
    In the Matter of Sara Tinsley et al., Individually, as Parents, and as Presidents of Parent-Teacher Associations in the Borough of Manhattan, Appellants, v. Joseph Monserrat et al., Constituting the Board of Education of the City of New York, et al., Respondents.
    Argued March 3, 1970,
    decided March 5, 1970.
    
      
      Michael B. Rosen and Nancy E. LeBlanc for appellants.
    I. Appellant’s failure to comply with section 2590 of the Education Law invalidated the redistricting for the Borough of Manhattan. The board failed to publish a tentative redistricting plan in compliance with section 2590. II. The board failed to hold a public hearing which gave notice of the redistricting changes for Manhattan. (Matter of Binghamton Citizens Penn-Can Route 17 Highway Committee v. Frederick, 7 A D 2d 170; Powelton Civic Home Owners Assn. v. Department of Housing & Urban Development, 284 F. Supp. 809; Western Addition Community Organization v. Weaver, 294 F. Supp. 433; Northwestern Bell Tel. Co. v. Nebraska State Ry. Comm., 297 U. S. 471.) III. There is no support in the record for appellant’s contention that the invalidity of the proposed plan was known by the public and acted upon at the hearings. IV. The board’s final plan violated constitutional requirements and the requirements of State policy and law by removing petitioners ’ predominantly black schools from an integrated district and placing them in a segregated district, thereby denying petitioners the opportunity to participate in integrated educational programs. (Matter of Vetere v. Allen, 15 N Y 2d 259; Addabbo v. Donovan, 22 A D 2d 383, 16 N Y 2d 619, 382 U. S. 905; Balaban v. Rubin, 20 A D 2d 438, 14 N Y 2d 193, 379 U. S. 881; Olson v. Board of Educ. of Union Free School Dist. No. 12, 250 F. Supp. 1000; Offermann v. Nitkowski, 248 F. Supp. 129; Matter of Katalinic v. City of 
      
      Syracuse, 44 Misc 2d 734; Matter of Strippoli v. Bickal, 16 N Y 2d 652, 21 A D 2d 365; Van Blerkom v. Donovan, 15 N Y 2d 399; Taylor v. Board of Educ. of City School Dist. of City of New Rochelle, 191 F. Supp. 181, 294 F. 2d 36, 368 U. S. 940; Blocker v. Board of Educ. of Manhasset, 226 F. Supp. 208.)
    
      J. Lee Rankin, Corporation Counsel (Alfred Weinstein, Stanley Buchsbaum and Charles D. Maurer of counsel), for respondents.
    I. Hearings were required on the tentative plan only. The proposal here carried clear notice of its infirmity. Under the circumstances the hearing served its purpose and the letter and spirit of the statute were satisfied. (Morgan v. United States, 304 U. S. 1.) II. School district heterogeneity is not here involved. Even if it were, the record is bare of facts sufficient to warrant an inference of arbitrary action with regard to it. In any event, the public interest requires that more meaningful guidelines be provided for action pursuant to the order of remand. (Matter of Buck v. Hurd, 281 App. Div. 115, 307 N. Y. 730; Matter of Wong v. Finkelstein, 299 N. Y. 205, 338 U. S. 859; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508; Howard S. Tierney, Inc. v. James, 269 App. Div. 348.)
    
      Stephen L. Kass, Sheila Rush Jones, Caroline Heft, C. Bedford Johnson and Mary Marsh Zulack for The East Harlem Coalition For Community Control, amicus curiae.
    
    I. The court below erred if it held that Broum, prohibits any redistricting which results in the inclusion of schools attended by petitioners’ children in a district less integrated than formerly. Brown dealt with school segregation not districts. (Taylor v. Board of Educ. of City School Dist. of City of New Rochelle, 191 F. Supp. 181; Wright v. Rockefeller, 211 F. Supp. 460, 376 U. S. 52.) II. Brown’s fundamental guarantee is equality of educational opportunity. III. Even if petitioners’ allegations are construed to assert a violation of the principle of equal educational opportunity set forth in Brown, Special Term should haVe ordered a hearing to assess the comparative educational benefits to be derived from the specified district-wide activities and the board’s districting plan. IV. Respondents-appellants’ districting plan did not fail to comply with the districting criteria set forth in section 2590-b of the Education Law.
    
      
      Peter S. Herman for Concerned Parents of East Harlem, amicus curiae. I.
    The Board of Education’s tentative redistricting plan for the Borough of Manhattan failed to comply with section 2590 of the Education Law. II. The Board of Education must be required to hold new public hearings to allow citizens to express their sentiments on the creation of an All-East Harlem School District.
   Chief Judge Fuld.

We agree with the conclusion reached by Presiding Justice Stevens in his dissenting opinion in the Appellate Division. The Board of Education must prepare and submit a new school districting plan for the Borough of Manhattan and thereafter hold a public hearing on such plan in accordance with the provisions of the Education Law (§ 2590-b; L. 1969, ch. 330, as amd. by L. 1970, ch. 3).

It is clear that the ‘ ‘ Proposed Plan for a Community School District System,” upon which the hearings herein were held, did not comply with the provisions of section 2590-b of the Education Law. Subdivision 2 (par. [b]) of that section recites that “ [t]he interim board of education shall prepare a tentative districting plan defining the boundaries of the community districts ” and that no such district shall contain less than twenty thousand pupils in average daily attendance in the schools under its jurisdiction ”. And subdivision 2 (par. [c] explicitly declares that, after the “ tentative districting plan [is] published * * * the interim board of education shall hold a public hearing or hearings thereon.”

The board’s “ tentative ” or proposed plan created districts which contained fewer pupils than the 20,000 prescribed by the statute and, by that token, it could not possibly have been accepted or adopted. In other words, no 1 ‘ tentative districting plan” (as defined by the Education Law provision) was ever published. Consequently, the hearings which the board in good faith held did not satisfy the statute’s requirements. This was no minor deviation. It was the legislative design that the local community be heard on the plan under consideration, which was possible of acceptance. Moreover, the Education Law unequivocally places the responsibility on the board, not on the members of the public attending the hearings, to formulate the initial proposal for such valid plan and to hold public hearings upon that plan prior to its adoption. Concededly, no hearings were held on the plan which the board thereafter announced and adopted.

This is not to say that if, as a result of the hearings held, the board decides to modify its original valid proposal, it must resubmit the plan for new and further hearings. The plan finally adopted, however, must be derived from, and bear some reasonable resemblance to, the one initially proposed. In the present case, there was no such relationship between the plan initially published, providing for an impermissible and illegal division of the Borough of Manhattan into six school districts, and the radically different plan ultimately adopted, calling for the creation of five districts.

The order appealed from should be reversed, with costs in this court and the Appellate Division, and the case remitted to the Supreme Court, New York County, for further proceedings not inconsistent with this opinion.

Judges Burke, Scileppi, Bergan, Breitel, Jasen and Gibson concur.

Order reversed, etc.  