680 N.E.2d 1061 (Ohio App. 10 Dist. 1996), 95APE11-1457, Cincinnati City School Dist. v. State Bd. of Edn.

Docket Nº:95APE11-1457.
Citation:680 N.E.2d 1061, 113 Ohio App.3d 305
Opinion Judge:LAZARUS, Judge.
Party Name:CINCINNATI CITY SCHOOL DISTRICT, Appellant, v. STATE BOARD OF EDUCATION et al., Appellees.
Attorney:Wood & Lamping and David C. DiMuzio, Cincinnati, for appellant. Betty D. Montgomery, Attorney General, and John P. Ware, Assistant Attorney General, for appellee State Board of Education., Manley, Burke & Lipton and Timothy M. Burke, Cincinnati, for appellee Residents of Ken Arbre., Ennis, Robert...
Judge Panel:PEGGY BRYANT and DESHLER, JJ., concur.
Case Date:August 06, 1996
Court:Court of Appeals of Ohio
 
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Page 1061

680 N.E.2d 1061 (Ohio App. 10 Dist. 1996)

113 Ohio App.3d 305

CINCINNATI CITY SCHOOL DISTRICT, Appellant,

v.

STATE BOARD OF EDUCATION et al., Appellees.

No. 95APE11-1457.

Court of Appeals of Ohio, Tenth District, Franklin.

August 6, 1996

Page 1062

Wood & Lamping and David C. DiMuzio, Cincinnati, for appellant.

Betty D. Montgomery, Attorney General, and John P. Ware, Assistant Attorney General, for appellee State Board of Education.

Manley, Burke & Lipton and Timothy M. Burke, Cincinnati, for appellee Residents of Ken Arbre.

Ennis, Roberts & Fischer and George E. Roberts, Cincinnati, for appellee Madeira City School District.

LAZARUS, Judge.

The Cincinnati City School District, appellant, appeals from the judgment of the Franklin County Court of Common Pleas, which affirmed the State Board of [113 Ohio App.3d 308] Education's order transferring territory from the Cincinnati City School District to the Madeira City School District. We affirm for the reasons that follow.

The Ken Arbre subdivision, consisting of forty-eight homes, is located entirely within the city of Madeira but is part of the Cincinnati City School District. On March 29, 1992, residents of the subdivision submitted a petition pursuant to R.C. 3311.24 requesting that the subdivision be transferred to the Madeira City School District. The residents presented evidence that they were being denied full participation in their community, that their children were being denied access to programs in the city of Madeira because they were not enrolled in Madeira schools, and that transit time to Madeira schools would be substantially less than transit time to the assigned Cincinnati schools. Appellant opposed the transfer, arguing, among other things, that the transfer of the mostly white subdivision would increase racial isolation in appellant's schools. After a hearing on October 7, 1993, a State Board of Education referee 1 recommended that the board deny the transfer.

In considering a transfer petition, the referee must consider the answers of the transferee and transferor school districts to the seventeen questions listed in Ohio Adm.Code 3301-89-02(B). Ohio Adm.Code 3301-89-03(A). The referee must also consider the ten factors listed in Ohio Adm.Code 3301-89-03(B). The referee in this case found that all

Page 1063

but two of the questions and factors favored the transfer:

"[I]t appears that all factors with the exception [of] racial isolation implications and potential financial implications would point to approving the transfer. * * *

"[I]t is recommended that the financial consequences and racial impact of the proposed transfer necessitate that Petitioner's request be denied."

The referee found that the transfer would cost appellant $70,000 to $75,000, or about 0.026 percent of its $291 million budget. The referee also found that none of the subdivision's fourteen school-age children attended any of appellant's schools, except one child who attended an alternative Cincinnati school and was scheduled to graduate in 1994. Three school-age children from the subdivision were home-schooled. The referee found that minorities constituted 64.7942 percent of the students in the Cincinnati City School District and 3.6882 percent of the students in the Madeira City School District. The minority enrollment in the three Cincinnati schools assigned to the Ken Arbre subdivision was 84.1, 80.48, and 75.64 percent, respectively. Relying on Ohio Adm.Code 3301-89- [113 Ohio App.3d 309] ("The transfer shall not cause, preserve, or increase racial isolation"), the referee recommended that the board deny the transfer because the percentage of minorities in appellant's schools would rise or stay the same after the transfer.

The State Board of Education rejected the recommendation and approved the transfer on July 12, 1994, finding that the negative effect on the racial balance of appellant's schools would be de minimis and that the transfer was "in the best interests of the school-age pupils most directly affected by the transfer." Appellant appealed pursuant to R.C. 119.12 to the Franklin County Court of Common Pleas. On August 16, 1994, the parties filed a joint stipulation suspending the transfer pending determination of the appeal. The court of common pleas failed to rule on appellant's motion to admit evidence of two other mostly white territories seeking transfers out of the Cincinnati City School District. On August 24, 1995, the court issued its decision affirming the board's resolution, finding that the board's conclusion that the transfer was in the best interests of the pupils and would have a de minimis effect on racial isolation was in accordance with law and supported by reliable, probative, and substantial evidence. The court also held that appellant did not have standing to raise an equal protection argument and that even if it did, the transfer order did not violate the Equal Protection Clause.

Appellant now asserts one assignment of error: "The trial court erred to the prejudice of appellant-appellant by ruling that the transfer of territory is in accordance with law." Appellant alleges three errors of law: (1) because the transfer preserves or increases racial isolation, the transfer violates Ohio Adm.Code 3301-89-03(B)(5); (2) the transfer violates the Equal Protection Clause; and (3) the court of common pleas erred in failing to admit evidence of two other requests for transfer of territory. 2

A resolution of the State Board of Education pursuant to an R.C. 3311.24 transfer request is appealable under R.C. 119.12. Rossford Exempted Village School Dist. v. State Bd. of Edn. (1989), 45 Ohio St.3d 356, 544 N.E.2d 651, paragraph one of the syllabus; see, also, Union Title Co. v. State Bd. of Edn. (1990), 51 Ohio St.3d 189, 555 N.E.2d 931, paragraph one of the syllabus (same holding regarding R.C. 3311.06 transfer requests). The court of common pleas must affirm an administrative agency's order if it is supported by reliable, [113 Ohio App.3d 310] probative, and substantial evidence and is in accordance with law. R.C. 119.12; Pons v. Ohio State Med. Bd. (1993), 66 Ohio St.3d 619, 621, 614 N.E.2d 748, 750-751.

Page 1064

Appellant first argues that the transfer of the Ken Arbre subdivision would preserve or increase racial isolation and that the transfer is prohibited by Ohio Adm.Code 3301-89-03(B)(5).

Ohio Adm.Code Chapter 3301-89 applies to transfers requested pursuant to R.C. 3311.24. Ohio Adm.Code 3301-89-01(A). Ohio Adm.Code Chapter 3301-89 contains four sections setting forth rules to be followed by school districts, the State Board of Education, the Department of Education, and referees appointed by the Department of Education. Under Ohio Adm.Code 3301-89-01, which is addressed to the State Board of Education, the board must give primary consideration to the present and ultimate good of the pupils:

"General policies of the state board of education in a request for transfer of territory under section 3311.06 or 3311.24 of the Revised Code

" * * *

"(F) A request for transfer of territory will be considered upon its merit with primary consideration given to the present and ultimate good of the pupils concerned." Ohio Adm.Code 3301-89-01(F).

Because the good of the pupils must be the primary consideration of the board, by definition no other single factor may be determinative of the transfer request.

"[T]he several factors for consideration set forth in Ohio Adm.Code 3301-89-02(B) and 3301-89-03(B) are intended to be an integral part of the board's transfer decision with primary consideration given to the present and ultimate good of all the students who are affected by the proposed transfer.

" * * *

"[I]t is appropriate for the board to consider both the social and educational needs of all...

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