Sands v Horenstein Verified Answer

    STATE DEPARTMENT OF EDUCATION 
BEFORE: THE COMMISSIONER

In Che Matter
of :

The Appeal of ERIC SANDS and MARGOT SANDS, 
minors, by EVELYN SANDS and HERMAN SANDS, 
their parents; ELISABETH LIEBERMAN and :
ANDREW LIEBERMAN, minors, by MARGERY 
LIEBERMAN and MARTIN L. LIEBERMAN, their 
parents; MARC BREWSTER, a minor, by :
ALFREDA BREWSTER, his parent; MATTHEW 
JASKOWIAK and JULIE JASKOWIAK, minors, by
JOAN JASKOWIAK and EDMUND C. JASKOWIAK, : VERIFIED ANSWER
their parents; and MARA ELMAN, a minor, 
by ANNA ELMAN and ARTHUR ELMAN, her parents;
Individually and on Behalf of All Similarly :
Situated Persons Within Rockville Centre 
Union Free School District No. 21,

Petitioners,
From the Actions of the Rockville Centre :
Union Free School District No. 21, Town 
of Hempstead, County of Nassau,

»

-against-
PETER KORENSTEIN, PAUL J. SULLIVAN, :
CHRISTINE G. HEIBERG, DOROTHY McGARVEY
and MORTON M. POLLAK, individually and.
as Members of the Board of Education of :
Rockville Centre Union Free School 
District No. 21, RICHARD S. BYERS, 
individually and as Superintendent of :
Schools of Rockville Centre Union Free 
School District No. 21 and Rockville 
Centre Union Free School District No. 21, :

Respondents.
x



TO THE COMMISSIONER OF EDUCATION:

Respondents by their attorneys, Kaufman, Taylor, Kimmel 
& Miller, for their answer to the petition herein:

1. Respondents admit that petitioners are minors 
attending the Watson School and, except as so admitted, re­
spondents deny knowledge or information sufficient to form a 
belief as to each and every allegation contained in paragraph "2".

2. Respondents deny the allegations contained in para­
graph T .

3. Respondents deny the allegations contained in para- 

grapn b .
4. Respondents deny the allegations contained in para­

graph "7".
5. Respondents deny that their acts or any alleged 

omissions on their part to act consist of, are evidenced by, or 
have resulted in any of the conditions referred to in paragraphs 
"8" through "23", both inclusive.

6. Respondents deny the allegations contained in para­

graph "9".
7. Respondents deny the allegations contained in para­

graph "10".
8. Respondents deny the allegations contained in para-



graph "ll" except they admit that the average Intelligence 
Quotient at Watson School is below that of other elementary 
schools in the school district.

9. Respondents deny the allegations contained in para­
graph "12" except they admit that average achievement level for 
students at the Watson School, as heretofore recorded, is below 
that recorded at other elementary schools in the school district.

10. Respondents deny the allegations contained in para­
graph "13" except they admit that the average score recorded 
under the New York State Pupil Evaluation Program by students
at the Watson School is below the average score recorded at 
other elementary schools within the school district.

11. Respondents deny the allegations contained in para­
graph "14" except they admit that the average achievement level 
for recent "graduates" of the Watson School, as recorded in 
tests given by the Junior High School, is below the average 
recorded for "graduates" of other elementary schools within the 

school district.
12. Respondents admit the allegations contained in 

paragraph "15".
13. Respondents admit the allegations contained in 

paragraph "16".

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14. Respondents admit the allegations contained in

paragraph "17".
15. Respondents deny the allegations contained in para-

graph "13".
16. Respondents deny the allegations contained in para-

graph "19”.
17. Respondents deny the allegations contained in para-

graph "20,:.
18. Respondents deny the allegations contained in para-

graph "21”.
19. Respondents deny the allegations contained in para-

graph "22".
20. Respondents deny the allegations contained in para-

graph "23".
21. Respondents deny the allegations contained in para-

graph "24". •

22. Respondents deny the allegations contained in para-

graph "25".
23. Respondents deny the allegations contained in para-

graph "26", except that respondents allege that they have :re-

viewed, discussed and considered, from time to time, various 
methods of maximizing the educational opportunities of all

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Watson School students and in connection therewith have con­
sidered whether the methods referred to in paragraph "26M should 
be instituted and employed.

24. Respondents deny the allegations contained in para­

graph "27".
25. Respondents deny the allegations contained in para­

graph "28".
AS A FIRST AFFIRMATIVE DEFENSE

26. The appeal herein to the Commissioner was not in­
stituted within thirty days of the making of the decision or the 
acts of which complaint has been made by the petitioners.

27. The appeal herein is, therefore, barred by laches 
and by Section 275.16 (8 NYCRR 275.16) relating to appeals 
brought pursuant to §210 of the Education Law.

AS A SECOND AFFIRMATIVE DEFENSE

28. Contrary to the allegations of petitioners that 
respondents have acted arbitrarily and capriciously and that by 
their acts they have produced a deficient educational environ­
ment at the Watson School which they have refused to correct, 
the facts are otherwise in that respondents, including the 
predecessors of the individual respondents, have sought for

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twenty-three years to establish at the Watson School a program 
of education suitably designed to meet the individual needs of 
its students and consonant with the promotion of racial equality, 
the encouragement of democratic aspirations and the development 
of excellence in learning, all with the knowledge and participa­
tion of the community in which the Watson School is located.

29. The Watson School was constructed and opened in 
1953 to replace the old Clinton School as part of a distriewide 
expansion program. The Clinton School was an outmoded building 
and its enrollment of about one hundred students had become almost 
entirely black. The new Watson School was erected on a new site 
and was able to accommodate more than two hundred children of 
whom more than half were white. The establishment of the Watson 
School, including the selection of its site, was based upon 
recommendations made by consultants from Teachers College of 
Columbia University who had been retained by the then Board of 
Education of the School District. In addition, that Board of 
Education had the advice of a representative Citizens Committee 
in all of the aspects of the planning of the Watson School. Zone 
lines for the Watson School were established with careful con­
sideration given to the number of students in the zone in rela­
tion to school size, proximity to the school and other sound 

criteria.

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30. Prior to 1963, the School District did not maintain 
records of students by race but it has been estimated that at 
the time of the opening of the Watson School in September 1953 
the student body was about 40% black and 60% white. In the 
intervening years the number of black children remained fairly 
constant but the number of white children attending Watson School 
diminished chiefly because St. Agnes Parochial School, which was 
nearby, was expanded and families interested in Catholic paro­
chial education attempted to move into the Watson area.

31. On June 21, 1963 the enrollment by grade and race

was as 

Grade

follows:

Negro White Total
Per Cent 
of Negro

Per Cent 
of White

Kindergarten 21 27 48 44 56
1 16 7 23 70 30
2 24 9 33 73 27
3 12 9 21 57 43
4 10 13 23 43 57
5 8 19 27 30 70
6 11 12 23 48 52

Total 102 96 198 52 48

32. By letter dated June 14, 1963, then Commissioner 
James E. Allen, Jr. inquired of all chief local school adminis­

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trators and presidents of the boards of education of the State of 
New York, including those of the respondent school district 
herein, that he be furnished with a statement indicating the 
situation in each school district with regard to any problem of 
racial imbalance, racial imbalance being defined by him, nfor 
the purpose of this report," as a school "having 50 percent or mor; 
Negro pupils enrolled." Thereupon, the President of the respon­
dent School Board reported to Commissioner Allen, in substance, 

as follows :
(a) that by the standard defined by the Commissioner 

for the proposed report, Watson School as of 
June 21, 1963 showed a slight imbalance to the 
extent that the black students comprised 527o
of the total school population;

(b) that forecasting future enrollment was difficult 
because an urban renewal project was then under 
way in the area where most of the black students 
resided and St. Agnes Parochial School had 
apparently reached its capacity and this would 
impose a limitation on the number of white 
children in the Watson zone who might be enter­
ing the parochial school in the years ahead;

(c) that in view of the fact that the degree of 
imbalance was only a marginal one and the 
quality of education being furnished was 
believed by the School Board and its Admin­
istrators to be excellent, the School Board 
did not believe it would serve the best 
interests of the children in Watson or in
any of the other elementary schools to institute 
any basic changes in school organization at that

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time although consideration had been given to 
such proposals as open enrollment, compulsory 
transfer, relocation of zone lines, the 
"Princeton Plan", as well as to other variant 
solutions to the problem of racial imbalance.

33. As appears from paragraph "31" above, the kinder­
garten enrollment has generally tended to be larger than in the 
other grades because all five-year old children in the Watson 
zone attended that school rather than St. Agnes Parochial School 
which did not maintain a kindergarten. Thereafter, many children 
were transferred by their parents to the first grade of St. Agnes 
Parochial School. Actually, the majority of all children in the 
Watson School zone were and still are white but many are of 
Catholic persuasion and have been directed by their parents to 

the parochial school.
34. Commencing with the school year September 1964, 

upon recommendation of Dr. Herbert F. Johnson, its Superintendent 
(and, shortly thereafter, Associate Commissioner of Education of 
the State of New York), the respondent School Board introduced a 
program of voluntary transfer of black students from Watson 
School and white children from other schools to Watson where such 
transfers would continue to be productive of better racial 
balance and limited only by the extent that class size would 
permit. Transportation was provided in implementation of this

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program and the then existing enrichment program at the Watson 
School was continued and enlarged.

35. As the result of the foregoing efforts, the percent­
age of black pupils in the Watson School has shown the following 

changes to the date hereof:

Year Total Enrollment Percent of Bl

1964-65 195 51

1965-66 163 42

1966-67 149 35

1967-68 181 29

1968-69 204 32

1969-70 229 37

1970-71 218 40

1971-72 220 41

1972-73 233 45

1973-74 . 203 48

1974-75 183 49

1975-76 173 52

36. During the foregoing period of the voluntary ex­
change program at the Watson School, the following special 
supportive programs were also introduced at the Watson School.

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Afternoon enrichment program in French, art, 
Spanish culture, sewing, woodworking, reading, 
chess, cooking, etc.
Staff liaison with homes of disadvantaged 
children.
Introduction of Headstart Program in 1965 and 
instruction provided for parents of children 
in the program.
Pre-kindergarten program.
Hot lunch program for pre-kindergarten students.
Summer Headstart Program (2 summers in 
conjunction with EOC).
In 1970, a Summer Title I Reading Program for 
children in Grade 3.
The Watson School was made available for 
programs outside of school hours for black 
students.
Cooperative exchange art program with Molloy 
College.
Alpha time materials and methods of instruction 
were introduced in the kindergarten and first 
grade.
In September 1974, the Berkeley Project was 
introduced as a new means of teaching children 
about their own bodies.
During the summer of 1975, the Watson 
professional staff was provided with a con­
sultant on inter-aging children during the 
current school year.

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(m) In November, 1975, a Green Circle Girl Scout 
Program on human relations was commenced.

(n) From time to time, special adult education 
classes have been offered in the Watson School 
for parents and other adults who were deprived 
of educational opportunity in their youth.

(o) The average class size has been maintained, 
generally, at a lower level than in any other 
school in the district.

(p) More instructional materials per pupil have 
been made available at the Watson School than 
at any other school within the district.

(q) Special teachers of art, music and physical 
education have spent a greater percentage of 
their time, based on pupil enrollment, in the 
Watson School than in any other elementary 
school.

(r) The Watson School is one of the two most 
modern of the six elementary schools in the 
district.

(s) The number of students per aide in the 
Watson School is 8.7, whereas the numbers 
for the other five schools are, respective­
ly, 12.2, 14.8, 17.1, 17.5 and 21.8.

37. Future plans for the Watson School, which are 
different or beyond the contemplated plans for other schools 
within the School District, include plans for further smaller 
average class size and lower staff-pupil ratio; increases in

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art supplies, general supplies, work books, etc.; more teacher 
aides; housing the school district social worker at the Watson 
School and thereby producing increased availability to parents, 
students and staff; establishing a joint venture with the local 
village authorities for early intervention and assistance to 
families with pre-school children who are on the A.D.C. rolls; 
and a pre-kindergarten for three-year and four-year old children.

38. Despite the foregoing efforts made by the re­
spondents, the steady reduction in the percentage of black students 
at the Watson School in the period from 1964 through 1968, as set 
forth in paragraph "32" above, was reversed during the succeeding 
years so that the present percentage of black students is approxi­
mately the same percentage as existed in 1963. The reduction 
reflected the reluctance of black parents to permit their 
children to be transported out of the Watson zone to other 
elementary schools in the school district as well as the re­
luctance of white parents in the other elementary schools to 
transfer their children to the Watson School. The former atti­
tudes of both white and black parents have undergone changes, 
especially on the part of black parents who came to realize that 
the Watson School offered a high quality of education to their 
children and that such education was available to them in their

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i



own immediate neighborhood. Consequently, where as many as 56 
black pupils were transferred from the Watson School in 1966-67 
and 55 in 1967-68, the number transferring thereafter steadily 
declined with the result that there are, in the current school 
year, only 25 black students who have opted to leave the Watson 
School. As a lesser number of black children have been trans­
ferred, the availability of spaces for white children from out­
side the zone has been correspondingly reduced. Thus, in the face 
of black reluctance to leave the Watson School, the voluntary 
transfer program initiated by Dr. Herbert F. Johnson in 1963 is 
not serving, in its present form, to significantly reduce the 
percentage of black students at the Watson School.

39. The Board and the administrative staff of the School 
District contemplate a renewal of interest on the part of more 
black parents in transferring their children from the Watson 
School to the other elementary schools, commencing with the Fall 
of 1976, and likewise, a more intensive and expanded effort will 
be made to encourage white parents in the other elementary 
schools to consider transporting their children to the Watson 
School.

40. The respondents have made and are making a serious 
effort to bring about equal opportunity for learning among all 
the children in the School District, especially among those

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black children who reside in the Watson School zone.
41. The Watson School is an.integrated school that 

affords to its students a high quality education in an integrated 
environment where blacks and whites may intermingle and share 
common learning experiences.

42. Respondents have complied and do comply with the 
standards of racial integration as set forth by the Regents 
of the State of New York.

WHEREFORE, respondents respectfully pray that the petition 

herein be denied.
KAUFMAN, TAYLOR, KIMMEL & MILLER 
Attorneys for Respondents 
Office & P. 0. Address 
41 East 42nd Street 
New York, New York 10017 

(212) 682-2983

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STATE OF NEW YORK)
) s s •

COUNTY OF NASSAU )

Richard S. Byers being duly sworn, deposes and says that 
he is one of the respondents in this proceeding; that he 
has read the annexed answer and knows the contents 
thereof; that the same is true to the knowledge of deponent 
except as to the matters therein stated to be alleged 
upon information and belief, and as to those matters he 
believes it to be true.

Subscribed and sworn to before
me this 5th day of April
1976.

77

N _ . ■ * *  i or*
o. 31-9294090 

2d m Now York County . 
n ixs.rcs Iv larck  30, I 3 / £