule. In addition, there was no showing in Blackford that educational opportunities offered at the two schools involved were in any way different. The Blackford court apparently intended to limit its determination to the particular facts involved in that case by the use of qualifying language. For example, the court indicated that ". . . a change from one school to the other . . . may not on its face, standing alone, be considered a hindrance." 369 So.2d at 691. (Emphasis added). In addition, the court also indicated that ". . . this record falls far short of establishing that such parents or children were substantially affected so as to clothe them with the standing to bring about a rule challenge under provisions of Section 120.56, Florida Statutes (1977)." Id. (Emphasis added). Further indication that the Blackford decision was intended to be limited to the peculiar facts before the court in that case is the fact that in a later decision of the First District Court of Appeal, School Board of Broward County
v. Gramith, 375 So.2d 340 (Fla. 1st DCA 1979), a case also involving the redesignation of school attendance zones, the court failed to cite or discuss the Blackford case or the question of standing, but instead reached a decision on the merits of the case.
In their petition Petitioners contend that adoption of the proposed rule constitutes an invalid exercise of delegated legislative authority on the following grounds:
The rule as proposed is arbitrary and without a rational basis in fact, in that:
The rule does not purport to take into account any factors other than physical capacities of school plants, although respondent is charged by law with considering other factors when establishing school attendance zones, such as the effective
instruction of the pupils and their overall educational well-being.
Respondent has exceeded it s its rulemaking discretion pursuant to Section 230.232,
Florida Statutes, in promulgating an unreasonable and arbitrary rule.
Respondent has rejected all previously proposed comprehensive rezoning plans for 1980-81 which were based on identifiable criteria.
The proposed rule purports to eliminate some overcrowding, or underutilization, but it will cause overcrowding or underutilization in other affected school plants.
Implementation of the proposed rule will cost more than is shown in the Respondent's economic impact statement. . . .
The proposed rule violates equal protection guarantees of the Florida and United States Constitutions, specifically Article I, section 2 of the Florida Constitution and Amendment XIV of the United States Constitution.
The proposed rule requires a small, select group of elementary students, including petitioners, to change schools in 1980-81, based allegedly on the need to reduce overcrowding. Other elementary schools, which are presently operating in excess of capacity, will be permitted to maintain the status quo.
The proposed rule requires approximately 2.5 percent of the projected elementary student enrollment for 1980-81 to change schools, while 97.5 percent of the pupils will continue to attend their present schools.
Respondent has failed to cite its specific legal authority for promulgation of the rule, as required by Section 120.54(7), Florida Statutes. Although Respondent cites the general legal authority for rulemaking relating to the establishment of attendance zones, Sections 230.22(2) and 230.23(4), Florida Statutes, it omits mention of Section 230.232, Florida Statutes, the more specific statute which both authorizes and limits rulemaking in this area.
Respondent has failed to comply with the requirements of Section 120.53, Florida Statutes (1979).
At final hearing Petitioners abandoned their claim that Respondent failed to comply with Section 120.53, Florida Statutes.
Respondent has been considering the question of rezoning Leon County elementary schools since 1978. In the course of this consideration, a Citizens Rezoning Committee, whose members were volunteers from the community's private sector, worked on comprehensive rezoning plans for approximately one year. The purpose of the Committee was to investigate alternate proposals for rezoning, and to submit a report and recommendation to Respondent. During the period that the Committee was active, more than twenty different comprehensive plans were devised. Of primary concern to the Committee during its deliberations were the issues of overcrowding, underutilization and racial balance in the various schools comprising the Leon County District School System. The following schools were considered at or over capacity by the Committee: Astoria Park Elementary; Gilchrist Elementary; Oak Ridge Elementary; Sabal Palm Elementary; Sealey Elementary; Kate Sullivan Elementary; and Wesson Elementary. The Committee also concluded that the following schools were underutilized: Apalachee Elementary; Bond Elementary; Brevard Elementary; Pineview Elementary; Riley Elementary; and Ruediger Elementary.
In January 1980 the Committee submitted three alternative proposals to Respondent for consideration. Respondent did not accept any of the three alternative plans suggested by the Committee, but instead chose to propose for adoption the plan here under consideration. Interestingly, however, the three alternative plans proposed by the Citizens Rezoning Committee contained a proposal that Study Area 0460, in which Petitioners reside, be transferred from Sabal Palm Elementary to Riley Elementary. The purpose to be served by this recommendation was to address the problem of overcrowding at Sabal Palm Elementary and the corresponding problem of underutilization and racial imbalance at Riley Elementary.
Under currently effective attendance zones in Leon County, so many students live in the Sabal palm Elementary attendance area that Respondent has imposed an enrollment "cap" on that school. Approximately 170 students living in the Sabal Palm attendance area are currently being bused to Caroline Brevard Elementary. In addition, under current attendance zones, so many students live in the Kate Sullivan Elementary attendance area that that school has also been "capped," so that approximately 27 students living in that school's attendance area are currently attending Hartsfield Elementary.
Students who are attending a school outside their attendance area because of attendance "caps" are transported by regular bus to the school they normally would attend in the absence of such a "cap," and are subsequently transported by shuttle bus to the overflow school. Respondent, of course, provides fro the cost of this transportation from its own budget. Students who are currently being shuttle-bused between Sabal Palm Elementary and Caroline Brevard Elementary lose valuable instructional time because of time lost in making the necessary transportation connections.
In light of currently discernible growth patterns in Leon County it appears likely that if the proposed attendance zones are not adopted, it may become necessary for Respondent to place an enrollment "cap" on Caroline Brevard Elementary because of the number of overflow students enrolled in that school from the Sabal Palm Elementary attendance area.
Traditionally, Respondent has used a variety of methods to address the problems of overcrowding and underutilization of schools in its system. These methods have included: imposition of enrollment caps on overcrowded schools; installation of portable facilities at overcrowded schools; transfers of special programs; construction of new facilities; and rezoning.
Adoption of the proposed attendance zones will eliminate or alleviate problems associated with overcrowding and underutilization of Respondent's schools by eliminating attendance caps currently imposed at Sabal Palm Elementary and Kate Sullivan Elementary for the 1980-1981 school year, and avoiding the potential imposition of an enrollment cap at Carolyn Brevard Elementary School. In addition, shuttle-busing would be eliminated, thereby avoiding loss of student instructional time and saving Respondent approximately
$3,150 in reduced transportation costs. Further, the proposed rezoning would create a better match between currently available space and the number of students at both Riley Elementary and Ruediger Elementary.
As of March 25, 1980, the racial composition of students attending Riley Elementary was 82 percent black to 18 percent white. The racial composition of students attending Astoria Park Elementary as of March 25, 1980, was 14 percent black to 86 percent white. The propose rule would decrease the percentage of white students at Astoria Park Elementary from 86 percent to 82 percent, and would increase the percentage of white students at Riley Elementary from 18 percent to 40 percent. These changes would bring racial composition at Riley Elementary into compliance with guidelines established by the Federal Officer of Civil Rights.
The results from standardized tests administered by Respondent to elementary school students are routinely reported from Respondent's testing division to district level and school level staff. These test results were known to Respondent at the time the proposed attendance zones were under consideration, and there is nothing in the record in this proceeding which establishes that these test results were not taken into consideration during the course of the rule adoption proceedings.
No evidence of record in this proceeding establishes that the proposed attendance zones, which will require Petitioners to move from Sabal Palm Elementary to Riley Elementary, will have any negative effect on Petitioners' long-term academic progress, or on the academic progress of students currently attending Riley Elementary. Although there may exist some disruption in the initial stages of the transfer, these effects will be temporary. Further, there is some evidence that the effect of the student transfers on students already attending Riley Elementary may be to improve their academic performance.
The record in this proceeding establishes that Respondent's elementary school curriculum is essentially uniform system-wide. Respondent uses identical basal textbooks in the areas of reading, language arts and mathematics in all elementary schools, and administers salaries to all personnel on a uniform basis. Respondent allocates its funds internally to the various schools in accordance with statewide funding criteria, based on the number of students in various funding categories. Allocations of school funds are uniform to all schools, with the exception of supplements sometimes issued in the areas of salaries, administrative costs and utilities. These supplements are utilized by Respondent to insure that all schools have common and equivalent funding for instructional programs. All of Respondent's elementary schools provide the same minimum staffing levels for mandated programs. Additionally, Respondent has effectuated uniform standards for student evaluation and promotion which also apply system-wide. Each of these factors was considered by Respondent in proposing Rule Gx37-3.02 for adoption.
In the course of formulating the proposed rule, Respondent prepared an economic impact statement as required by Section 120.54(2), Florida Statutes.
In its economic impact statement, Respondent concluded that:
The economic impact of the adoption of the new elementary zones and the readoption of the middle and high school zones is minimal in light of the overall budgeting responsibilities of the district. The primary cost associated with the new zones will be the refurbishing and transferring of two portable buildings to Astoria Park Elementary School. Maximum total costs to the district directly attributable to these new zones will probably be less than $10,000.
Petitioners presented no evidence in the course of this proceeding that would in any way bring into question either the methodology utilized by Respondent in preparing the economic impact statement, or the conclusions reached therein.
In Agrico Chemical Company v. State, 365 So.2d 1979, 763 (Fla. 1st DCA 1979), the Court held that in a proceeding challenging the validity of a proposed rule pursuant to Section 120. 54(4), Florida Statutes:
. . . the hearing officer must look to the legislative authority for the rule and determine whether or not the proposed rule was encompassed within that grant. The burden is upon one who attacks the proposed rule to show that the agency, it if adopts the rule, would exceed its authority; that the requirements of the rule are not appropriate to the ends specified in the legislative act; that the requirements contained in the rule are not reasonably 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. Administrative 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 Legislature has clearly empowered Respondent to adopt rules and regulations which will ". . . contribute to the more orderly and efficient operation of the district school system." Section 230.22(2), Florida Statutes. In addition, Respondent has been empowered by statute ". . . to approve the area from which children are to attend each . . . school within its jurisdiction."
Section 230.23(4)(a), Florida Statutes. Finally, Section 230.232(2), Florida Statutes, authorizes Respondent to:
. . . provide for the enrollment of pupils in the respective public schools located within [Respondent's] district so as to provide for the orderly and efficient administration of such public schools, the effective instruction of the pupils therein enrolled, and the health, safety, education and general welfare of such pupils. . . .
The record in this proceeding establishes that the provisions of Respondent's proposed rule are appropriate to the ends delineated in the above- quoted statutes; that the requirements of the proposed rule are reasonably related to the purpose of the enabling legislation; that the facts underlying the adoption of the proposed rule are based upon competent substantial evidence; and, finally, that Respondent acted within the statutory grant of authority in proposing the rule for adoption.
Petitioners' contention that the proposed rule violates equal protection guarantees contained in the Florida and United States Constitutions is without merit. As indicated by the Court in School Board of Orange County v. Blackford, supra, although students have a legal right to receive an equal opportunity to obtain a free public education ". . . they do not have a right to be seated at a particular desk in a particular room at a particular school in order to receive such educational exposure." 369 So.2d at 691. Additionally, as indicated by the Court in Polk v. School Board of Polk County, supra:
We can understand the dissatisfaction of parents whose children must make an unwanted change in schools. We might have drawn boundaries different from those which the school board drew. Yet, the reasons given in support of the plan amply demonstrate that the plan was not arbitrarily drawn. The members of the school board faced a difficult decision, but they made it within the proper exercise of their discretion. 373 So.2d at 962.
Finally, Petitioners contend that Respondent's failure to cite Section 230.232, Florida Statutes, as legal authority for promulgating the proposed rule, invalidates the rule-making procedure. In this regard, it has been held that ". . . even though an agency has committed a procedural error [in the course of rule-making] . . . the agency's action [must be affirmed] unless the error renders the ruling unfair or incorrect. . . ." Polk v. School Board of Polk County, supra at 962. Petitioners having made no showing of prejudice by virtue of Respondent's failure to cite Section 230.232, Florida Statutes, in its notice of intention to adopt the proposed rule, such failure is deemed to be harmless error. See, School Board of Broward County v. Gramith, supra.
Both Petitioners and Respondent have submitted proposed findings of fact for consideration by the Hearing Officer. To the extent that those proposed findings of fact are not incorporated 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.
Petitioners having failed to demonstrate that the proposed rule exceeds the statutory authority of the Respondent, or that the contents of the proposed rule are arbitrary or capricious, the relief sought by Petitioners should be, and the same is hereby DENIED.
DONE AND ORDERED this 11th day of July 1980 in Tallahassee, Florida.
WILLIAM E. WILLIAMS
Hearing Officer
Division of Administrative Hearings ROOM 101, Collins Building Tallahassee, Florida 32301
(904) 488-9675
Filed with the Clerk of the Division of Administrative Hearings this 11th day of July 1980.
COPIES FURNISHED:
Mary Lee Sweet, Esquire Brian S. Duffy, Esquire Post Office Box 1170 Tallahassee, Florida 32302
Charles A. Johnson, Esquire 2757 West Pensacola Street Tallahassee, Florida 32304
Ms. Liz Cloud, Chief
Bureau of Administrative Code Room 1802, The Capitol Tallahassee, Florida 32301
Carroll Webb, Executive Director Administrative Procedures Committee Room 120, Holland Building Tallahassee, Florida 32301
| Issue Date | Proceedings |
|---|---|
| Jul. 11, 1980 | CASE CLOSED. Final Order sent out. |
| Issue Date | Document | Summary |
|---|---|---|
| Jul. 11, 1980 | DOAH Final Order | Pet.'s challenge to the proposed rezoning of elementary schools failed to show the rezoning was arbitrary or beyond the authority of resp. |
