Decision No. 12,594

(October 18, 1991)

SOBOL, Commissioner.--Petitioners are residents of the Half Hollow Hills Central School District whose children attended Sunquam Elementary School ("Sunquam") until June 1991. They appeal from respondent board's decision of March 18, 1991 to close Sunquam, effective June 30, 1991. Since petitioners are similarly situated and are contesting the same determination, I have consolidated the appeals for decision. Oral argument was heard on August 6, 1991. The appeals must be dismissed.

In December 1990, the amount of State aid allocated to respondent's district for the 1990-91 school year was reduced by approximately five (5) percent. As a result of its loss of approximately $946,000 and in anticipation of additional reductions in State aid for the 1991-92 school year, respondent board and the superintendent of schools consulted with the PTA Council Budget Committee in developing a plan to reduce costs. The six-tiered plan consisted of phased budget cuts, with each tier corresponding to a million dollars in lost State aid. The actual personnel, facility, and program cuts would depend upon the final State aid allotment. Closing an elementary school was placed at tier 6 to occur only if State aid were reduced by six million dollars. When it became apparent that a reduction of fourteen million dollars in State aid was possible, the superintendent advised the board at its February 25, 1991 meeting of the need to consider closing schools. To discuss its options in response to the budget crisis, respondent board held a series of budget workshop meetings in addition to its regularly scheduled meetings in February and March, 1991.

The subject of school closings was raised at three additional board meetings prior to the board's March 18, 1991 vote to close Sunquam and Burr's Lane Junior High School. In response to a question from the board president at the February 28, 1991 meeting, the superintendent reported that a savings of between $500,000 to $600,000 would be realized by closing any of the elementary schools. The superintendent presented the board with four charts explaining proposed 1991-92 budget reductions, including the six-tiered plan, at the March 4, 1991 budget workshop meeting. At the board's regularly scheduled meeting on March 11, 1991, the board president directed the superintendent to address immediately the possibility of closing schools. The superintendent distributed a chart entitled, "School Closing Projected 1991-92 Savings," detailing the net savings in three categories - personnel/benefits, supplies, and facilities/transportation - from closing each of the district's schools. This chart showed the projected net savings of closing Sunquam to be less than four other elementary schools. However, the chart also listed Sunquam as the only elementary school without a debt service. Burr's Lane Junior High School was listed as the only other school in the district without a debt service.

At the March 18, 1991 budget workshop meeting, the superintendent recommended closing both Sunquam and Burr's Lane Junior High School. After discussion, the board unanimously passed resolutions to close both schools effective June 30, 1991. The minutes reflect that the discussion of Sunquam included the projected net savings and debt service, as well as the need for capital improvements. Specifically, this included the need for roof repair at an estimated cost of $311,000, boiler repairs and replacement of a window wall. In response to a question by the board president, the assistant superintendent estimated that no more than five minutes would be added to the transportation time for Sunquam students reassigned to two nearby schools. The resolution to close Sunquam specified that it was "based upon information and reports forwarded over the years and the general condition and capital projects that have to be planned for the future …." In an affidavit, the superintendent states that, in addition to financial concerns, the board also considered that Sunquam is the district's oldest elementary physical plant and would, given various scenarios of alternative school closings in 1991-92, be the most under-utilized elementary school (395 projected enrollment) with the smallest total functional capacity (559 maximum enrollment).

On March 27, 1991, the superintendent wrote to the parents of pupils attending Sunquam to inform them of the board's decision. Subsequent to its March 18, 1991 vote, the decision to close Sunquam was discussed at board meetings on March 25, April 8, April 11, April 15, and April 22, 1991. Although a motion asking the board to reconsider its decision to close Sunquam was made by a board member at the April 22, 1991 meeting, the motion failed to obtain a second.

Petitioners Seligman and Rosenberg commenced these appeals on April 17 and April 18, 1991, respectively and requested a stay. On May 13, 1991, the request for a stay was denied. Petitioners contend that the board's action is invalid on three grounds: that it lacks a rational basis due to the board's failure to consider relevant factors; that the board failed to comply with its own guidelines and Education Law "402-a; and that the board violated the Open Meetings Law. Petitioner Seligman also claims that the board violated Education Law "1804 by not obtaining permission to close the school from its pre-existing school district. Petitioner Rosenberg raises an additional ground, alleging that the board violated the Equal Educational Opportunities Act of 1974.

Respondent defends its decision to close Sunquam as an appropriate measure in response to an economic emergency. Respondent contends that proper notice was given for its March 18, 1991 budget workshop meeting. Respondent also argues that the board considered relevant factors in reaching its decision and had no obligation to follow its own guidelines on school closings or the procedures set forth in Education Law "402-a. Further, respondent claims that the Commissioner lacks jurisdiction to enforce the Open Meetings Law and that the requirements of Education Law "1804 governing the sale or disposal of school property do not apply. Finally, with respect to the racial discrimination claim, respondent denies that the board's decision was motivated by an discriminatory intent and contends that the Commissioner lacks jurisdiction to enforce the Equal Educational Opportunities Act. Respondent claims that the board's sole motivation for closing Sunquam was economic and that petitioner's allegations regarding the school assignment and transportation of minority children in other parts of the district were unrelated to the board's decision.

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 (Matter of Older v. Bd. of Ed., 27 NY2d 333, 318 NYS2d 129 [1971]; Matter of DeVito, et al. v. Nyquist, et al., 56 AD2d 159, 391 NYS2d 747, aff'd 43 NY2d 681, 401 NYS2d 25 [1977]; Matter of Lifshey, 19 id. 105; Matter of Bosco, et al., 19 id. 557; Matter of Maur, 21 id. 164; Matter of Stamper, 24 id. 502). Petitioners, therefore, have the burden of demonstrating that respondent's actions were arbitrary, capricious, or contrary to sound educational policy (Appeal of Malang, 26 id. 134). I find that petitioners have failed to meet their burden of proof (Appeal of Orzechowski, 27 id. 448; Appeal of Randolph, 28 id. 122; Appeal of McNerney, 28 id. 250; Appeal of Voss, 31 id. 56).

Petitioners argue that respondent's decision lacks a rational basis because the board did not invite public discussion before reaching its decision and did not undertake sufficient study. Petitioners assert that the factors upon which the board based its decision should have been more fully discussed and that additional concerns should have been considered. For instance, petitioners admit that Sunquam is the district's oldest school, but dispute the extend of its deterioration as compared to other schools. Petitioners admit that Sunquam needs a new roof and may require boiler repairs, but point out that other elementary schools have older roofs and need the same repairs. Petitioners also dispute that the transportation time for Sunquam students to the two receiving schools would add only five minutes because traffic is often heavy along the designated route. Petitioners agree that Sunquam is the district's only school with no debt service, but argue that it also has the lowest market value of the elementary schools. Petitioners dispute the superintendent's analysis of data showing that Sunquam would be the most under-utilized elementary school in 1991-92 with the smallest functional capacity. Petitioners also contend that the board abused its discretion because it relied exclusively on the superintendent's analysis and neither convened a citizens advisory committee nor undertook its own studies in reaching its decision. Other factors which petitioners argue received inadequate attention by the board include: geographical balance. Sunquam is the only elementary school in the western half of the district, the only section in the district experiencing an increase in population and student enrollment and for which new housing developments are proposed over the next decade; safety. Sunquam pupils must travel on busy roads to reach the receiving schools; and social impact. The decision to close Sunquam was made shortly after the death of a pupil in a gymnasium accident and shows a lack of concern for the emotional needs of the other pupils who would associate losing their school with this tragedy.

A notice dated March 12, 1991 announced the time and place of respondent's March 18, 1991 budget workshop meeting and a printed agenda listed the only discussion item as "proposed budget 1991-92." The record also shows that the subject of school closings had been discussed at the board's four previous meetings in the context of proposed budget reductions. The record reflects that the board received comments from the PTA Council Budget Committee prior to its vote to close Sunquam and from the general public during the course of six subsequent meetings. The minutes of the board's March 25, 1991 meeting include public comments raising petitioners' complaints regarding geographical balance, safety, and social impact. In the context of this continuing public discussion, it cannot be said that respondent board was unaware of petitioners' concerns nor that the board did not consider these factors in deciding to close Sunquam. I further find that the specific factors considered by the board on the record prior to its March 18, 1991 vote provide an adequate rationale for its decision. Respondent has established that the closing of Sunquam will not result in overcrowding the district's other buildings because the present and projected student population is well within the capacity of the remaining facilities. Sunquam is the oldest of respondent's elementary schools and will require extensive repairs or replacements within the next few years. Respondent projects a cost saving to the district of $899,000 if Sunquam is closed. By closing both Sunquam and Burr's Lane Junior High School, the district projects a combined savings of $2,021,000. Respondent's superintendent of schools submitted an affidavit alleging that the actions taken by respondent would serve to minimize program reductions across district schools while accommodating the needs of all students, reflecting an educationally sound and physically feasible plan.

The record indicates that the immediate and projected reductions in operating funds justified respondent's expedited action to meet its budgetary obligations. Due to the time constraints imposed by the budget crisis, respondent elected to take action without convening a community advisory committee or following the procedures recommended by Education Law "402-a and its board guidelines. Education Law "402-a is a recently enacted statute that took effect September 30, 1990 and sets forth recommended procedures for school closings. Section 402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an "advisory committee on school building utilization to investigate the educational impact of such a closing" (Education Law "402-a[1]. In this case, the district did not establish such a committee due to severe time and budgetary constraints. Where the plain language of a statute is not mandatory, a reviewing authority may not find a mandatory intent (Forse v. Turner, 55 Misc 2d 248, 284 NYS2d 995 [1968]). The term "must" or "shall" will be interpreted in the sense of "may" where it is evident from the entire act that it was not intended to receive peremptory construction (Young Men's Christian Association v. Rochester Pure Waters District, 44 AD2d 219, 354 NYS2d 201, aff'd 37 NY2d 371, 372 NYS2d 633 [1975]). The word "shall" as used in subsections (2) and (3) of "402-a, must be read in the context of the entire statute which makes those paragraphs applicable only where a board of education chooses to establish an advisory committee. Although a board of education may appoint an advisory committee under "402-a, it is not required to do so. Moreover, even in instances where an advisory committee is established, the final responsibility for adopting a reorganization plan rests with the board (see, Appeal of Orzechowski, supra; Appeal of Malang, supra; Appeal of Randolph, supra).

Respondent established guidelines in December, 1978 that recommended, interalia, that "all school closings should be based on a detailed long-range plan" and that "all schools involved in a long range school closing plan should be named at the inception of the plan" (emphasis added). Respondent contends that the exigent need to reduce the school budget rendered such long-range planning impossible but that the board nonetheless complied with certain guidelines limiting the number of receiving schools; avoiding displacement of pupils in receiving schools; and considering the length of the pupils' bus rides to the receiving schools.

The record indicates that the guidelines were "accepted" by the board at its meeting on December 11, 1978 but respondent asserts that they were never adopted into policy. Whether or not the guidelines were board policy, their advisory nature did not require respondent to base its decision to close Sunquam on a "detailed long range plan" or to name the school "at the inception of the plan". Rather, the guidelines indicate a preference for that course of action as the ideal method to follow. Based on the record before me and in light of the fiscal crisis confronting the board of education, I find that respondent's decision to expedite the process despite its guidelines was justified.

With regard to petitioners' claim that respondent violated the Open Meetings Law, (see, Public Officers Law "100-111), it is well established that exclusive jurisdiction to enforce the provisions of the Open Meetings Law is vested in State Supreme Court (Matter of Gang, et al., 23 Ed Dept Rep 5; Matter of Baker, 22 id. 43; Matter of Concerned Parents, 20 id. 185; Matter of Salzmann, et al., 17 id. 407).

Petitioner Seligman's claim that respondent was required to obtain consent from the existing school district from which it was annexed in 1954 is without merit. Section 1804 of the Education Law governs the sale or disposition of property and is inapplicable to this appeal which involves only the board's decision to close a school. To the extent that "1804 makes reference to "1805, the latter provision, as amended in 1964, imposes no restriction on respondent's ability to discontinue an elementary school (see, Application of Cobbs, 29 Ed Dept Rep 179).

Petitioner Rosenberg contends that respondent's decision to close Sunquam violates the Equal Educational Opportunities Act, a federal statute that limits the use of busing to achieve desegregation. Petitioner argues that respondent decided to close Sunquam rather than any other elementary school in order to maintain the current racial balance in the district. Because Sunquam, with an enrollment of 449 in 1989-90, was the most racially segregated school in the district with only five black and three Hispanic children, closing any other school would have required reassignment of a larger number of minority students. Consequently, petitioner argues that the board should have decided to close one of the schools in the eastern part of the district where minority students are already being bused beyond their neighborhood schools, allegedly in violation of the Equal Educational Opportunities Act. Petitioner's claim under the Equal Educational Opportunities Act must be dismissed because, as respondent points out, the federal courts have exclusive jurisdiction over claims brought under that statute (20 USC "1706). Even if I had an independent basis for entertaining this claim, it would be dismissed because petitioner lacks standing in this proceeding to claim racial discrimination on behalf of minority children attending schools not directly affected by the board's decision to close Sunquam (Appeal of Children with Handicapping Conditions, 31 Ed Dept Rep 21; Appeal of Trowbridge, et al., 27 id. 252). In addition, even if the merits of the claim were reached, petitioner Rosenberg has failed to meet her burden of proof. The record on this claim is based on speculative, conclusory statements and lacks any persuasive evidence that respondent's decision to close Sunquam was motivated by or would result in racial discrimination.

Although respondent adopted its plan to close Sunquam under severe time constraints and without benefit of extensive community comment, I find that respondent board, nonetheless, had adequate information that constituted a sound rationale for its decision. In particular, the board considered the need to close schools at four meetings preceding its vote to close Sunquam on March 18, 1991 and provided for community participation and consideration of the relevant issues during the course of five subsequent meetings in March and April, 1991. Based upon the record before me, I do not find respondent's decision to close the Sunquam school arbitrary, capricious or lacking a rational basis.

THE APPEALS ARE DISMISSED.

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