vs. ) CASE NO. 81-2111RX
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 October 6, 1981, in Fort Lauderdale, Florida.
Ellis Rubin Law Offices, 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 August 26, 1981, Petitioners, Emma and Francis Gongaware, et al. ("Petitioners"), challenge the validity of a rule of the School Board of Broward County ("School Board" or "Respondent") setting high school attendance zones for the 1981-82 school year.
Final hearing in this cause was held on October 6, 1981, pursuant to an Amended Notice of Hearing dated September 17, 1981.
At the final hearing Petitioners called Joan Llewellyn, Elizabeth Swope, Jerry Wynn, Carl Belshaw, Betty Phelan, Emma Gongaware and Robert Lewis as their witnesses. Petitioners offered petitioners' Exhibits A through E, which were received into evidence. Respondent called no witnesses, but offered Respondent's Exhibits A through D, which were received into evidence.
The parties stipulated that the testing of Jack Shifrel, William McFatter, Robert Lewis, Thomas Evans, Marg Kemper, Norman Swigler and Dr. Gordon Foster, contained in the transcript of the hearing in DOAH Case Numbers 81-1596R and 81- 1638R be incorporated in the record in this proceeding.
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 period 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; maintenance of 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 three north area high schools: Cooper City, Dillard and Western. In reaching its rezoning decision for these three high schools, the School Board was concerned primarily with the existence of overcrowded schools, underutilized physical facilities and the problem of racial composition of the student bodies 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," racially integrated school system. 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 establish a "unitary" school system, the School Board has prudently determined, to the maximum extent possible, to attempt 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 the required "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, Cooper City High School, which is located in the western portion of the county, had a student enrollment of 2,999 for the 1977-78 school year; 3,068 students for the 1978-79 school year; 3,133 for the 1979-80 school year; and 3,282 for the 1980-81 school year. The physical plant at Cooper City High School has a student capacity of 2,097, thereby requiring the School Board to operate Cooper City High School on double session in order to accommodate the burgeoning enrollment.
As a result of overcrowding at Cooper City High School the School Board determined to build a new facility, Western High School, which opened in August, 1981. This new high school, with a student capacity of 1,848, opened in August, 1981, with a total student enrollment of 858 students below its designed capacity, all of whom were reassigned from Cooper City High School.
Western 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 Western High School, Cooper City High School is no longer on double session. In addition, the percentage of black students attending Cooper City High School as the result of the reassignment of students to Western High School, actually rose from three percent during the 1980-81 school year, to four 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 under-enrollment at Dillard High School. Dillard High School has a physical plant capacity of 2,500, which is located in the eastern portion. During the 1979-80 school year, there were 2,159 students enrolled at Dillard High School. For the 1980-81 school year there were 2,184 students enrolled at Dillard.
During the 1980-81 school year, the student population of Dillard High School was 67 percent black, and, under the rule being challenged in this cause, that percentage remained the same for the 1981-82 school year.
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 Beard to make some extremely difficult policy choices. The choice ultimately made by the Board is reflected in the rule here being challenged.
Petitioners Llewellyn and Swope are each residents of Broward County with children who, under the rule here in dispute, were assigned to Dillard High School. Dillard High School is located approximately fifteen miles from the Llewellyn home, while the recently opened Western High School is approximately one mile from their home. Western High School is located approximately two miles from the Swope home, while Dillard High School is about fourteen miles away.
Petitioners object to their children being assigned to Dillard High School when they feel they could more conveniently attend the newly opened Western High School, which is located much closer to their residences. Petitioners also object to their children being subjected to a lengthy bus ride twice daily to and from Western 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 area in which all Petitioners residences are located has been zoned to attend Dillard High School for some time. Consequently, the rule being challenged in this proceeding does not change the school assignments for these families from that which has been in existence in prior years. However, Western 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.
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 schoolboards. 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 establish- ment, organization, and operation of the schools of the district, as follows:
Schools and attendance areas.-- After considering recommendations of the superintendent, to authorize schools to
be located and maintained in those com- munities in the district where they are needed to accommodate, as far as is practicable and without unnecessary expense, all the youths who should be entitled to the facilities of such schools, and to approve the area from which children are to attend each such school . . . .
(Emphasis added).
* * *
(8) TRANSPORATION OF PUPILS.-- After considering recommendations of the super- intendent to make provision for the transportation of pupils to the public schools or school activities they are required or expected to attend; authorize transportation routes arranged eff- iciently 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 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 adopting 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 Leon 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
determination of the invalidity of the rule on the ground that the rule is
an invalid exercise of delegated legis- lative authority.
Petitioners Llewellyn and Swope are "substantially 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 240 (Fla. 1 DCA 1979); McGill v. School Board of Leon County, supra. No other named Petitioners adduced sufficient evidence at the 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 Legislature to an agency, the test of arbitrariness is the same for the proposed rule as it would be for a statute having the same effect. Fla. Citrus Comm'n v.
Owens, 239 So.2d 840, 848 (Fla. 4th DCA 1969),
cert. denied, 242 So.2d 873 (Fla., 1971).
Rule making by an agency is quasi- legislative action and must be considered with deference to that function. In Florida Beverage Corporation v. Wynne,
306 So.2d 200 (Fla. 1st DCA 1975) this Court said:
'Where the empowering provision of
a statute states simply that the agency may make such rules and regulations as may be necessary to carry out the provi- sions of this act; the validity of regulations promulgated thereunder will be sustained so long as they are reason- ably related to the purposes of the enabling legislation, and are not arbi- trary or capricious.'
Thus, . . ., 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 . . . 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 . . . rule or the requirements thereof are arbitrary or capricious.
A capricious action is one which is taken without thought or reason or irrationally. An arbitrary decision is one not supported by facts or logic, or despotic. Adminis- trative discretion must be reasoned and based upon competent substantial evidence. Competent substantial evidence has been described as such evidence 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.
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; and, that the requirements of the rule are neither arbitrary nor capricious. As indicated by the Court in Polk v. School Board of Polk County, 373 So.2d 960, 962 (Fla. 2 DCA 1979):
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 exer- cise of their discretion.
Petitioners' primary objection to the challenged high school attendance zones in this case is that their children have been bused for several years, and are now being deprived of an opportunity to attend a new school located in some instances within walking distance from their homes. There is, however, no legal requirement that children attend the school closest to their home. In fact, one Florida court has held that, 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." School Board of Orange County v. Blackford, 369 So.2d 689, 691 (Fla. DCA 1979).
The record in this proceeding clearly demonstrates that the School Board was faced with a critical overcrowding problem at Cooper City High School that was compounded by under-utilization 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 chosen 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 contests 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.
Ellis Rubin Law Offices, P.A.
Edward J. Marko, Esquire and Edward G. Stephany, Esquire Marko, Stephany and Lyons 1040 Bayview Drive, Suite 322
