In the Matter of Walter Van Blerkom et al., Suing on Behalf of Themselves and All Persons Similarly Situated, Appellants, v. James B. Donovan et al., Constituting the Board of Education of the City of New York, Respondents, 22 A.D.2d 71

Per Curiam. The order dismissing the petition to review the action of the Board of Education of the City of New York in rezoning elementary Public School 6, Manhattan, effective as of the school term commencing September, 1964, should be affirmed, without costs, on the opinion of Justice Litpiano at Special Term. However, in view of the dissent of Justice Steiteb,—calling for a trial — it is necessary to indicate our views as to why no trial is necessary.

Essentially, the dissent would require a trial to determine whether the rezoning accomplished herein was dictated by a desire to accomplish integration' and reduce racial imbalance, or by the need for reducing overutilization of the facilities of Public School 6. A trial, however, is unnecessary because in our view of the case, if the Board of Education approved the rezoning to correct a racial imbalance, it acted within the scope of its powers; and such purpose would constitute a reasonable basis for its action. The Court of Appeals so indicated in Matter of Balaban v. Rubin (14 N Y 2d 193, cert. den. 379 U.

S. 881). (To the same effect, see Matter of Vetere v. Mitchell, 21 A D 2d 561; Matter of Strippoli v. Bickal, 21 A D 2d 365.) It is within the province of the board to conclude that racial imbalance i;s harmful to education, and to draw school zones in order to effectuate a better racial balance in the school system. While we agree with the dissent that no constitutional or statutory mandate directs the board to promote integration, there is equally no prohibition against the board’s attempt to achieve integration. The hoard is free to act in this sphere untrammeled by the courts.

Certainly in the area of educational value judgments, the courts should not attempt to substitute their views for those of the board if there is some reasonable basis for the board’s conclusion. Therefore, no trial is necessary to determine to what extent considerations of racial imbalance in the schools prompted the rezoning of Public School 6, and whether other criteria such as overutilization of facilities induced such action.

In either event, it was the responsibility of the board to make the determination., In our view, it would have been a valid and substantial basis for sustaining the board’s action in this case if the main consideration for its action was the effectuation of a better racial balance in the school system. A trial of the issues suggested by Justice Steuer’s dissent would therefore be a futile endeavor.