DALE BARTON, for himself and ) on behalf of here minor children, ) DREW BARTON and PAIGE BARTON, )
vs. ) CASE NO. 81-1638RX
Respondent. )
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 17, 18, 20 and 21, 1981, in Fort Lauderdale, Florida.
For Petitioners: William S. Blatt, Esquire
Garfield & Blatt, P.A.
For Respondent: Edward J. Marko, Esquire and
Edward G. Stephany, Esquire Marko, Stephany & Lyons
By Petition filed with the Division of Administrative Hearings on June 23, 1981, Petitioners, Dale Barton, for herself and on behalf of her minor children, Drew Barton and Paige Barton, et al. ("Petitioners"), challenge the validity of a rule of The School Board of Broward County, Florida ("School Board" or "Respondent") setting high school attendance boundaries for the 1981-82 school year.
Final hearing in this cause was held on July 17, 18, 20 and 21, 1981, pursuant to an Amended Notice of Hearing dated July 13, 1981.
At the final hearing Petitioners called Jack Shifrel, William McFatter and Robert Lewis as their witnesses. Petitioners offered Petitioners' Exhibits 1 through 9, which were received into evidence. Respondent called Dr. Gordon Foster as its only witness. Respondent offered Respondent's Exhibits 1 through 4, which were received into evidence.
At the conclusion of the final hearing, the parties, through their counsel, waived the requirement of Chapter 120, Florida Statutes, that a final order in this cause be entered within thirty (30) days from conclusion of hearing.
Further, several post-hearing motions to extend the time for filing of proposed findings of fact and conclusions of law were granted by the Hearing Officer.
Each of the parties have filed proposed findings of fact and conclusions of law for consideration by the Hearing Officer in this cause. To the extent that those proposed findings and conclusions are not contained in this final order, they were rejected as not having been supported by the evidence of record, or as having been irrelevant to the issues involved in this proceeding.
The School Board of Broward 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 Broward County, Florida. As of September, 1980, there were approximately 130,000 students enrolled in the Broward County School System, which makes that system one of the largest in the country.
Respondent is required by statute to promulgate rules and regulations that establish attendance zones for grades Kindergarten through 12. During late 1980 and early 1981 the School Board engaged in its annual review of existing attendance boundaries to determine whether changes should be made for the 1981-
82 school year. In performing such reviews and in making necessary recommendations, it is the School Board's policy to consider the following factors: existing overcrowded schools; proper utilization of existing physical facilities; maintaining a unitary school system; student safety; student feeder patterns; transportation costs; establishment of new schools; consolidation of small school attendance areas; and community involvement.
The dispute in this proceeding arises from the School Board's rezoning decision as it relates to four north area high schools: Coral Springs; Ely; Pompano Beach; and J. P. Taravella. In reaching its rezoning decision for these four high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition in the various schools. In order to fully understand the import of the School Board's ultimate decision, and the magnitude of the problem which the Board faced, some historical perspective is necessary.
Prior to 1970, the school system in Broward County was operated on a dual, biracial basis, with separate school facilities for black and white students. In 1970 litigation was commenced in Federal District Court which resulted in the School Board being ordered to commence efforts to establish a "unitary" school system. The Board's proposal to close Dillard High School in Fort Lauderdale and Ely High School in Pompano Beach, both of which were predominantly black, was rejected by the Federal Court. Instead, the School Board was ordered to redraw attendance zones in such a fashion as to assure the operation of these schools as racially integrated facilities. Although Ely High School was closed for a time due to inadequate physical facilities, it was later reopened. The Federal District Court subsequently relinquished jurisdiction in the desegregation litigation on July 31, 1979.
In an attempt to continue compliance with the Federal Court directive to maintain a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to maintain approximately the same percentage of minority enrollment in its high schools as existed at the time the Federal Court relinquished jurisdiction in 1979. The School Board's policy in this regard is based on the assumption that the "unitary" status of the school system as it existed in 1979 met with Federal Court approval, as evidenced by the order relinquishing jurisdiction.
The dynamic growth of Broward County over the last several years has, however, to some extent complicated the Board's efforts to maintain a "unitary" system. The primary problem in this regard has been a change in the demographic makeup of the school-age population in Broward County. Over the last several years the location of the high-school-age population in Broward County has shifted from the eastern portion of the county to the west. Because the bulk of the high-school-age population has historically resided in the eastern portion of the county, the majority of physical plant facilities had been constructed there. In recent years, however, the western portion of the county has developed rapidly to such an extent that those physical facilities located in that portion of the county are now seriously overcrowded, and the older facilities located in the eastern portion of the county have become "underenrolled," and, therefore, "underutilized." For example, Coral Springs High School, which is located in the western portion of the county, had a student enrollment of 2,168 for the 1976-77 school year; 2,994 students for the 1977-78 school year; 3,406 for the 1978-79 school year; 3,704 for the 1979-80 school year; and, 3,764 students for the 1980-81 school year. The physical plant at Coral Springs High School has a student capacity of 2,283, thereby requiring the School Board to operate Coral Springs High School on double sessions.
As a result of overcrowding at Coral Springs High School, the School Board determined to build a new facility, J. P. Taravella High School, which opened in August, 1981. This new high school, with a student capacity of 1,829, opened in August, 1981, with a total enrollment of 1,228 students, all but seven of whom were reassigned from Coral Springs High School. Taravella High opened under its design capacity because the Board determined not to require students to change schools for their senior year, so that Taravella presently serves only grades 9 through 11.
As a result of the construction and opening of J. P. Taravella High School, Coral Springs High School is no longer on double session. In addition, the percentage of black students attending Coral Springs High School as the result of the reassignment of students to J. P. Taravella High School will actually rise from six percent during the 1980-81 school year to nine percent during the 1981-82 school year.
A complicating factor in the School Board's rezoning decision as it relates to these high schools was the problem of underenrollment at Ely High School and Pompano Beach High School. Ely High School has a physical plant capacity of 1,857, and Pompano Beach High School has a physical plant capacity of 1,921. During the 1979-80 school year, there were 1,172 students enrolled at Ely High School, and 1,793 enrolled at Pompano Beach High School. For the 1980-
81 school year there were 1,430 students enrolled at Ely and 1,634 students enrolled at Pompano Beach High School.
During the 1980-81 school year, the student population of Ely High School was 53 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year. Blacks comprised
14 percent of the student population at Pompano Beach High School during the 1980-81 school year, and that percentage fell only one percent under the school attendance zones being challenged in this proceeding.
As previously indicated the population of the western portion of Broward County has markedly increased over the last several years. Most of the increase in school-age population in the western portion of the county is composed predominantly of white students. The black population in Broward County is concentrated in the eastern portion of Broward County. Consequently, in order to maintain the desired racial composition in the county schools, relieve overcrowded conditions in some of its schools, and, at the same time efficiently utilize the physical facilities of all its schools, it became necessary for the Board to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged.
Petitioners Barton, Mascolo and Tripodi are each residents of the Sunflower-Heathgate section of the City of Tamarac, with children who, under the rule here in dispute, are assigned to Ely High School. Ely High School is located approximately 10-12 miles from the City of Tamarac, while the recently opened J. P. Taravella High School is approximately one and one-half to two miles away.
Petitioners object to their children being assigned to Ely High School when they could more conveniently attend the newly opened J. P. Taravella High School, which is located much closer to their residences. Petitioners object to their children being subjected to a lengthy bus ride twice daily to and from Ely High School, and further assert that the children are unable to participate in after-school extracurricular activities because of the distances from their homes to their assigned schools. Although the School Board furnishes transportation in the form of an "activity bus," Petitioners assert that this mode of transportation is at best unreliable, and is, therefore, an unacceptable substitute for what they consider a more appropriate school assignment.
The record reflects that the Tamarac area in which all Petitioners' residences are located has been zoned to attend Ely High School since approximately 1977. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence for several years. However, J. P. Taravella High School has been in the planning stages for several years, and Petitioners' families had anticipated that upon completion of the new high school their children would no longer have to be bused to attend high school.
In the process of adopting the rule challenged in this proceeding the Board conducted a series of public meetings which were well publicized and, as far as can be determined from the record, properly advertised in accordance with Chapter 120, Florida Statutes. Petitioners submitted no evidence to indicate either any serious insufficiency in the notice procedures utilized by the Board, or any prejudice suffered by Petitioners in this regard.
Finally, prior to adopting the challenged rule, the Board prepared an economic impact statement that, on its face, addressed all the requirements of Section 120.54, Florida Statutes. Although Petitioners disagree with the conclusions contained in the statute, there is no evidence in this record to ever suggest that the methodology used or the conclusions reached in the statement are in any way inaccurate.
CONCLUSIONS OF LAW
The Division of Administrative Hearings has jurisdiction over the parties to and the subject matter of this proceeding. Section 120.56, 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 this 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 communi- ties 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 facili- ties of such schools, and to approve the area from which children are to attend each such school . . . . (Emphasis supplied.)
* * *
(8) TRANSPORTATION OF PUPILS.--After considering recommendations of the super- intendent to make provision for the trans- portation 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 quali- fied under the laws of this state for admission to a public school and who applies for enroll- ment 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 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 person substantially affected by
a rule may seek an administrative determina- tion of the invalidity of the rule on the ground that the rule is an invalid exercise of delegated legislative authority.
Petitioners Most, Shifrel, Bell and Liberto are "subtantially affected persons as required by Section 120.56, 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 pro- vide information on its proposed action by preparing a detailed economic impact state- ment. 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 pro- posed action on competition and the open market for employment, if applicable; and
A detailed statement of the date and method used in making each of the above estimates.
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(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.)
No other named Petitioners adduced any evidence at hearing to demonstrate their "substantial interests," and, accordingly, those Petitioners are dismissed as parties to this proceeding.
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 Legi- slature to an agency, the test of arbitrari- ness 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 regula- tions 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, . . . the hearing officer must look
to the legislative authority for the rule and determine whether or not the proposed rule is is encompassed within that grant. The burden is upon one who attacks the . . . rule to show that the agency, if it adopts the rule, would exceed its authority; that the require- ments of the rule are not reasonably related to the purpose of the enabling legislation or
that the . . . 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. Administra-
tive discretion must be reasoned and based upon competent substantial evidence. Com- petent 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 adminis- trative discretion is a stringent one indeed.
However, the degree of such required proof is by preponderance of evidence . . . .
Agrico at 762-763.
It is hereby found that, as a matter of law, adoption of the challenged rule was within the authority granted the School Board by the Legislature; the requirements of the rule are appropriate to the ends specified in the enabling legislation; the rule is reasonably related to the purposes of the 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 any minor irregularities existed, there has been no showing that they impaired the fairness of the proceeding. School Board of Broward County v. Gramith, 375 So.2d 240 (Fla. 1 DCA 1979).
The record in this proceeding clearly demonstrates that the School Board was faced with a critical overcrowding problem at Coral Springs High School that was compounded by underutilization of some facilities in other parts of the county and by both the geographical location and ethnic makeup of the student population. From a theoretically unlimited range of policy choices that might have been selected by the Board to address these problems, the only solution that commanded a majority of the votes of the Board was the rule here under attack. As indicated above, the solution chosen by the Board is supported by sufficient factual underpinnings to satisfy the requirements of Section 120.56, Florida Statutes. This is not to say, however, that the plan chosen was the only possible solution to the problem perceived by the Board and its staff. The Board's choice represents a permissible exercise of discretion vested by the Legislature--not in the Division of Administrative Hearings or the judiciary-- but in the various elected school boards. As indicated by the Court in Dept. of Health and Rehabilitative Services v. Framat Realty, Case No. AB-496 (Fla. 1 DCA, Nov. 18, 1981) persons objecting to the exercise of agency discretion under these circumstances " . . . have their proper remedy in the representative and politically responsive branches, the legislative or executive, but not in the judiciary, nor in Section 120.56 rule challenges before a hearing officer."
Petitioners having failed to demonstrate that the challenged rule exceeds the School Board's statutory authority, or that the contents of the rule are arbitrary or capricious the relief sought by Petitioners is hereby DENIED.
DONE AND ORDERED this 8th day of January, 1982, in Tallahassee, Florida.
WILLIAM E. WILLIAMS
FILED with the Clerk of the Division of Administrative Hearings this 8th day of January, 1982.
William S. Blatt, Esquire Garfield & Blatt, P.A.
Edward J. Marko, Esquire and Edward G. Stephany, Esquire Marko, Stephany & Lyons
