that the Respondent did not follow statutory or regulatory requirements in formulating the proposed rules.
Respondent contends: (1) that the proposed rules are a valid exercise of delegated legislative authority; (2) that there is statutory authority for the proposed rules, and moreover, that the proposed rules are consistent with existing statutory law; (3) that the economic impact statement for the proposed rules satisfies statutory requirements; and (4) that Respondent followed statutory or regulatory requirements in formulating the proposed rules.
The School Board of Leon County, Florida, is an "agency" as defined in Section 128.52(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 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. No 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 Day 26 special emergency meeting were contained in a special section set off from the remainder of the article.
At the School Board meeting on Day 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) 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 middle school attendance boundaries are Respondent's Exhibits 8(a) Middle School City Map, 8(b) Middle School County Map and 8(c) Middle School Killearn Map. The three middle school maps were referenced in the legal advertisement denominated 6GX37-3.02(1) Middle 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 attendance 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:
(e) 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.
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(ii) Middle school students who will be in the eighth grade and elementary students who will be in the fifth grade during the
1981-82 school year shall, upon request, be allowed to remain at the school attended during the 1980-81 school year even though the 1981-82 school attendance zones place them in a new school so long as the parents shall be responsible for all necessary transportation.
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 expressed purpose in rezoning Leon County middle schools for the 1981-82 school year is ". . . to make more effective use of school facilities and to seek greater racial balance among the six middle 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 rezoning process. Current enrollment figures at the middle school level were updated through March 27, 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:
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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 residence 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
attendance 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 composition 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 six middle schools in Leon County: Belle Vue, Cobb, Fairview, Griffin, Nims and Raa. Enrollment figures for the four middle schools, as of March 27, 1981, are as follows: Belle Vue, 668; Cobb, 941; Fairview, 690; Griffin, 769; Nims, 694; and Raa, 1,069. White students attending each of the six middle schools comprise the following percentages of the total student body: Belle Vue, 67.5 percent; Cobb, 76.8 percent; Fairview,
57.27 percent; Griffin, 68.5 percent; Nims, 50.4 percent; and Raa, 80.9 percent. There are so many middle school students currently residing in the Raa attendance area that enrollment at that school has been capped, and 110 students who would have attended Raa are currently attending Cobb.
The recommended capacities for the middle schools in Leon County, based upon the School Plant Survey of Leon District Schools conducted by the Florida Department of Education, are: Belle Vue, 946; Cobb, 938; Fairview, 1110; Griffin, 783; Nims, 888; and Raa, 887.
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.
Among the primary goals of the proposed middle school attendance zone changes were reduction of the number of students attending Raa, due to the large number of students already living in that zone; increasing the number of students attending Belle Vue and Fairview because of their low enrollment in relation to the physical plant capacity of those school facilities; and finally, to improve racial composition at all the middle schools, particularly Fairview, with a view toward compliance with the School Board's plus or minus 10 percent racial composition criteria.
Predictions of future enrollments at the various middle schools show that for each year the proposed boundaries are to be in effect, anticipated enrollments will be within the physical plant capacities of the various middle schools, with the exception of Raa, whose total enrollment will, nonetheless be reduced by about 10 percent. In addition, under the proposed zone changes, the racial composition of the student populations at each of the six middle schools is projected to meet or barely exceed the 10 percent criteria established by the School Board by March of 1984. Fairview, Nims and Raa currently do not meet the plus-or-minus 10 percent racial composition criteria. However, according to the School Board's projections, all middle schools should meet or barely exceed the
10 percent criteria during the 1981-82, 1982-83 and 1983-84 school years.
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, the student petitioner in this proceeding who is eligible for grand fathering testified that he would take advantage of that option because of current school activities and friendships. The School Board recognized the importance of making this choice available to middle school students and, in fact, based its decision to allow grandfathering on the desirability of preserving "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 "grandfathering" 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 the 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.
Fred H. White, Sr., and his wife, Linda, reside in Leon County with their son, Fred H White, Jr.. Fred, Jr. currently attends Cobb Middle School but under the proposed school attendance boundaries would attend Fairview Middle School. The White residence is located approximately 9.2 miles from Fairview and 5.1 miles from Cobb. The Whites' son is currently eligible for district provided bus transportation to Cobb and would be eligible for such transportation to Fairview. Fred, Jr. is eligible to be grandfathered and both he and his parents testified that they would take advantage of that option.
E. Lamar Bailey resides in Leon County, and is the father of Lamar Blair Bailey and Sally Brocke Bailey, both of whom presently live in an area zoned for attendance at Cobb School. Both of the Bailey children would be required to attend Fairview if the proposed rule amendments are adopted. Should the proposed attendance zones be adopted, the Bailey children will be required to travel approximately 14 miles round trip to Fairview, an increase of approximately 3.4 miles over the distance to Cobb.
Petitioners Sunshine Land Development, Inc., Elba, Inc. and Falls Chase Special Taxing District were dismissed as parties to this proceeding at the final hearing for failure to allege facts sufficient to demonstrate standing to maintain an action pursuant to Section 120.54, Florida Statutes.
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
establishment, 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
communities 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.
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(8) TRANSPORTATION OF PUPILS.--After considering recommendations of the superintendent 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 efficiently 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 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.
(Emphasis added).
Section 234.01, Florida Statutes, provides that:
School boards, after considering recommend- ations 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 otherwise 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 superintendent, 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 980, 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 legislative authority.
Petitioners in this proceeding, with the exception of Sunshine Land Development, Inc., Elba, Inc., and Falls Chase special Taxing District, as noted above, 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 proposed 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.
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(c) Failure to provide an adequate statement 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 rulemaking. The process of formulating rules and regulations involves an interplay 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).
Rulemaking 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 provisions of this act; the validity of regulations promulgated thereunder will be sustained so long as they are reasonably related to the purposes of the enabling legislation, and are not arbitrary 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 encompassed 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 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 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 middle 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 middle school attendance zones in their present configuration, thereby promoting "educational continuity"; or redrawing the middle school attendance boundaries as contemplated by the proposed rules here under consideration, and requiring the eighth grade middle school students whose residences were within the boundaries established in the proposed rules to attend the middle 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)(ii), which allows for the "grandfathering" of existing eight grade middle school students by allowing them to remain in the school which they have been attending, notwithstanding the fact that the proposed amendments to the middle school attendance zones place their residence in a zone assigned to another school.
By including the "grandfathering" option in the proposed rule amendments, the School Board has made a determination that for social and educational reasons, a rising eighth grade 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)(ii) 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)(ii) might be construed or interpreted to relieve the School Board of its financial responsibility to transport grandfathered middle 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.
