Appeal of ANITA BOAKYE-NKANSAH from action of the New York City Department of Education regarding a school closing.

Decision No. 17,547

(December 7, 2018)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. DeGori, Esq., of counsel

ELIA, Commissioner.--Petitioner challenges the April 25, 2018 vote and resolution of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“DOE” or “respondent”) to close Crotona Academy High School (12x321) (“Crotona” or “Crotona Academy”).[1]  The appeal must be dismissed.

Petitioner is a student who attended Crotona Academy, a New York City transfer school, during the 2017-2018 school year.  During that school year, Crotona served students in grades 9 through 12 in building X358 (“X358” or “the building”), located in the Bronx.  According to the record, transfer schools are small, academically rigorous high schools designed to re-engage students who have dropped out of high school or have fallen behind.

On March 2, 2018, DOE issued an Educational Impact Statement (“EIS”) proposing to close Crotona Academy at the end of the 2017-2018 school year in order to “reduce the amount of excess transfer school seats currently available” in the Bronx.  According to the proposal, Crotona was chosen as the transfer school to be closed because “[d]espite prior interventions, Crotona Academy continues to struggle with attendance, absenteeism, and performance.”  According to the EIS, if the proposal was approved, Crotona Academy “will no longer exist as a transfer school option beginning in the 2018-2019 school year.”  Crotona students who met graduation requirements by the end of the 2017-2018 school year would graduate from Crotona Academy; those students “who [did] not meet graduation requirements will receive individualized enrollment support from the superintendent’s staff, enrollment staff, and guidance counselors, who will help students and families think through the options presented and offer students seats in other transfer schools.”

On April 12, 2018, DOE held a joint public hearing regarding the proposal.  Approximately 130 people attended the hearing, including representatives of Crotona Academy and DOE.

On April 24, 2018, DOE published a Public Comment Analysis (“Analysis”) summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to DOE.  On April 25, 2018, the PEP met and voted to approve the closure of Crotona Academy.  This appeal ensued.  Petitioner’s request for interim relief was denied on June 14, 2018.

In this appeal, petitioner challenges DOE’s determination to close Crotona and requests an annulment of the PEP vote.  Respondent contends that it has complied with the Education Law in all respects, that petitioner has not met her burden of proof in demonstrating a clear legal right to the relief sought, and that its determination to close Crotona Academy was within its discretion and was neither arbitrary nor capricious.

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner has failed to meet her burden of proof.  Generally, boards of education have the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153).  Accordingly, a board’s decision to reorganize its schools will not be set aside unless it is arbitrary, capricious, or contrary to sound educational policy (Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).  Further, pursuant to Education Law §§2590-h(17) and 2554(9), in respondent’s district, the Chancellor of the City School District of the City of New York (“Chancellor”) has the power to establish and maintain such schools or classes that he or she “shall deem necessary to meet the needs and demands of the city” (see Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeal of Torres, 46 id. 301, Decision No. 15,515).

In addition, Education Law §2590-h(2-a) requires the Chancellor to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District.  The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform its comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  Education Law §2590-h(2-a)(b) outlines the required information to be contained in an EIS.  As discussed in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review under Education Law §2590-h(2-a) is substantial compliance.

Notably, petitioner does not allege that the EIS is deficient or that it fails to include any of the statutorily required elements.  Rather, petitioner alleges that DOE’s determination to close Crotona Academy was arbitrary, capricious, and irrational for the following reasons: because Crotona was not properly evaluated, as compared to other transfer schools, prior to the proposal to close the school, and that a transfer school other than Crotona would have been more appropriately chosen as the school to be closed; because DOE failed to engage in adequate consultation with the community — including a failure to properly notify the community of Crotona’s risk of closure — before DOE made its determination; and because the Superintendent for Transfer Schools and District 12 (“Superintendent”) did not abide by the terms of Chancellor’s regulation A-655[2] (“A-655”) regarding consultation with the School Leadership Team (“SLT”) with respect to Crotona’s possible closure.  Petitioner also raises concerns that an alleged, pending Equal Employment Opportunity Commission complaint against the Superintendent required the Superintendent to recuse himself from overseeing the proposed closure of Crotona.

Petitioner asserts that Crotona was not fairly evaluated by DOE, as compared to other transfer schools, prior to the decision to close it.  To this end, petitioner notes that Crotona was rated by the New York State Education Department (“Department”) as being in Good Standing under the State accountability system for the previous five school years and that, based on its performance when compared to other transfer schools in the Bronx and throughout the city, DOE’s decision to close Crotona instead of another transfer school in the Bronx was arbitrary.  Petitioner also provides documents derived from data from the DOE School Performance Dashboard that compare Crotona Academy with eight other transfer schools citywide with respect to student characteristics, graduation rate, college readiness, postsecondary enrollment, average Regents completion rate, and attendance rate.  Petitioner asserts that the data “shows that a number of other transfer schools have performed lower on these metrics and yet were not proposed for closure.”

In addition to requesting that I nullify the decision to close Crotona Academy, petitioner requests a “thorough review” of the process of how the school was evaluated and proposed for closure.  To the extent petitioner requests a further investigation into this matter, such investigations fall outside the scope and nature of an appeal commenced pursuant to Education Law §310.  An appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of Huffine, 48 Ed Dept Rep 386, Decision No. 15,893; Appeal of D.K., 48 id. 276, Decision No. 15,857).

Respondent acknowledges that Crotona received the Good Standing designations, but also asserts, in the EIS and the Analysis, as well as in its answer and reply, that DOE’s determination to close Crotona Academy was made “on a case-by-case basis and based on a holistic assessment ....”  In other words, as stated in the Superintendent’s affidavit, the proposal to close Crotona Academy at the end of the 2017-2018 school year was based on the “collective judgment ... that Crotona has been struggling to a significant degree and, in fact, is unlikely to improve its performance in the near term ....”  The Superintendent attests in his affidavit that other Bronx transfer schools under his jurisdiction had shown improvement, while Crotona had not.

As a general proposition, petitioner points out that Crotona Academy’s accountability status under the State accountability system in the 2016-2017 school year was in Good Standing, while several other transfer schools in the City School District, including two located in the Bronx, were identified as Focus or Priority Schools.  However, while a school’s accountability status as a school in Good Standing would prevent the State from requiring its closure, it does not foreclose the possibility that a local school district such as respondent could direct closure of such a school for other valid reasons.  The converse is also true.  School closure decisions are complex and require a holistic analysis of the school’s performance.  The existence of other transfer schools in the district that have a lesser accountability status for purposes of State accountability does not foreclose the possibility that valid reasons exist for closing a school that has a Good Standing designation (cf. Appeal of Breslow, et al., 56 Ed Dept Rep, Decision No. 17,080 [upholding the closure of Blue Ribbon school based on impact on greater number of students and a more central location than another school]).

Moreover, decisions about school district reorganization and the closing of school buildings are within the discretion of a board of education and will not be set aside unless they are shown to lack a rational basis or to be contrary to sound educational policy (Appeal of Kaufmann, et al., 57 Ed Dept Rep, Decision No. 17,250; Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 id. 269, Decision No. 16,530; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  While respondent’s EIS indicates that the decision to close Crotona Academy was based on the school’s own declines in attendance and academic performance, it does not indicate that the decision was based on a comparison with other transfer schools.  Accordingly, the issue before me in this appeal is whether petitioner has proven that the decision to close Crotona Academy lacked a rational basis or was contrary to sound educational policy, and not whether respondent could have chosen to close other transfer schools in the Bronx or elsewhere in the district based on their poor performance.  If closure of Crotona Academy is justified on this record, the fact that other transfer schools in the Bronx or citywide demonstrated similar or even poorer performance on various indicators does not establish that the decision to close Crotona Academy was arbitrary and capricious or contrary to sound educational policy.

As discussed by the Superintendent in his affidavit, transfer schools are evaluated by comparing them with a “Comparison Group,” which is made up of “students from other schools across the City who were the most similar to the students at the school being evaluated, based on their incoming test scores, disability status, economic need, and over-age status.”  The Comparison Group evaluation “provides an estimate of how the students at a given school would have performed if they had attended other schools throughout the City.”  For transfer schools, “the Comparison Group also takes into account the year that the student entered the school.”

With respect to Crotona’s attendance issues, respondent states that, in 2016-2017, Crotona’s attendance rate was 8 percent lower than the Comparison Group’s attendance.  Moreover, its average end-of-year attendance rate was just about 50 percent, and it had a chronic absenteeism rate of over 90 percent.  Additionally, on multiple site visits to Crotona, one DOE official observed attendance rates of between 23 percent and 35 percent.

With respect to concerns regarding Crotona’s performance, respondent asserts that, in 2016-2017, Crotona’s graduation rate was 45.1 percent (5 percent lower than the Comparison Group), which was down from 63 percent in 2014-2015 and 50.8 percent in 2015-2016.  For those students who graduated in 2016-2017, respondent asserts that only 1 percent of them were actually considered “college-ready” according to the Transfer School College Readiness Index.  However, as in Appeal of Williams, et al. (58 Ed Dept Rep, Decision No. 17,546), the affidavit of the Superintendent, Crotona Academy’s 2016-2017 School Quality Snapshot, and the school’s 2017 School Performance Dashboard each indicate that the College and Career Readiness Index for Crotona was 3 percent in 2016-2017, compared to 10 percent for the Comparison Group, rather than 1 percent.  In 2015-2016, its College and Career Readiness Index was 0 percent and the Comparison Group’s was 9 percent.  In 2014-2015, Crotona Academy had an Index of 1 percent, as compared to 21 percent for the Comparison Group.  As indicated in the EIS, Crotona’s six-month post-secondary enrollment was 23 percent.

As further explained by the Superintendent in his affidavit, transfer schools are, in part, evaluated using the Framework for Great Schools (“Framework”), which has six “inter-connected elements” that drive school improvement: Rigorous Instruction; Collaborative Teachers; Supportive Environment; Effective School Leadership; Strong Family-Community Ties; and Trust.  In five of these six Framework elements, Crotona Academy did not meet expectations in the 2016-2017 school year.  Notably, Crotona’s score for the one element for which it was meeting expectations — Collaborative Teachers — decreased from the 2015-2016 school year.  In fact, Crotona’s scores in all six Framework elements had decreased from the 2015-2016 school year to the 2016-2017 school year.

In this appeal, petitioner has not submitted any evidence to rebut respondent’s contention that the decision to close Crotona Academy was rationally based on Crotona’s attendance, absenteeism, and performance issues.  Therefore, petitioner has not met her burden of proving that respondent’s determination, on the merits, was arbitrary and capricious or contrary to sound educational policy.

Petitioner further contends that respondent’s decision to close Crotona Academy was procedurally flawed in two respects.

First, petitioner alleges that DOE failed to engage in adequate consultation with the community — including a failure to properly notify the community of Crotona’s risk of closure — before DOE made its determination.  More specifically, petitioner alleges that the provisions of 20 USC §6318(b) and Title I, §§1111(d), 1112(d), and 1118 of the Every Student Succeeds Act (“ESSA”) (20 USC §§6311[d]; 6312[d]; and 6318) require meaningful parental engagement when considering closure of a school.  However, an appeal under Education Law §310 is not the appropriate forum in which to obtain relief under ESSA (see 20 USC §7844[a][3][C]; Appeal of Wills, et al., 53 Ed Dept Rep, Decision No. 16,576; Appeal of Martinez, 44 id. 297, Decision No. 15,178).  In any event, petitioner makes a conclusory allegation that respondent violated the cited provisions by failing to consult with parents or their Title I representative prior to the initial notices of closure in February 2018.  Petitioner has not explained how respondent’s action in closing Crotona — which was not conducted under the State Accountability Plan but was conducted pursuant to the notice and hearing procedures set forth in Education Law §2590-h(2-a), including required notice to parents — violated the cited provisions of federal law.

There is no requirement in Education Law §2590-h(2-a) that DOE conduct such consultation and/or solicit alternative proposals prior to issuing an EIS.  Rather, under the statutory scheme, the EIS process itself is intended to provide an opportunity for public information and comment (see Appeal of Espinet, et al., 50 Ed Dept Rep., Decision No. 16,212).  DOE considered the public’s input prior to recommending Crotona Academy’s closure and prior to the PEP vote approving the proposal.  More specifically, on March 2, 2018, DOE issued a Notice of the proposed closure of Crotona Academy (“Notice”), as well as the EIS.  The Notice informed the public that a joint public hearing would be held on April 12, 2018; it also provided the name and contact information of a DOE representative to whom the public could make written and verbal comments regarding the proposed action.  In addition to this, letters were “backpacked” home with Crotona students on or about February 9, 2018, notifying parents and students of the proposed closure.  A community meeting was also held on March 1, 2018, to discuss the matter.

Subsequent to the commencement of the public comment process regarding the proposed closure, DOE set up a dedicated phone line and email address to continue to accept comments.  The joint public hearing and the PEP meeting were open to the public, and both allowed for an opportunity to comment further.  Prior to the PEP meeting, DOE prepared the aforementioned Analysis, which outlined all of the comments received by DOE.  The Analysis “received and responded to all the issues raised and the significant alternatives proposed.”  Moreover, the Analysis indicates that multiple members of the SLT attended the joint public hearing and made comments regarding the proposal.

Based on the foregoing, respondent correctly asserts that the proposal and the determination to close Crotona Academy met all requirements set forth in Education Law §2590-h(2-a), as well as Chancellor’s regulation A-190 (“A-190”), which outlines the procedures for public review and comment on proposals for school closures.  Accordingly, petitioner has not met her burden of establishing that DOE failed to provide parents with notice and an opportunity to comment on the proposed closure, in accordance with Education Law §2590-h(2-a), prior to making the decision to close Crotona Academy.

Second, petitioner alleges that the Superintendent violated A-655 regarding consultation with the SLT with respect to Crotona’s closure.  A-655 implements the requirements of Commissioner’s regulation §100.11 and sets forth DOE’s plan for school-based planning and shared decision-making.  A-655 requires the establishment of SLTs in each New York City public school.  An SLT consists of the school principal, the United Federation of Teachers Chapter Leader, the Parent Association/Parent-Teacher Association president or co-president, or their designees, and up to 14 other parents, staff, students, and community members.  SLTs are responsible for developing an annual school Comprehensive Educational Plan that is aligned with the school-based budget for the ensuing school year (A-655[II][A][1]).

Petitioner states that, as “the official body setting forth the Comprehensive Educational Plan, the SLT should have been consulted well in advance about plans to close the school so the school could develop a plan of improvement.”  A-655(X)(B) states, in pertinent part, that the Superintendent “will consult with the SLT regarding any school restructuring plans for the school.”  With respect to all proposals to close a school, A-655 states that “the SLT shall participate in the joint public hearing held at the school.”  It then cross-references Chancellor’s regulation A-190.

As discussed above, DOE satisfied the procedural requirements of Education Law §2950-h(2-a) and A-190.  Additionally, pursuant to the Analysis issued by DOE, a joint public hearing was held on April 12, 2018, at which SLT members were present.  DOE also properly notified the SLT and the community of the joint public hearing via, at minimum, the Notice, EIS, and the letter dated February 9, 2018.  Accordingly, DOE did, in fact, consult with the SLT, and provided multiple opportunities for the SLT to participate in public hearings regarding the proposed closure of Crotona Academy.  As such, petitioner has failed to meet her burden of proving a failure to consult with the SLT.

Finally, petitioner asserts that an alleged, pending complaint to the Equal Employment Opportunity Commission (“EEOC Complaint”) filed by Crotona’s principal against the Superintendent required the Superintendent to recuse himself from overseeing the proposed closure of Crotona Academy.  Notably, petitioner does not appear to assert that the Superintendent’s failure to recuse himself has thereby rendered the closure of Crotona invalid.

Nonetheless, in reviewing petitioner’s allegation, it should be noted that the EEOC Complaint was filed after the proposal to close Crotona was issued, and there is no evidence in this record that there has been any finding or resolution regarding the EEOC Complaint.  Moreover, petitioner has failed to provide a copy of the EEOC Complaint or any details concerning the complaint that would establish that the EEOC Complaint is in any way relevant to respondent’s determination to close Crotona Academy.

Petitioner’s implication that the EEOC Complaint, if founded, would somehow invalidate respondent’s decision to close Crotona Academy is undercut by the fact that multiple persons were involved with review of Crotona’s performance, the recommendation for its closure, and the final vote by the PEP.  As outlined within respondent’s answer and the Superintendent’s affidavit, the Superintendent was one of numerous individuals involved in the review of Crotona’s performance and the determination to recommend its closure. I take administrative notice that, in Appeal of Williams, et al. (58 Ed Dept Rep, Decision No. 17,546), I determined that the Chancellor made the final decision to propose the closing of Crotona Academy to the PEP and that the final determination was made by the PEP.  As such, even if it were proven that the Superintendent acted improperly in making a recommendation with respect to the closing of Crotona — which cannot be established based upon the record before me — petitioner has not established that this would invalidate the closure of Crotona by the Chancellor and the PEP.

Accordingly, on the record before me, while petitioner disagrees with the outcome, I cannot conclude that petitioner has carried her burden of establishing that respondent’s determination to close Crotona Academy should be set aside on procedural grounds.

I have considered petitioner’s remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

END OF FILE