STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

PLANTATION RESIDENTS' )

ASSOCIATION, INC., et al., )

)

Petitioner, )

)

vs. ) CASE NO. 82-951RP

) THE SCHOOL BOARD OF BROWARD ) COUNTY, FLORIDA, )

)

Respondent. )

) THEODORE HUBER, for himself and ) on behalf of his minor child, ) SUZAN HUBER, )

)

Petitioner, )

)

vs. ) CASE NO. 82-1129RP

) THE SCHOOL BOARD OF BROWARD ) COUNTY, FLORIDA, )

)

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 May 25 and 26, 1982, in Fort Lauderdale, Florida.

APPEARANCES

For Petitioners: Lawrence Bunin, Esquire

4651 Sheridan Street, Suite 207

Hollywood, Florida 33021

For Respondent: Edward J. Marko, Esquire

1040 Bayview Drive, Suite 322 Post Office Box 4369

Fort Lauderdale, Florida 33338

By petition filed with the Division of Administrative Hearings on April 5, 1982, Petitioners, Plantation Residents' Association, Inc., et al, challenged the validity of a rule of The School Board of Broward County, Florida ("Board" or Respondent") establishing high school attendance zones for the 1982-1983 school year. Subsequently on April 23, 1982, Theodore Huber, et al, filed a petition seeking the same relief. Accordingly, these two cases, bearing Division of Administrative Hearings case numbers 82-951RP and 82-1129RP,

respectively, were consolidated for purposes of the conduct of a final hearing and the entry of this Final Order.

Final hearing was scheduled for May 25 and 26, 1982, by Notice of Hearing dated May 3, 1982.

At the final hearing, Petitioners called Thomas Evans, Mary Kemper, William

1. Higginson, Kathleen Wright, Helen Ackerman, Marie Barrington, Lucille Montequin, Hal Maggied, Janyce Becker, Donald Samuels, Robert A. Lewis, Jack Shifrel and William T. McFatter as their witnesses. Petitioners offered Petitioners' Exhibits 1 through 9, which were received into evidence. The Respondent called William T. McFatter as its only witness, and offered Respondent's Exhibits 1 through 4, each of which was received into evidence.

   
   

   Broadly stated, the dispute in this proceeding centers around Respondent's proposal to reassign certain students residing in East Plantation to attend Dillard High School, and certain other students residing in the Lighthouse Point area to attend Ely High School. Essentially, Petitioners contend that adoption of the proposed attendance areas is arbitrary and capricious, constitutes an invalid exercise of delegated legislative authority and, finally, abridges Petitioners' rights under the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. More specifically, from a procedural standpoint, Petitioners have also contended that Respondent failed to properly advertise notice of its intent to adopt the proposed rules, and also failed to prepare and file an adequate economic impact statement as required by Section 120.54(2)(a), Florida Statutes.

   
   

   Counsel for each of the parties to this proceeding have submitted proposed findings of fact for consideration by the Hearing Officer. To the extend that those proposed findings of fact are not contained in this order, they have been specifically rejected as either irrelevant to the issues involved in this proceeding or as not having been supported by evidence of record.

   
   

   FINDINGS OF FACT

   
   

   1. The School Board of Broward County, Florida, is an "agency" as defined in Section 120.52(1), Florida Statutes. The Board is charged by law with direction and control of all grades Kindergarten through 12 for all public schools in Broward County. The Board is required by statute to promulgate rules and regulations establishing attendance zones for schools under its control.

      
      

   2. During the latter part of 1981 and early 1982, the Board performed a review of attendance areas for the 1981-1982 school year in order to determine whether changes should be made for the 1982-1983 school year. In making these determinations, it is the Board's established policy to consider the following factors: overcrowded schools; improved utilization of present facilities; maintenance of a "unitary school system"; safety for students as pedestrians; feeder patterns; transportation costs; newly established schools; consolidation of small school attendance areas; and, community involvement.

      
      

   3. The dispute in this consolidated proceeding arises from the Board's rezoning decision for the 1982-1983 school year relating to four high schools, Pompano Beach High School; Ely High School; Plantation High School; and Dillard High School.

      
      

   4. On March 30, 1982, at a special meeting, the Board approved its superintendent's school boundary proposal, as reflected in the rule here being

      challenged. On April 12, 1982, an advertisement advising the general public of the proposal appeared in the local newspaper, in compliance with the requirements of Chapter 120, Florida Statutes.

      
      

   5. The effect of the proposed high school boundary changes, insofar as here pertinent, is to remove approximately 125 ninth grade students from Ely High School and to replace them with approximately 72 ninth grade students currently zoned to attend Pompano Beach High, among whom are various of the Petitioners in this proceeding; and further, to remove approximately 81 ninth grade students from Dillard High School and to replace them with approximately

      100 ninth grade students currently zoned to attend Plantation High School, including certain other of the Petitioners in this proceeding.

      
      

   6. One of the Board's primary policy considerations in proposing the challenged rules for adoption is the maintenance of a "unitary school system." Among the policy tools utilized by the Board to maintain what it perceives to be a "unitary school system" is retention of the existing student racial balance at Dillard and Ely High Schools. During the 1981-1982 school year, the student population at Ely High School was 52 percent black, while blacks comprised approximately 72 percent of the student population at Dillard High School. Because of the tremendous increase in the predominantly white population of western Broward County, and the declining school age population of eastern Broward County, where both Dillard and Ely High Schools are located, the Board has a long-standing policy of busing white high school students from the west to maintain the desired racial composition at Dillard and Ely. This problem is not limited to high schools alone. System-wide, approximately 6,000 students are bused from non-contiguous areas in Broward County for purposes of racial integration. Unlike Petitioners in this case, however, approximately 80 percent of those students who are bused are black.

      
      

   7. If the proposed high school boundary changes are adopted, the Board has reasonably estimated that the student population at Dillard High School will remain approximately 72 percent black, while the percentage of black students at Ely High School will increase by approximately 2 percent.

      
      

   8. A further factor in the Board's proposed high school boundary change as it relates to the four high schools involved in this proceeding is the problem of under-enrollment. Ely High School has a realistic program capacity of 1,800 students. However, during the 1981-1982 school year there were only 1,519 students enrolled at Ely. Pompano Beach High School had a student population of 1,456 students for the 1981-1982 school year, despite a student capacity of 1,950. Dillard High School's 2,307 student capacity was utilized by 2,075 students during the 1981-1982 school year. 1,812 students attended Plantation High School in 1981-1982 in a school facility designed to accommodate 2,000 students. With or without the proposed boundary changes, all four of these schools will remain under capacity for the 1982-1983 school year.

      
      

   9. It appears that the primary reason for the rezoning proposal contained in the rules here under attack was the Board's decision to replace certain students attending Dillard and Ely High Schools with other students, including the Petitioners herein, who had previously been zoned to attend Plantation High School or Pompano Beach High School. Students who are being reassigned from Dillard High School and Ely High School to other area schools reside some distance further from Dillard and Ely than do the students being reassigned from Plantation and Pompano Beach High Schools. One result of the proposed zoning changes will, therefore, be a reduction in the distance which students will have to be bused, and a concomitant reduction in transportation costs.

   10. Once the decision had been made to curtail longer distance busing, the Board was faced with the dual problem of maintaining desired racial composition and preventing under enrollment at Dillard and Ely High Schools. The choice of reassigning the students from Pompano Beach and Plantation High Schools was a reasoned and logical decision reached after considering a multitude of alternatives suggested by consultants and a very lengthy process of public participation. The curtailment of unduly lengthy student busing, with its accompanying social and economic cost was a logical policy alternative which is clearly supported by facts of record in this proceeding.

       
       

   11. Petitioners Theodor Huber and Suzan Huber, his high school age daughter, currently reside within a school boundary designated for attendance at Pompano Beach High School for the 1981-1982 school year. If the proposed rule is adopted, they will be rezoned to attend Ely High School for the 1982-1983 school year.

       
       

   12. Petitioners Janyce Becker, for herself and on behalf of her minor child, Page Becker, and Karen Coates, for herself and on behalf of her minor child, Peter Coates, reside within present school boundaries for Plantation High School, but, if the proposed rule is adopted, they will be rezoned to attend Dillard High School for the 1982-1983 school year.

       
       

   13. Petitioner Plantation Residents' Association, Inc., is a Florida corporation, comprised of persons with children of school age who have attended and are attending public schools in Broward County, Florida. Members of this organization have children who will be rezoned from Plantation High School to Dillard High School for the 1982-1983 school year, should the proposed rule be adopted.

       
       

   14. There is no showing in the record of this proceeding that adoption of the proposed high school boundary attendance zones will have any economic impact on the Petitioners involved in this proceeding. Further, there has been no showing that the notice requirements of Chapter 120 54, Florida Statutes, have in any way been violated by the Board

       
       

       CONCLUSIONS OF LAW

       
       

   15. The Division of Administrative Hearings has jurisdiction over the subject matter of, and the parties to, this proceeding. Section 120.54, Florida Statutes.

       
       

   16. 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:

       
       

       1. 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:

          
          

          1. 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 . . . (Emphasis supplied)

             
             

             (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 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 . . .

             
             

   17. 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 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.)

       
       

   18. 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 high 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)

       
       

   19. 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 legislative authority.

       
       

   20. Petitioners are each "substantially affected" as required by Section 120.54, 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.

       
       

   21. 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 quasilegislative 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, . . . 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. 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.

1. 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; that the requirements of the rule are neither arbitrary nor capricious; and that no rights of Petitioners, either statutory or constitutional, have been or will be abridged by adoption of the proposed rule. 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 exercise of their discretion.

   
   

2. Petitioners have failed to demonstrate that they will experience any economic impact as a result of the proposed rule or that any deficiencies in the Board's economic impact statement have impaired the fairness of this proceeding. School Board of Broward County v. Gramith, 375 So.2d 340 (Fla. 1 DCA 1979).

   
   

3. Petitioners having failed to demonstrate that the challenged rule exceeds the School Board's statutory or constitutional authority, or that the contents of the rule are arbitrary or capricious, the relief sought by Petitioners is hereby DENIED.

DONE and ORDERED this 14th day of July, 1982, in Tallahassee, Florida.

WILLIAM E. WILLIAMS

Hearing Officer

Division of Administrative Hearings The Oakland Building

2009 Apalachee Parkway

Tallahassee, Florida 32301

(904) 488-9675

Filed with the Clerk of the Division of Administrative Hearings this 14th day of July, 1982.

COPIES FURNISHED:

Lawrence Bunin, Esquire

4651 Sheridan Street, Suite 207

Hollywood, Florida 33021

Edward J. Marko, Esquire Post Office Box 4369

Fort Lauderdale, Florida 33338

Liz Cloud, Bureau Chief Administrative Code Section Department of State

1802 The Capitol

Tallahassee, Florida 32301

Carroll Webb, Executive Director Administrative Procedures Committee

120 Holland Building Tallahassee, Florida 32301

Docket for Case No: 82-000951RP

Orders for Case No: 82-000951RP