07-002760RU Ty Fischer And Jody Fischer, As Parents, Legal Guardians And Next Friends Of Erica Fischer A Minor, And Lucas Fischer, A Minor; Stephen W. Zeise And Joanne Zeise, As Parents, Legal Guardians And Next Friends Of Diane Elizabeth Zeise Et Al. vs. Orange County School Board Status: Closed DOAH Final Order on Friday, April 11, 2008.

Summary: Petitioners failed to establish standing to challenge school rezoning. There was no evidence of material failure to comply with rulemaking requirements or Respondent`s rezoning procedures.

STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

TY FISCHER AND JODY FISCHER, AS )

PARENTS, LEGAL GUARDIANS, AND )

NEXT FRIENDS OF ERICA FISCHER, )

A MINOR, AND LUCAS FISCHER, A )

MINOR; STEPHEN W. ZEISE AND )

JOANNE ZEISE, AS PARENTS, LEGAL )

GUARDIANS, AND NEXT FRIENDS OF )

DIANE ELIZABETH ZEISE, A MINOR, )

AND MELISSA CHRISTINE ZEISE, A )

)

)

Petitioners, )

)

vs. ) Case No. 07-2760RU

)

ORANGE COUNTY SCHOOL BOARD, )

)

Respondent. ) )

FINAL ORDER

On November 28 through 30, 2007, a formal administrative

hearing in this case was held in Orlando, Florida, before

William F. Quattlebaum, Administrative Law Judge, Division of

Administrative Hearings.

APPEARANCES

For Petitioners: James A. Gustino, Esquire

James A. Gustino, P.A.

Post Office Box 770759

Winter Garden, Florida 34777

For Respondent: Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-1129

Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720-3037

STATEMENT OF THE ISSUE

The issue in this case is whether the adoption of a rule by

the Orange County School Board (Respondent) creating and

revising high school attendance zones is an invalid exercise of

delegated legislative authority.

PRELIMINARY STATEMENT

On June 20, 2007, a Petition/Request for Determination of

Invalidity of Rule ("Petition") was filed by: Ty Fischer and

Jody Fischer, as parents, legal guardians, and next friends of

Erica Fischer, a minor, and Lucas Fischer, a minor; Stephen W.

Zeise and Joanne Zeise, as parents, legal guardians, and next

friends of Diane Elizabeth Zeise, a minor, and Melissa Christine

Zeise, a minor; Steve Eisinger and Sherri Eisinger, as parents,

legal guardians, and next friends of Robert Eisinger, a minor;

Tambra Blevins and Michael Blevins, as parents, legal guardians,

and next friends of Zachary Blevins, a minor, and

Austin Blevins, a minor; Jack Claiborne and Deanne Claiborne, as

parents, legal guardians, and next friends of Austin Robert

Claiborne, a minor, and Garrett Randall Claiborne, a minor;

John Farley and Joanne Farley, as parents, legal guardians, and

next friends of Samantha Farley, a minor, and Jennifer Farley, a

minor; Robert D. Neal and Dennine Neal, as parents, legal

guardians, and next friends of Jordan Neal, a minor; James Frey

and Catherine Frey, as parents, legal guardians, and next

friends of Jason Frey, a minor; Robert Knecht and Rhonda Knecht,

as parents, legal guardians, and next friends of Connor August

Knecht, a minor; Frank Henry and Joni Henry, as parents, legal

guardians, and next friends of Jolie Henry, a minor;

Ginger Sigmon Hefner, as parent, legal guardian and next friend

of Ashly Hefner, a minor; Debra Durgins, as parent, legal

guardian and next friend of Johnny Brinson, a minor,

Ashley Thomas, a minor, and Rudy Thomas, a minor; Susan Marie

Kirwan, as parent, legal guardian and next friend of

Victoria Catherine Kirwan, a minor, and Shawna Marie Kirwan, a

minor; Eduardo J. Cardenas, Sr., and Dulce M. Cardenas, as

parents, legal guardians, and next friends of Isabel Cardenas, a

minor; Tina Bean, as parent, legal guardian and next friend of

Chelsea Bean, a minor, and Erin Bean, a minor; Scott Meeks and

Kim Meeks, as parents, legal guardians, and next friends of

Emily Meeks, a minor; Danny Burnett and Diane Burnett, as

parents, legal guardians, and next friends of Abigayle Burnett,

a minor; Jeffrey Ingram and Lisa Ingram, as parents, legal

guardians, and next friends of Tyler Ingram, a minor; Nancy A.

Rocker, as parent, legal guardian and next friend of

Cyle Emerson, a minor, and Caitlyn Emerson, a minor; Michael D.

Eddy and Sonja Wolfe-Eddy, as parents, legal guardians, and next

friends of Breggin Eddy, a minor; Tim MacAllister and

Kim MacAllister, as parents, legal guardians, and next friends

of Matthew MacAllister, a minor; Billy R. Word and Andrea Welch

Word, as parents, legal guardians, and next friends of

Kayla Welch, a minor, and Kaytlynne Welch, a minor; Daniel Leno

and Linda Leno, as parents, legal guardians, and next friends of

Jessica Leno, a minor, and Danny Leno, a minor; and Kenneth Wear

and Catherine R. Wear, as parents, legal guardians, and next

friends of Carol-Ann Wear, a minor.

On June 21, 2007, the case was assigned to the undersigned

Administrative Law Judge and, by Notice of Hearing issued on

that date, the hearing was scheduled to commence on July 17,

2007, pursuant to Subsection 120.56(1)(c), Florida Statutes

(2007). 1 The case was twice continued on the basis of joint

requests by the parties and eventually was heard on November 28

through 30, 2007.

At the hearing, the Petitioners presented the testimony of

seven witnesses and had Exhibits numbered 1 through 11 admitted

into evidence. The Respondent presented the testimony of three

witnesses and had Exhibits numbered 12, 20, 21, 28 through 30,

43, 44, and 48 through 51 admitted into evidence. One joint

exhibit was also admitted into evidence.

Petitioners' Exhibit 2 and Respondent's Exhibit 12 were the

same document, and the parties stipulated, after the Petitioners'

exhibit had been admitted, to the use of the Respondent's

exhibit; accordingly, Petitioners' Exhibit 2 is not included in

the record.

The parties waived the deadline set forth at Subsection

120.56(1)(d), Florida Statutes, that requires this Final Order be

issued within 30 days after conclusion of the hearing. The six-

volume Transcript of the hearing was filed on January 14, 2008.

By agreement of the parties, Proposed Final Orders were filed on

February 11, 2008.

It should be noted that although this rule challenge was

initially identified by the Division of Administrative Hearings

(DOAH) as being directed towards an unpromulgated rule, the

challenge was filed against a school rezoning plan that had been

formally adopted by the Respondent.

The challenged rule was subsequently implemented by the

Respondent. Except for the student-Petitioners involved in this

case, the students residing within the revised attendance zones

at issue in this proceeding are attending the schools assigned

under the new rezoning plan, or are attending schools under

school board policies whereby students are permitted to attend

schools outside their assigned zones. The student-Petitioners in

this case were permitted by the Respondent to continue attending

their previously-assigned school during the pendency of this

dispute.

FINDINGS OF FACT

1. The Respondent is responsible for operation of the

public school system in Orange County, Florida.

2. Specifically relevant to this dispute, such

responsibilities include planning all aspects of physical plant

operations sufficient to accommodate student enrollment and

creation of student attendance zones to populate new and

existing school facilities.

3. School facility planning is a multi-year process in

Orange County, due to significant population growth historically

experienced in the metropolitan Orlando area.

4. The Respondent has developed a standard prototype high

school facility designed to accommodate 2,776 students. The

development and deployment of the prototype facility is not at

issue in this proceeding.

5. In projecting the need to construct new schools, the

Respondent's planning staff generally relies upon population

growth projections supplied by various local government agencies

including the local municipalities within an affected area. In

this case, the information reviewed included the general routine

data including growth projections received from the City of

Ocoee.

6. Western Orange County, including the municipalities of

Ocoee and Wekiva, has been a rapidly-growing part of the county,

primarily because of the availability of undeveloped land in

that portion of the county. The number of schools in the area

doubled within the past six years. Three additional new schools

are included in the Respondent's ten-year planning horizon for

the area.

7. Ocoee High School was constructed to relieve

overcrowding at Apopka and West Orange High Schools, and to

accommodate 2,776 students. Despite having opened only two

years ago, 3,236 students were enrolled at Ocoee High School for

the 2006-2007 school year, and the student population was

projected at 3,300 to 3,400 students for the 2007-2008 school

year.

8. In 2006, the staff of the Orange County School District

began the process of creating a school zoning plan intended to

populate Wekiva High School, a new facility opening for the

start of the 2007-2008 school year. Wekiva High School was

constructed to address excess student enrollment at Ocoee and

Apopka High Schools and to accommodate projected growth in the

vicinity of the school.

9. The Respondent eventually adopted a rezoning plan (the

"initial plan") intended to populate the new school with

students from other area schools.

10. The Petitioners are parents and students residing in

an area previously zoned for attendance at Ocoee High School.

(During the rezoning process, the Petitioners' residential area

was identified as "Area Z.") Under the initial plan, the

student-Petitioners would have been assigned to attend Wekiva

High School, approximately five miles from Area Z.

11. The initial plan was the subject of a legal challenge

by many of the same Petitioners involved in the instant case.

On April 10, 2007, the Respondent rescinded the initial plan.

12. Following the rescission of the initial plan, the

Respondent immediately adopted a new 13-step School Attendance

Rezoning Process to govern future school rezoning efforts. The

rezoning process took effect upon adoption and has not been

challenged in this proceeding.

13. On April 11, 2007, the Respondent initiated a second

attempt to create a zoning plan to populate Wekiva High School

and, ultimately, adopted the plan at issue in this proceeding

(the "current plan").

14. Under the current plan, the students residing in

Area Z were again assigned to attend Wekiva High School.

15. The Petitioners have asserted that the current plan is

an invalid exercise of delegated legislative authority in that

it is "(a) arbitrary and capricious, (b) not supported by

competent or substantial evidence grounded in the specific

variables identified by School Board policy as controlling in

such matters, and (c) is the product of procedural errors that

render the Rezoning Ruling unfair and/or incorrect."

16. Four of the Petitioners testified at the hearing on

behalf of themselves and their children: Joanne Zeise, Tambra

Blevins, James Frey, and Tim MacAllister.

17. Joanne Zeise is the mother of two daughters. One

daughter is a senior at Ocoee High School and was not affected

by this rezoning proposal. There is no senior class at Wekiva

High School. Seniors were allowed to remain in, and graduate

from, their previously assigned schools.

18. Ms. Zeise's other daughter is in the 7th grade and,

under the current plan, will go to Wekiva High School. The

child has not yet attended any high school. Ms. Zeise had hoped

that her younger daughter would be assigned to Ocoee High

School.

19. Ms. Zeise was previously very involved with Ocoee High

School activities. She assisted in setting up the school

library, including unpacking and shelving books. She and other

parents were apparently instrumental in establishing the

school's aquatics program. Her participation in school

activities waned as she became involved in the effort to keep

her neighborhood assigned to the Ocoee High School attendance

zone.

20. Ms. Zeise is opposed to all of the proposed rezoning

options that affected her neighborhood. She helped organize

neighbors to oppose the rezoning, conducted meetings in her

home, and helped raise funds to obtain legal counsel. She

attended community and School Board meetings, the Bi-Racial

Advisory Committee meeting addressed herein, and met

individually with some, if not all, members of the School Board

to discuss her opposition to the rezoning.

21. Ms. Zeise is concerned about the alteration to school

"feeder patterns" further addressed herein. She testified that

her neighborhood had been rezoned previously and that she

expected it to be rezoned again, if and when the school district

implements improvements to Evans High School, which lies to the

east of her neighborhood.

22. Although Ms. Zeise testified as to curriculum

differences between Ocoee and Wekiva High Schools, specifically

as to upper level math and art classes, the evidence fails to

establish that such classes will not be available at Wekiva High

School to her younger daughter, who has not yet entered high

school. Further, there is no evidence that such classes will

remain available to students at Ocoee High School.

23. Ms. Zeise testified that she requested demographic

data of assorted residential areas at various meetings so that

she could propose additional zoning options, but stated that the

requests were verbal and undocumented.

24. School district staff testified that they responded to

all formal information requests. The evidence is insufficient

to establish that the Respondent failed to comply with any

requests for information.

25. Tambra Blevins is the mother of a 9th grade son who

will transfer from Ocoee High School to Wekiva High School under

the current plan. Ms. Blevins testified that he is unhappy and

emotional with the prospect of being severed from school friends

by the rezoning, but acknowledged that his academic performance

has been stable. There was no evidence offered that the change

in schools would impact his academic opportunities or

performance.

26. Ms. Blevins was also involved with organizing the

effort to oppose the rezoning plan and helping to raise funds

and to distribute information to persons who were expected to

oppose the plan.

27. There is no credible evidence that Ms. Blevins

requested information or data from the Respondent which was not

provided.

28. James Frey is the father of a son, a student in the

10th grade at Ocoee High School, who will transfer to Wekiva

High School under the current plan. Mr. Frey testified that his

son was feeling emotionally stressed by the rezoning changes,

but that his grades remained high and that he had a good

attitude.

29. Mr. Frey noted that there are curriculum differences

between the two schools. The evidence fails to establish that

the academic curriculum at either school is superior to the

other.

30. Mr. Frey testified that his son wanted to remain at

Ocoee High School to take advantage of a building construction

program offered there, and which is not offered at Wekiva High

School. His son has not yet enrolled in the building

construction program. Mr. Frey testified that his son had been

unable to enroll because the classes were filled.

31. Mr. Frey testified that his son's application to

remain at Ocoee High School had been denied by the Respondent.

The basis for the application was unclear; but, according to the

letter of denial dated May 23, 2007, the Respondent denied the

application "because the Orange County School Board has been

placed under a court order by the United States District Court

and the United States Fifth Circuit Court of Appeals, which does

not permit us to grant an exemption on the basis of your

request."

32. Mr. Frey also testified that his son was interested in

the Japanese language program at Ocoee High School; but, at the

time of the hearing, his son was enrolled in Spanish language

classes that are offered at both Ocoee and Wekiva High Schools.

He has not enrolled in the Japanese language courses. There is

no evidence that the Ocoee High School Japanese classes were

unavailable to Mr. Frey's son.

33. Mr. Frey also noted that his son was involved in a

freshman mentoring program that was part of his son's work

towards becoming an Eagle Scout and that his son was very

interested in achieving his goal.

34. Although Wekiva High School apparently had no similar

extracurricular program at the time of the hearing, it is

reasonable to presume that extracurricular activities will be

available at Wekiva High School in response to student

interests.

35. There is no credible evidence that Mr. Frey requested

information or data from the Respondent which was not provided.

36. Tim MacAllister is the father of a son attending

9th grade at Ocoee High School who will transfer to Wekiva High

School under the current plan. Prior to this school year,

Mr. MacAllister's son had not entered high school and had never

attended Ocoee High School.

37. Mr. MacAllister's son is enrolled in honors classes at

Ocoee High School and is enrolled in the Japanese language

course that is not offered at Wekiva High School.

38. The Respondent has a policy that permits students to

obtain academic transfers from an assigned school to another

school in order to complete course sequences not available at

the assigned school. There is no evidence as to whether Mr.

MacAllister's son has applied for an academic transfer to remain

at Ocoee High School.

39. Mr. MacAllister noted that there were curriculum

differences between the two schools; but, other than the

Japanese class, his son has not enrolled in any courses that are

unavailable at Wekiva High School.

40. Mr. MacAllister's son wants to continue on to college

after graduating from high school, and his family supports his

interest. There is no evidence suggesting that graduating from

either Ocoee or Wekiva High Schools would affect a student's

college admission prospects.

41. Mr. MacAllister's son is eligible for transportation

by bus to either Ocoee or Wekiva High schools. Mr. MacAllister

testified that he takes his son to school, and that Ocoee High

School is on his way to work, whereas Wekiva High School is not.

42. Wekiva High School is closer to the MacAllister home

than is Ocoee High School, and, although Mr. MacAllister opined

that the traffic makes travel to Wekiva High School less safe

that to Ocoee High, there was no empirical support for his

opinion.

43. There is no credible evidence that Mr. MacAllister

requested information or data from the Respondent which was not

provided.

44. No evidence was presented as to the Petitioners who

did not testify at the hearing.

45. As set forth previously, the Respondent, after

rescinding the initial rezoning plan, adopted a revised rezoning

process. The 13 steps of the revised process are as follows:

Step 1: Superintendent commences the

rezoning process for the affected schools.

Step 2: Pupil Assignment Department

prepares a master calendar identifying

provisional dates for the rezoning process,

including a community information meeting,

Bi-Racial Advisory Committee meeting, Rule

Development Workshop and Final Public

Hearing with their corresponding public

notice deadlines.

Step 3: Pupil Assignment Department

distributes the rezoning master calendar to

each Board Member, Superintendent, area

superintendents and potentially affected

school principals. The master calendar

shall be posted at the Educational

Leadership Center and at the affected

schools, as well as conspicuously posted at

the potentially affected schools in the

front office.

Step 4: Pupil Assignment Department

commences its school rezoning analysis for

purposes of developing one or more proposed

rezoning options. Pupil Assignment staff

may consult with each Board member,

individually; the affected area

superintendents and school principals; and

the transportation Department, in order to

acquire relevant information and technical

assistance needed to formulate suitable

attendance zone options. Each rezoning

option devised by staff must comply with the

applicable desegregation orders. Staff may

consider any of the following factors in

developing each rezoning option:

- Anticipated growth and development within

the attendance zone

- Facility design capacities for each

affected school

- Distances and duration of student travel

- School feeder patterns

- Adverse impacts to neighborhoods,

residential subdivisions or other discrete

residential area

Step 5: The Director of Pupil Assignment

shall certify that each proposed rezoning

option is compliant with current

desegregation orders; is not arbitrary; and

is supported by staff consideration and

analysis of one or more of the factors

enumerated in Step 4.

Step 6: Pupil Assignment staff shall convey

the proposed rezoning options to the Bi-

Racial Advisory Committee with a request

that the Committee consider and make

recommendations to the Superintendent

concerning any aspect of the proposed

attendance zones. The Bi-Racial Advisory

Committee is required under the

desegregation orders to review proposed

changes to school attendance zones.

Step 7: Pupil Assignment staff will

schedule, notice and attend community

meetings. At the community meetings staff

will explain the rezoning process, discuss

factors considered for each proposed

attendance zone, engage in discussion as to

each proposal's attributes and obtain

community feedback.

Step 8: The Director of Pupil Assignment

will present each proposed rezoning option

to the Superintendent with his or her

recommendation, along with the Bi-Racial

Committee's recommendations and a report on

the community's response to the rezoning

options. The Superintendent may reject any

or all proposals submitted by the Director

of Pupil Assignment and direct that staff

undertake an additional review for the

purposes of devising alternate options. The

Superintendent shall select those proposals

to be advertised for a Rule Development

Workshop that, in his or her discretion,

reasonably balance the factors described

above, any Bi-Racial Committee

recommendations and community interests.

Step 9: School Board Services shall prepare

a Notice of Public Rule-Development Workshop

("Workshop Notice") identifying each

attendance zone proposal for the affected

schools as required by Florida Statutes

Sections 120.54(2) and 120.81(d).

Step 10: Members of the public shall have

an opportunity to speak at the workshop.

During the workshop the Board may make

modifications to the proposed attendance

zones recommended by staff and any

recommendations for implementation of those

attendance zones. School Board Services

Department shall then schedule a public

hearing for the formal adoption of a

proposed attendance zone.

Step 11: Notice of Public Hearing on

Proposed Board Action concerning School

Attendance Zone Changes will be prepared by

Pupil Assignment Department for

advertisement in a newspaper of general

circulation not less than 28 days prior to

the date of the public hearing. The notice

shall contain information required by

Florida Statutes Sections 120.54(3) and

120.81(1)(d).

At the conclusion of the public hearing, the

School board may take action to either: (1)

adopt one of the recommended options; (2)

direct staff to re-advertise for public

hearing any substantive modification to a

recommended option in accordance with step

11 or (3) reject recommended options and

direct that staff undertake an additional

review for the purpose of devising

alternative attendance zone options.

Step 12: Pupil Assignment shall compile a

rulemaking record which shall include those

materials identified in Florida Statute

section 120.54(8), in addition to the

following:

A. Written comments and/or questionnaire

responses received in connection with the

community meetings.

B. Written comments and recommendations

received by the Bi-Racial Committee.

Step 13: Pupil Assignment shall cause to be

filed a certified copy of the proposed

attendance zones, the rulemaking record and

other relevant materials in the office of

Pupil Assignment and make such materials

available for public inspection upon

request.

46. The Petitioners presented no credible evidence that

the Respondent materially failed to comply with any of the steps

in the rezoning process.

47. As required by Step 1, the superintendent commenced

the rezoning process by approval of a memo dated April 11, 2007,

from Sandra R. Simpson, director of Pupil Assignment. The memo

included a proposed timeline which formed the basis for the

master calendar required in Step 2.

48. The master calendar was distributed to various school

officials and posted at the Educational Leadership Center and in

various locations at the affected schools as required by Step 3.

49. Additionally, the schedule of meetings and workshops

identified in the master calendar was published in a series of

legal notices contained in the April 15, 2007, issue of the

Orlando Sentinel. The publication included notice of the Bi-

Racial Advisory Committee meeting scheduled for April 30, 2007;

notice of a community meeting scheduled for May 1, 2007; and

notice of the Rule Development Workshop scheduled for May 2,

2007.

50. The notice for the rule development workshop provided

an explanation of school zoning and set forth the purpose of the

proposed rezoning (i.e. , to populate the new school and

"equitably and efficiently" redistribute current student

populations at existing schools.) The notice specifically

identified the new school to be opened and identified the school

zones which could be potentially altered by rezoning.

51. As required by Step 4, the Respondent's Pupil

Assignment staff eventually developed eight proposed options

intended to populate Wekiva High School and reduce student

populations at Ocoee and Apopka High Schools.

52. In developing the school zones, the staff utilized

information collected during the initial rezoning effort. There

is no credible evidence that the information was invalid or

unreliable at the time that the options were developed.

53. The analysis began with a review of the two-mile

radius surrounding Wekiva High School to identify the number of

students residing therein. Approximately 1,100 eligible

students resided within the specified area.

54. A two-mile radius was considered because students

residing within two miles of the school would not be eligible to

ride a school bus to the school, thereby reducing the

Respondent's transportation costs.

55. The staff then began to alter the zones to reach an

acceptable population level for the three grades, 9 through 11,

to be available during the first year of operation at Wekiva

High School.

56. In designing the zones, the staff relied upon a highly

specialized computer software program that utilizes demographic

data capable of identifying individual students residing in

specific homes. Some of the data used was sufficiently detailed

to provide personal information, including race, grades and FCAT

scores, and economic status applicable to individual students.

Essentially, the software allowed the staff to create various

proposals and review the specific demographic characteristics

for each.

57. In relevant part, each option placed approximately

1,750 students in grades 9 through 11 at Wekiva High School,

taken from a varying mix of Apopka, Evans, Edgewater, and Ocoee

High School zones. All of the affected zones were contiguous to

the Wekiva High School zone.

58. The relatively-similar rezoning options differed

essentially as to which zone students residing in three specific

areas (identified on maps as Areas "X," "Y," and "Z") were

assigned.

59. The Petitioners have asserted that the Respondent

failed to provide the data upon which the zones were created.

The evidence fails to establish that the school board staff

refused to assist any person requesting to use the software to

devise alternative attendance zones. It is reasonable for the

disclosure of the detailed demographic data to be restricted so

as to protect information related to individual students.

60. The Petitioners have asserted that the Respondent

ignored feeder patterns and issues related to neighborhoods in

the rezoning process. The evidence fails to support the

assertion.

61. The staff considered the factors set forth in Step 4

of the rezoning process, including existing and anticipated

school feeder patterns, neighborhood integrity concerns, various

types of transportation barriers, and projected growth within

the attendance zones, in developing the rezoning options. To

the extent that factors conflicted, those conflicts were

reflected within the various proposals eventually submitted to

the superintendent for review.

62. The staff did not limit its review to the factors set

forth in Step 4. For example, the staff also considered FCAT

scores. Students attending poorly performing schools (commonly

referred to as "F-Schools") are permitted by law to transfer out

of their assigned schools and into other schools.

63. Ocoee High School is a "C-School." Evans High School

is an "F-School." The Evans High School zone is immediately

adjacent and to the east of the Ocoee High School zone. Staff

reasonably presumed that rezoning students from the C-School

zone into the closer F-School, rather than into the Wekiva High

School zone, would not adequately address issues of overcrowding

at Ocoee High School because the newly-transferred students

would transfer back from Evans to Ocoee.

64. By federal court order dated September 2, 1980, Orange

County was required to revise school attendance zones to

desegregate the school system. The court order specifically

addressed procedures of modification of school attendance zones.

The court order has been amended at various times and was still

in effect at the time of the hearing.

65. Minority students comprise 28 percent of the Orange

County student population. The Respondent attempted to create

attendance zones reflective of the county's general racial

demographics. In creating the proposed zones, the staff

reviewed matters of racial and economic diversity in order to

meet the requirements of a federal court order related to

desegregating the Orange County School System.

66. As required by Step 5, Pupil Assignment Director

Simpson certified by memo dated April 26, 2007, that each zoning

option complied with the desegregation order and was prepared

after a logical analysis of the factors set forth in Step 4.

67. As required by Step 6, the eight options were

presented to the members of the Bi-Racial Advisory Committee by

school board staff on April 30, 2007. The purpose of the

committee meeting was to review the rezoning proposals to

determine whether any appeared to result in re-segregation of

the school system. Some committee members took the opportunity

to comment on the proposals at the meeting, while others

submitted additional comments to staff on May 1, 2007. All

comments were provided to the School Board members at the rule

development workshop on May 2, 2007.

68. As required by Step 7, the Pupil Assignment staff

attended a previously noticed community meeting held on May 1,

2007, at the Educational Leadership Center and presented the

options to the various attending members of the public. Persons

in attendance were provided an opportunity to submit oral or

written comments regarding the proposed options, and some took

advantage of the opportunity. Staff email addresses were also

provided to attendees, and more than 40 emails were eventually

received by staff. A petition signed by opponents to the plans

was also presented to and received by the staff. All

communications from the public were summarized and provided to

School Board members at the rule development workshop.

69. The Petitioners have asserted that the Respondent

failed to comply with the Step 7 requirement that the staff

attend community "meetings" because only one meeting occurred.

At the hearing, Ms. Simpson testified that she believed it was

within her discretion to conduct a single meeting under the

rezoning process.

70. Although the requirement does not appear to provide

for such discretion, the failure to conduct more than one

community meeting is immaterial to this dispute. There is no

statutory requirement that a "community meeting" be conducted as

part of rulemaking. Additionally, there is no evidence that any

potentially-affected person was unaware of the rezoning

proposals or was denied an opportunity to review the proposals,

to engage in discussion regarding the proposals, or to provide

feedback to the Respondent.

71. As required by Step 8, Pupil Assignment Director

Simpson met with the superintendent on May 2, 2007, to present

the options to him. The superintendent was also provided with

the comments from the Bi-Racial Advisory Committee. The staff

recommended that Options 1 and 3 be presented to the School

Board members at the workshop.

72. The staff disfavored Options 2, 5, 7, and 8 because

all four required the purchase of additional school buses to

transport eligible students, resulting in increased initial and

subsequent operating costs to the Respondent.

73. The staff disfavored Options 4 and 6 because they did

not resolve excess population concerns at Ocoee High School.

74. Although the superintendent agreed with the staff, he

directed that all eight options be presented to the School Board

members at the scheduled workshop.

75. The Notice of Public Rule-Development Workshop

required by Step 9 had been published with the other legal

notices on April 15, 2007. The notice adequately identified

each potentially impacted attendance zone and properly included

all information required by statute.

76. The Petitioners have asserted that the Respondent

failed to provide notice by mail of various meetings, including

the workshop, to persons requesting such notice as required by

statute. There is no credible evidence that any person formally

requested advance notice of the workshop or other proceedings.

In any event, any failure by the Respondent in this regard is

immaterial. There is no allegation or evidence that any person

potentially affected by proposed rezoning was unaware of the

workshop or was denied an opportunity to participate at the

workshop based on lack of sufficient notice.

77. The Rule Development Workshop referenced in Step 10

occurred as scheduled on May 2, 2007. The eight options were

presented to the Respondent by staff who answered various

questions from board members. An opportunity for public comment

was provided and a number of persons, including several

Petitioners and their legal counsel, spoke at the meeting

regarding the options. The Petitioners' legal counsel suggested

an additional rezoning option to the Respondent. Ocoee City

Commissioner Joel Keller, within whose district the Petitioners

reside and who testified at the administrative hearing, made an

extended presentation at the meeting.

78. Following a period of discussion, the board members

decided to move forward with the proposed "Option 3" rezoning

plan and scheduled the public hearing to consider formally

adopting the option for June 12, 2007.

79. As required by Step 11, notice of the public hearing

(titled "Notice of Intended Action on School Attendance Zone

Changes") was published in the May 13, 2007, edition of the

Orlando Sentinel. The notice clearly included the information

required by Subsections 120.54(3) and 120.81(1)(d), Florida

Statutes. The notice was also posted at the Educational

Leadership Center and at the potentially affected schools.

80. Approximately two weeks prior to the public hearing,

Pupil Assignment Director Simpson prepared a draft resolution

for consideration by the board. Ms. Simpson detailed the staff

analysis of the process and the various factors considered in

the eventual recommendation.

81. The public hearing was conducted on June 12, 2007.

The selected option was presented to the board members by the

staff, and all of the zoning options and supporting demographic

information was available for their review.

82. Another opportunity for public comment was provided,

and a number of Petitioners, in addition to other speakers,

again advised the board members of their objections.

Petitioners' legal counsel again made the same proposal as had

been presented at the workshop, and elected officials from the

City of Ocoee also spoke to the board.

83. Staff members responded to questions from both

speakers and school board members. Following the conclusion of

the comment and question session, board members discussed the

issue and then adopted Option 3 (the rezoning option challenged

in this proceeding) on a vote of 5 to 1.

84. There is no assertion or evidence that the Respondent

failed to comply with Steps 12 and 13 of the rezoning process.

85. As stated previously herein, the Petitioners have

asserted that the current plan is an invalid exercise of

delegated legislative authority in that it is "(a) arbitrary and

capricious, (b) not supported by competent or substantial

evidence grounded in the specific variables identified by School

Board policy as controlling in such matters, and (c) is the

product of procedural errors that render the Rezoning Ruling

unfair and/or incorrect."

86. The Petitioners presented no credible evidence that the

Respondent's adoption of the current plan was arbitrary or

capricious.

87. The evidence offered in support of the assertion that

the adoption of the rezoning plan was arbitrary or capricious

essentially focused on two other high schools in the Orange

County School System, Olympia and Evans. The Petitioners

asserted that the Petitioners were treated arbitrarily by the

Respondent's application of the prototype high school population

of 2,776 to this rezoning, while allowing the Olympia High School

population to substantially exceed 2,776 and leaving Evans High

School operating under capacity. The evidence fails to support

the assertion.

88. The Respondent previously attempted to rezone Olympia

High School, which was operating in excess of the facility's

original attendance design capacity, prior to the rezoning at

issue in this proceeding. The Olympia rezoning plan was the

subject of a successful legal challenge, and the rezoning did not

occur. Permanent modular classroom buildings were placed on the

Olympia campus to accommodate the excess student capacity.

89. The Petitioners suggest that the capacity of Ocoee High

School be increased in a similar manner. There are more than 20

modular classroom buildings already on the Ocoee High School

campus.

90. There is no evidence that the Respondent attempted to

rezone Olympia High School for the purpose of expanding the

student population beyond 2,776 students. The increase in the

authorized capacity at Olympia occurred subsequently to the

successful legal challenge and reflected the necessity to

accommodate the student population remaining thereafter.

91. The purpose of the current plan is to populate Wekiva

High School and relieve the overcrowding at Ocoee and Apopka High

Schools. There is no evidence that the purpose of the current

rezoning plan is unreasonable. There is no evidence that the

Respondent's adoption of the current rezoning plan was arbitrary

or capricious.

92. Evans High School has historically operated with a

student population significantly less than the facility can

accommodate, primarily because many of the approximately 4,000

students living within the Evans zone do not attend school on the

Evans campus. Evans High School has a predominately African-

American student population. Students in a racial majority at a

specific school are permitted to transfer into a school where

they are in a racial minority and an apparent significant number

exercise the option.

93. Evans is scheduled to be redesigned and relocated

during the 2009-2010 school year. School officials believe that

in addition to offering "magnet" programs at Evans, the

relocation and redesign will increase enrollment and encourage

students living within the Evans zone to attend school at the new

facility. The Respondent's plans for the Evans High School

project are not at issue in this proceeding. There is no

credible evidence that the Evans proposal has any relevance to

the current rezoning plan.

94. The Petitioners presented no credible evidence to

support the assertion that the Respondent failed to comply with

"controlling" variables as required by the policy. The specific

policy being implemented indicates that the variables,

specifically those identified in Step 4, "may" be considered by

the staff in developing each rezoning option. The evidence

establishes that the staff considered the variables to the

extent necessary to develop the options and that the relevant

information was available for the Respondent's review of the

options prior to adoption of the current plan.

95. The Petitioners assert that the current plan disrupts

school "feeder" patterns. A feeder pattern is based on

attendance zones whereby students attending a specified school

move as a group to another school as their education progresses.

96. The concept of feeder patterns is one of the factors

that the Pupil Assignment staff may consider during Step 4 of

the rezoning process. The evidence establishes that the staff

considered the feeder patterns impacted by the current plan.

The policy does not prohibit the Respondent from altering feeder

patterns when school attendance zones are created or revised.

97. In addition to consideration of feeder patterns,

Step 4 identifies other factors which staff may consider in

developing proposals for rezoning. The evidence establishes

that the staff considered the factors relevant to each option.

To the extent that there was conflict between various factors,

the conflicts were recognized, and the information was

communicated by staff to the Respondent.

98. The Petitioners presented no credible evidence that

the current plan "is the product of procedural errors that

render the Rezoning Ruling unfair and/or incorrect." There was

no evidence that there were any material procedural errors

committed during the adoption of the current plan.

99. Because the Respondent was intent on having the

rezoning plan in place by June 2007 so that Wekiva High School

could be populated by August 2007, the rezoning process was

accelerated, but there is no evidence that the Respondent failed

to comply with any deadline set forth within the rezoning process

or within the applicable rulemaking provisions of Florida

Statutes.

100. The Petitioners generally assert that the Respondent

failed to provide "the full panoply of public notice protections

mandated by law." There is no credible evidence that the

Respondent did not comply with the public notice provisions set

forth in Florida Statutes and within the Respondent's new

rezoning procedure.

101. The evidence fails to support any assertion that the

notice provided by the Respondent was insufficient. The

evidence clearly establishes that Petitioners were aware of, and

opposed to, the proposed changes to school attendance zones and

that they participated throughout the full course of public

events. There is no evidence that any potentially-affected

person was unaware of the rezoning process.

102. The evidence also clearly establishes that local

officials from the City of Ocoee, including Commissioner Keller,

were aware of the rezoning proposals. The commissioner engaged

in discussions at city meetings, attended various school board

meetings and made a significant public presentation to the school

board members, submitted written information, and met with

individual school board officials regarding opposition to the

rezoning plan.

103. The Petitioners asserted that the Respondent failed to

comply with applicable rulemaking requirements set forth in

Chapter 120, Florida Statutes. There is no evidence that the

Respondent materially failed to comply with any statutory

requirement related to the adoption of the current plan.

104. The Petitioners asserted that the Respondent violated

Subsection 120.54(3), Florida Statutes, by failing to publish a

written analysis that would have permitted the "affected public"

to challenge the options and formulate a "superior" proposal.

The cited statute does not require such publication.

105. The Petitioners asserted that the accelerated process

undertaken by the school board in adopting the current plan

prohibited them from gathering data and proposing alternative

zoning plans to the Respondent. The assertion is not supported

by the evidence.

106. The Petitioners have been actively involved in the

issue from the beginning of the Respondent's rezoning efforts.

There is little apparent substantive difference between the

initial plan and the current plan insofar as the rezoning is

applicable to the Petitioners.

107. During various presentations and meetings with the

Respondent, the Petitioners and their legal counsel made

proposals to transfer other neighborhoods in lieu of Area Z into

the Wekiva High School zone.

108. The Petitioners assert that the Respondent denied

access to data that would have permitted the Petitioners to

propose alternative zones. Although the Respondent is required

to have sufficient data to support the ultimate outcome of the

rezoning process, there is no requirement that the Respondent

provide such data to persons seeking to devise alternative zoning

plans. There is no evidence that such data was sought through

discovery as part of this proceeding. Nonetheless, the

Respondent presented evidence that school board staff would

accommodate public requests to assist in utilization of the

Respondent's software to generate proposals.

109. The Petitioners asserted that the Respondent violated

Subsection 120.54(3), Florida Statutes, by failing to publish an

analysis of the federal court order's relevance to and impact

upon the proposed options. The cited statute does not require

such publication.

110. The Petitioners asserted that the Respondent violated

Subsection 120.54(3), Florida Statutes, by failing to include a

summary of the agency's statement of estimated regulatory costs

per Subsection 120.54(3)(a), Florida Statutes. The referenced

requirement is only applicable if such a statement has been

prepared. There is no evidence that such a statement was

prepared in this case. There is no evidence that there are any

"regulatory costs" involved in the rezoning plan.

111. The Petitioners asserted that the Respondent violated

Subsection 120.54(3)(a)1., Florida Statutes, by failing to

include in the published notice of rulemaking a reference to the

date and place where the notice of rule development appeared.

112. The evidence establishes that the Notice of Intended

Action dated May 13, 2007, stated that the rule development

workshop was "advertised on April 15, 2007" and "was conducted at

the Educational Leadership Center on May 2," but failed to state

that the advertisement was published in the Orlando Sentinel, as

were all legal notices relevant to this proceeding.

113. The failure to identify the place of publication is

immaterial under the facts and circumstances of this dispute.

There is no evidence that the Respondent's failure to note that

the advertisement appeared in the Orlando Sentinel resulted in

any potentially-affected person being denied an opportunity to

participate in the process.

114. The Petitioners asserted that the Respondent failed to

Statutes, which require the filing of specified materials with

the Administrative Procedures Committee. The Respondent is

exempted from such requirements by Subsection 120.81(1)(e),

Florida Statutes.

115. The Petitioners asserted that the Respondent violated

Subsections 120.54(1)(a)2. and 120.54(2), Florida Statutes, by

failing to publish a "complete and readily comprehensive summary

of proposed rezoning action in newspaper of general circulation

to alert and apprise the average reader of the Respondent's

contemplated decision and the public's ability to formulate

alternative proposals based upon the same pertinent data." The

cited statutes do not require such publication.

116. The Petitioners asserted that the Respondent violated

Subsection 120.54(1)(d), Florida Statutes, by failing to "select

the rezoning alternative that does not impose regulatory costs on

Petitioners and/or Orange County that could be reduced by the

adoption of less costly alternatives that substantially

accomplish the statutory objectives." There is no evidence that

there are any regulatory costs at issue in this proceeding.

117. The Petitioners asserted that the Respondent violated

notice requirements by failing to publish all notices required

by Chapter 120, Florida Statutes, on the Respondent's website,

but there is no statutory notice provision that requires

publication on the Respondent's website.

118. The Petitioners asserted that the Respondent failed to

provide, by mail, advance notices related to the rezoning to

persons requesting such information be provided. There is no

evidence that the Respondent disregarded any formal request for

information. There is no credible evidence that the Respondent

disregarded any informal request for information. To the extent

that the Respondent potentially failed to comply with any

informal request, there is no evidence that such failure resulted

in any potentially affected person being denied an opportunity to

participate in the proceeding, and such alleged failure is

immaterial.

119. The Petitioners asserted that the Respondent failed to

comply with the requirements of the rezoning process, but as

discussed previously, the Respondent followed the process and

materially complied with the requirements included therein.

120. The Petitioners asserted that the data used by the

staff in drafting the proposed zones was flawed. The evidence

establishes that there were minor errors, including

transposition of numerals in an initial calculation, which were

corrected after it was brought to the staff's attention by

Commissioner Keller. There is no credible evidence that the

data was erroneous at the time the Respondent began considering

the proposed zoning options, or when the Respondent adopted the

current plan.

121. The Petitioners asserted that the planning

projections utilized by the Respondent were erroneous and

overestimated the need for facility construction, in turn

resulting in unnecessary student transfers caused by rezoning.

The Petitioners suggested that the projections include a

substantial quantity of residential units either existing or

planned in the areas affected by the current rezoning plan,

which are unoccupied and unnecessary to accommodate the current

residential population.

122. There is no evidence that the Respondent's use of

standard population growth data was inappropriate. There is no

evidence that at the time the Respondent began planning the

construction of the Wekiva High School facility, the Respondent

had any reason to presume that projected student population

figures may have overstated the need for school facilities. The

Petitioners offered no credible evidence that the quantity of

residential units in the relevant areas, constructed and

unoccupied, is of such significance to be relevant to this

dispute. There is no evidence that the Respondent has

constructed unnecessary school facilities.

CONCLUSIONS OF LAW

123. The Division of Administrative Hearings has

jurisdiction over the parties to and subject matter of this

proceeding. § 120.56, Fla. Stat.

124. The Respondent is an "educational unit" and an

"agency" as the term is defined by Subsections 120.52(1)(b)7. and

120.52(6), Florida Statutes.

125. The Respondent is responsible for operation and

control of the public schools within Orange County. See Article

IX, § 4(b), Fla. Const.; §§ 1001.32 and 1001.33, Fla. Stat.

126. Subsection 1001.41(6), Florida Statutes, specifically

assigns to each district school board the power to assign

students to schools after consultation with the district school

superintendent.

127. The adoption by a district school board of school

attendance zones constitutes rulemaking. Polk v. School Board of

Polk County , 373 So. 2d 960 (Fla. 2nd DCA 1979).

128. The issue in the case is whether the adopted

attendance zones constitute an invalid exercise of delegated

legislative authority.

129. In relevant part, Subsection 120.52(8), Florida

Statutes, defines the phrase "invalid exercise of delegated

legislative authority" as follows:

"Invalid exercise of delegated legislative

authority" means action which goes beyond

the powers, functions, and duties delegated

by the Legislature. A proposed or existing

rule is an invalid exercise of delegated

legislative authority if any one of the

following applies:

(a) The agency has materially failed to

follow the applicable rulemaking procedures

or requirements set forth in this chapter;

(b) The agency has exceeded its grant of

rulemaking authority, citation to which is

required by s. 120.54(3)(a)1.;

(c) The rule enlarges, modifies, or

contravenes the specific provisions of law

implemented, citation to which is required

by s. 120.54(3)(a)1.;

(d) The rule is vague, fails to establish

adequate standards for agency decisions, or

vests unbridled discretion in the agency;

(e) The rule is arbitrary or capricious. A

rule is arbitrary if it is not supported by

logic or the necessary facts; a rule is

capricious if it is adopted without thought

or reason or is irrational; or

(f) The rule imposes regulatory costs on

the regulated person, county, or city which

could be reduced by the adoption of less

costly alternatives that substantially

accomplish the statutory objectives.

130. This is a challenge to an adopted rule that was

implemented by the Respondent after the challenge was filed,

apparently pursuant to an agreement with the Petitioners. The

Petitioners have the burden of proving by a preponderance of the

evidence that the existing rule is an invalid exercise of

delegated legislative authority. See § 120.56(3)(a), Fla. Stat.

The burden has not been met.

131. Subsection 120.56(1)(b), Florida Statutes, requires

that a petition challenging the validity of a rule must "state

with particularity the provisions alleged to be invalid with

sufficient explanation of the facts or grounds for the alleged

invalidity and facts sufficient to show that the person

challenging a rule is substantially affected by it, or that the

person challenging a proposed rule would be substantially

affected by it."

132. Subsection 120.56(2)(a), Florida Statutes, further

requires that in challenging a proposed rule, the Petition must

"state with particularity the objections to the proposed rule and

the reasons that the proposed rule is an invalid exercise of

delegated legislative authority."

133. The Petition filed in this case cites to Subsection

120.56(1), Florida Statutes, as authority for the hearing and

asserts that the rule is an invalid exercise of delegated

legislative authority in that it is "(a) arbitrary and

capricious; (b) not supported by competent or substantial

evidence grounded in the specific variables identified by School

Board policy as controlling in such matters; and (c) is the

product of procedural errors that render the Rezoning Ruling

unfair and/or incorrect."

134. The Petitioners presented no credible evidence that

the Respondent's adoption of the current rezoning plan was

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."

Agrico Chemical Co. vs. State Dep't. of Env. Reg. , 365 So. 2d

759, 763 (Fla. 1st DCA 1978), cert. den. , 376 So. 2d 74 (Fla.

1979).

135. There is no evidence that the Respondent acted without

thought or reason or irrationally in adopting the current

rezoning plan. There is no evidence that the Respondent adopted

the plan without reviewing supporting facts or logic, or acted

despotically in doing so. In fact, to the contrary, the evidence

establishes that the current plan was adopted by the Respondent

after full consideration of the factors identified within the

rezoning process, as well as consideration of historical and

anticipated future rezoning plans.

136. The Petitioner asserted that the adoption of the

current plan was "not supported by competent or substantial

evidence grounded in the specific variables identified by School

Board policy as controlling in such matters."

137. The language of the referenced School Board policy

clearly states that consideration of such variables is

discretionary, rather than "controlling."

138. There is no evidence that the Respondent adopted the

current rezoning plan without reviewing the substantive

information provided by staff prior to and during the rezoning

meetings. There is no evidence that the data upon which the

Respondent based the decision was not competent.

139. The Petitioners presented no credible evidence that

the Respondent's staff failed to consider the specific variables

identified at Step 4 of the rezoning process. The consideration

and balancing of the referenced factors is clearly within the

discretion of the Respondent and, absent flagrant abuse of their

discretion, should not be revisited. See Cortese v. Sch. Bd. of

Palm Beach County , 425 So. 2d 554, 558 (Fla. 4th DCA 1982); Polk ,

373 So. 2d at 962.

140. As to the alleged "procedural errors that render the

Rezoning Ruling unfair and/or incorrect," the Petition lacked

specificity related to the issue of whether the rezoning was an

"invalid exercise of delegated legislative authority." The

Petitioners essentially asserted that the Respondent failed to

follow the applicable rulemaking procedures or requirements set

forth in the Administrative Procedures Act, that the Respondent's

adoption of the attendance zones was arbitrary or capricious, and

that the adoption of the attendance zone imposes regulatory costs

on a regulated person, county, or city which could be reduced by

the adoption of less costly alternatives that substantially

accomplish the statutory objectives.

141. The asserted procedural errors were identified through

discovery propounded by the Respondent and related to the alleged

failure to provide "the full panoply of public notice protections

mandated by law." Such alleged procedural errors have been

addressed herein.

142. The Respondent has asserted that the Petitioners are

without standing to challenge the rezoning plan. The evidence

fails to establish that any Petitioner is substantially affected

by the school attendance rezoning plan at issue in this case.

143. Subsection 120.56(1)(a), Florida Statutes, provides

that "[a]ny person substantially affected by a rule or a proposed

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." (Emphasis supplied)

144. Accordingly, in order to establish standing, each

Petitioner must demonstrate that they are "substantially

affected" by the rule; i.e. , that the application of the rule

will result in a real and sufficiently immediate injury in fact

and that the alleged interest is arguably within the zone of

interest to be protected. As to the requirement that the

Petitioner establish that the injury is sufficiently real and

immediate, the alleged injury can not be based on pure

speculation or conjecture. The zone of interest must affect an

area of individual rights that are protected by law. Lanoue v.

Fla. Dep't of Law Enforcement , 751 So. 2d 94, 96 (Fla. 1st DCA

1999); Ward v. Bd. of Trs. of Internal Improvement Trust Fund ,

651 So. 2d 1236, 1237 (Fla. 4th DCA 1995); All Risk Corp. of Fla.

v. State Dep't of Labor & Employment Sec. , 413 So. 2d 1200, 1202

(Fla. 1st DCA 1982).

145. As to the non-testifying Petitioners, there was no

evidence presented to establish the manner and extent that any

would be affected whatsoever by the school rezoning;

accordingly, it is concluded that such Petitioners lack standing

to challenge the current rezoning plan.

146. As identified herein, four of the Petitioners

testified at the hearing as to their children and the specific

circumstances under which each believed their children would be

affected by the rezoning. Clearly, the Petitioners are unhappy

that the rezoning process will result in a change of school

attendance zones for their children, and this Order should not

be read to diminish the concerns or efforts of the Petitioners

in their attempts to provide a proper educational experience for

their children. Nonetheless, the evidence fails to establish

that any of the testifying Petitioners are "substantially

affected" by the school rezoning at issue in this proceeding.

147. There is no credible evidence that any student will

suffer a "real and immediate injury in fact" by the Respondent's

plan to transfer them from one high school to another. There is

no credible evidence that substantially-similar educational

opportunities will not be available to students at both Ocoee

and Wekiva High Schools.

148. Although there was testimony related to current

curriculum differences between the two schools, the evidence

fails to establish that any student currently involved in a

course of study unavailable at the new school will be impacted

by curriculum differences. There is no credible evidence that

any of the Petitioners currently attending Ocoee High School and

enrolled in any course of study not available at Wekiva High

school has been denied an opportunity to remain at Ocoee and

complete the course of study. The sole student-Petitioner who

is taking a Japanese language course not available at the new

school appears to fall within the Respondent's transfer policy

intended specifically to address such circumstances. There is

no evidence that the Respondent has denied an academic transfer

application from the student.

149. Absent evidence that a student's academic opportunity

will be negatively impacted, merely being assigned to attend a

different school does not cause injury. There is no evidence

that any legally protected individual rights were affected by

the current rezoning plan. There is no constitutional or legal

right to attend a particular school or to attend any school with

preferred peers. Hill v. Sch. Bd. for Pinellas County , 954 F.

Supp. 251 (M.D. Fla. 1997); Sch. Bd. of Orange County v.

Blackford , 369 So. 2d 689 (Fla. 1st DCA 1979).

FINAL ORDER

Based on the foregoing Findings of Fact and Conclusions of

Law, it is hereby ORDERED that the Petition for Hearing filed in

this case is DISMISSED.

DONE AND ORDERED this 11th day of April, 2008, in

Tallahassee, Leon County, Florida.

S

WILLIAM F. QUATTLEBAUM

Administrative Law Judge

Division of Administrative Hearings

The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

[phone] SUNCOM 278-9675

Fax Filing [phone]

www.doah.state.fl.us

Filed with the Clerk of the

Division of Administrative Hearings

this 11th day of April, 2008.

ENDNOTE

1/ All references to Florida Statutes are to the 2007 version,

unless otherwise indicated.

COPIES FURNISHED :

James A. Gustino, Esquire

James A. Gustino, P.A.

Post Office Box 770759

Winter Garden, Florida 34777

Andrew B. Thomas, Esquire

1625 Lakeside Drive

Deland, Florida 32720-3037

Edward G. Guedes, Esquire

Greenberg Traurig, P.A.

1221 Brickell Avenue

Miami, Florida 33131

Brian F. Moes, Esquire

Orange County School Board

445 West Amelia Street

Post Office Box 271

Orlando, Florida 32802-1129

Ronald (Ron) Blocker, Superintendent

Orange County School Board

Post Office Box 271

Orlando, Florida 32802-0271

Deborah K. Kearney, General Counsel

Department of Education

Turlington Building, Suite 1244

325 West Gaines Street

Tallahassee, Florida 32399-0400

Dr. Eric J. Smith

Commissioner of Education

Department of Education

Turlington Building, Suite 1514

325 West Gaines Street

Tallahassee, Florida 32399-0400

Scott Boyd, General Counsel

Administrative Procedures Committee

Holland Building, Room 120

Tallahassee, Florida 32399

Liz Cloud, Program Administrator

Administrative Code

Department of State

R. A. Gray Building, Suite 101

Tallahassee, Florida 32399

NOTICE OF RIGHT TO JUDICIAL REVIEW

A party who is adversely affected by this Final Order is

entitled to judicial review pursuant to Section 120.68, Florida

Statutes. Review proceedings are governed by the Florida Rules

of Appellate Procedure. Such proceedings are commenced by

filing the original Notice of Appeal with the agency clerk of

the Division of Administrative Hearings and a copy, accompanied

by filing fees prescribed by law, with the District Court of

Appeal, First District, or with the District Court of Appeal in

the Appellate District where the party resides. The notice of

appeal must be filed within 30 days of rendition of the order to

be reviewed.