Appeal of THERESA FREEMAN, MACK GASTON, WYNOLA GLENN and BARBARA OUTLAW from action of the Board of Education of the City School District of the City of New York and Rudolph Crew, as Chancellor, relating to their suspension as community school board members of the Community School District No. 5.

Decision No. 14,283

(December 23, 1999)

Armando Montano, Esq., attorney for petitioners

Michael D. Hess, Corporation Counsel, attorney for respondents, William P. Farley, Esq., of counsel

MILLS, Commissioner.--Petitioners appeal a determination of the Board of Education of the City School District of the City of New York ("respondent board") which upheld the determination of Chancellor Rudolph Crew suspending petitioners from their positions as community school board members of Community School District No. 5 ("CSD 5"). Petitioners request that I issue an order reversing the determination and order of respondent board and Chancellor, and that I direct respondents to reinstate petitioners to their positions as community school board members. Petitioners also ask that, upon the requested reinstatement, I direct the Chancellor to appoint a ninth member to the community board and provide technical assistance to help the board address deficiencies in the district's schools. The appeal must be dismissed.

Petitioners have served as members of Community School Board No.5 ("CSB 5") for several terms. In May 1996 each was reelected to a new term commencing on July 1, 1996. Throughout petitioners' tenure on CSB 5, the board attempted to address issues relating to poor student performance. One school in particular, P.S. 154, remained under registration review for six years pursuant to "100.2(p) of the Regulations of the Commissioner of Education. The Chancellor, upon his appointment in 1995, began meeting with CSB 5 to discuss P.S. 154's status and address the need to develop a redesign plan to improve educational performance of P.S. 154 students. After reviewing the redesign plan submitted by CSB 5, the Chancellor determined that the plan was inadequate. With CSB 5's consent, the Chancellor removed P.S. 154 from CSB 5's jurisdiction and placed it under his jurisdiction.

On June 3, 1996, the Chancellor again met with CSB 5 to address below average educational performance in the district's other schools which had resulted in the district ranking 30^th out of 32 districts within the New York City School District. By letter dated June 13, 1996, the Chancellor directed CSB 5 to submit a plan for educational reform.

On August 15, 1996 the Chancellor removed a member of CSB 5 for filing a false document. Following that removal, CSB 5 was required, pursuant to Education Law "2590-c(8)(b)*, to appoint a new member. On October 25, 1996 CSB 5 advised the Chancellor that it was unable to obtain a majority vote to appoint a new member and, therefore, failed to fill the vacant seat. CSB 5 requested that the Chancellor break the tie vote to appoint a ninth member to the board, pursuant to Education Law "2590-c(8)(c), but he did not exercise his authority to do so.

In October 1996, the Chancellor ordered a comprehensive audit of District 5, focusing on education and operations. The Chancellor appointed a review team to conduct the audit. The Chancellor's staff visited schools within District 5, reviewed the district's educational plan and met with District 5 staff, as well as staff of CSB 5.

On December 2, 1996, the Chancellor provided CSB 5 with a preliminary audit report enumerating deficiencies identified by the audit. The Chancellor directed CSB 5 to submit a detailed plan to improve teaching, the learning process and student outcomes in CSD 5. On December 9, 1996, CSB 5 provided a written response and further information regarding a district initiative, the "SMART" program, to improve educational outcomes. On December 10, 1996, the Chancellor, along with his staff, met with CSB 5, its superintendent and other district personnel to advise CSB 5 that its response to the audit report was inadequate and lacked a clear plan to address the identified deficiencies. The Chancellor asked CSB No. 5 to submit additional information by December 19, 1996.

On February 6, 1997 the Chancellor's review team issued a final audit report. The report concluded that CSB 5 and its superintendent lacked the capacity to establish a solid foundation for necessary educational change within CSD 5. By letter dated February 6, 1997, the Chancellor informed CSB 5 that it lacked "direction, a sense of unity, purpose and skills necessary for improving education in Community School District 5." The Chancellor met again with CSB 5 on February 12, 1997, to discuss the educational performance of the district's schools and CSB 5's lack of participation in developing a plan to improve the quality of education in the district. At the meeting, attended by seven members of CSB 5, the Chancellor discussed the lack of progress made by CSB 5 in establishing the leadership and educational dynamics for necessary reforms in CSD 5. The record indicates that the Chancellor and board members reached three conclusions:

By letter dated February 18, 1997, the Chancellor notified the members of CSB 5 that, effective March 10, 1997, he was suspending the board for the duration of its term.

On March 8, 1997, petitioners appealed the Chancellor's decision to respondent board pursuant to Education Law "2590-l. On May 7, 1997, respondent board issued a decision affirming the Chancellor's order of suspension, based upon a finding that the order was issued in conformity with applicable law and was not arbitrary, capricious or contrary to sound educational policy. In affirming the Chancellor's determination, respondent board found that the record contained sufficient evidence that CSB 5 was ineffective, unable to communicate and unable to promote the educational welfare of the district's children. Respondent board found that CSB 5 abrogated its duty to effectively manage the educational needs of the district (Education Law "2590-e[4]) and, therefore, the Chancellor's determination to suspend the board members was appropriate.

Petitioners initiated this appeal from respondent board's decision and, as part of the appeal, requested that I issue a stay of the suspension order. By letter dated June 11, 1997, I denied petitioners' stay request.

Petitioners challenge respondent board's affirmance of the Chancellor's determination to suspend CSB 5, asserting that the suspension was an abuse of discretion and in violation of law. Specifically, petitioners assert that the Chancellor's action is contrary to a legislative policy of decentralization, as evidenced by the enactment of Article 52-A of the Education Law. Petitioners also claim that, to the extent that CSB 5 was unable to perform its duties, such inability was solely attributable to the Chancellor's failure to appoint a ninth member to CSB 5, as required by Education Law "2590-c(8)(c), or to provide CSB 5 with technical assistance in fulfilling its responsibilities. Petitioners also assert that in view of the above, the Chancellor's conciliation efforts prior to suspension were pretextual and suspect.

Respondent's contend that the procedures followed by the Chancellor which culminated in the suspension of petitioners fully comply with the statutory requirements of the Education Law, that respondent board's determination is supported by the evidence before me and that the Chancellor's decision and subsequent affirmance by respondent board are in all respects proper.

Before addressing the merits of the appeal, I must first address a procedural issue. Education Law "2590-c(1) provides that community school board members be elected for a term of three years. The record indicates that each petitioner commenced a term of office on CSB 5 on July 1, 1996. On March 10, 1997, the Chancellor suspended petitioners for the remainder of their respective terms. Petitioners' request for a stay of the suspension order pending appeal was denied, and the record indicates petitioners' respective terms of office expired June 30, 1999. The Commissioner of Education will decide only matters in actual controversy and will not render a decision upon a state of facts which no longer exists or which subsequent events have laid to rest (Appeal of Wright, 38 Ed Dept Rep 756, Decision No. 14,134; Appeal of Goldin, 38 id. 322, Decision No. 14,044; Appeal of Roberts, 38 id. 68, Decision No. 13,984). Because petitioners' term of office and period of suspension is completed, the matter is moot.

The appeal must also be dismissed on the merits. It is well settled that the Commissioner of Education will not substitute his judgement for that of the Board of Education of the New York City School District when the board acts as an appeal board pursuant to Education Law "2590-l, absent a showing that the challenged decision is arbitrary or capricious or is in some manner contrary to law or the dictates of sound educational policy (Appeal of Coleman, 37 Ed Dept Rep 608, Decision No. 13,940; Appeal of Coca, 27 id. 279, Decision No. 11,947). In an appeal to the Commissioner, petitioner has the burden of establishing the facts upon which he seeks relief and demonstrating a clear legal right to the relief sought (8 NYCRR "275.10; Appeal of Ogbunugafor, 38 Ed Dept Rep 105, Decision No. 13,994). In this appeal, petitioners reiterate the same challenges to the Chancellor's suspension determination as they raised in their appeal before respondent board. They set forth no separate basis for challenging respondent board's decision. My review, therefore, must be conducted in conformance with the standard set forth above.

First, petitioners claim that the Chancellor failed to appoint a ninth member to break a deadlock on the board, as required by Education Law "2590-c(8)(c), and that such failure caused the ineffectiveness on which the Chancellor based his suspension order. The record indicates that CSB 5's inability to effectively manage the district's educational programs and operations predated any deadlock resulting from the August 1996 vacancy on CSB 5. As noted in respondent board's decision, CSB 5 failed to effectively address issues of low student performance, poor leadership, lack of accountability, ineffective communication and lack of involvement in educational initiatives for a significant period of time before the vacancy occurred. As indicated above, the Chancellor began meeting with CSB 5 in 1995 to discuss the district's continuing poor student performance. The district had consistently ranked among the lowest of the New York City school system's 32 community school districts. In April 1996, the Chancellor was forced to remove P.S. 154 from CSB 5's jurisdiction and placed it under his own, due to CSB 5's inability to address deficiencies in the school's leadership, operation and student performance. In June 1996, the Chancellor directed CSB 5 to devise a plan to address declining student performance in other schools within its district. This belies petitioners assertions that CSB 5's deficiencies were solely attributable to the vacancy that occurred in August 1996, and the Chancellor's decision not to cast a vote to fill it. Therefore, I find that the record supports respondent board's conclusion that CSB 5's ineffectiveness and derelict actions in fulfilling its statutory responsibilities to the district's children were unrelated to the Chancellor's failure to appoint a ninth member to fill the August 1996 vacancy.

Second, the record before me demonstrates that CSB 5 failed to "generally manage and operate the schools and other facilities under its jurisdiction", as was its statutory responsibility pursuant to Education Law "2590-e(4). Respondent board correctly noted in its decision, citing Appeal of Coca, supra, that the Chancellor is authorized to suspend or remove a school board when it is found to be "ineffective, unable to communicate and unable to promote the educational welfare of its children." The comprehensive audit of the district indicated that:

• District 5 students fell near the bottom of student performance for all of the 32 community school districts;
• 37.4% of the students performed "below" or "well below" the average of students in similar schools;
• In 1996, only 28.7% of CSD 5 students scored at or above grade level in reading;
• Compared to schools with similar populations, District 5 students performed significantly lower in mathematics and reading;
• CSB 5 was uninformed and uninvolved in providing leadership and guidance with respect to issues of professional development, lack of instructional materials and supplies and recruitment of certified teachers.

The record also indicates that CSB 5 demonstrated minimal levels of concern and response to the educational deficiencies identified in the district. CSB 5 failed to present effective plans to redesign low-performing schools, such as P.S. 154 and I.S. 43, within its jurisdiction. CSB 5 never reviewed the "SMART" program developed by its superintendent to address deficiencies identified in the audit report. Moreover, CSB 5 never provided a plan for improvement in response to the audit report, instead relying on the response of its superintendent, which some board members never read prior to its submission to the Chancellor.

Letters between the Chancellor and CSB 5 indicate the Chancellor's dissatisfaction with CSB 5's responses to the district's educational issues and failure to submit acceptable plans in response to his directives. Given the continuing problems evident in District 5, its consistent low ranking among all the community school districts, and CSB 5's continuing failure to effectively address those educational concerns, there is ample support for respondent board's affirmance of the Chancellor determination that CSB 5 abrogated its duty to effectively manage the educational needs of the district and, thus, was appropriately suspended by the Chancellor.

Petitioners' contention that the Chancellor's determination contravenes a legislative policy of decentralization in New York City's public schools is contradicted by the specific language of Education Law "2590-l. While enactment of article 52-A reflects the Legislature's intention to authorize local control and authority over school district matters, by enacting Education Law "2590-l, the Legislature also clearly authorized the Chancellor to take the action herein challenged (Appeal of Coca, supra, citing, Zoll v. Ankes, 414 Fed Supp 1024).

Finally, I find that the record does not support petitioners' contention that the Chancellor's conciliation efforts required by Education Law "2590-l prior to suspension were pretexual and suspect. The Chancellor met on several occasions with the members of CSB 5 to address the deficiencies in its management and operation of the district's schools which had resulted in poor student performance and the removal of P.S. 154 from its jurisdiction. The Chancellor also notified CSB 5 in writing of his dissatisfaction, setting forth his expectations and affording CSB 5 time to further develop plans and strategies. On February 12, 1997 the Chancellor met with CSB 5 specifically to address the results of the audit report. The Chancellor gave CSB 5 several opportunities to submit plans for educational reform and even provided CSB 5 an opportunity to address inadequacies in its proposed plans by permitting CSB 5 to submit additional information for the Chancellor's consideration. Therefore, prior to suspending CSB 5 for its failure to fulfill its statutory duty to effectively manage and operate the schools under its jurisdiction, the Chancellor engaged in numerous and sufficient conciliation efforts in compliance with Education Law "2590-l.

As noted above, I will not substitute my judgment for that of respondent board absent a showing by petitioners that its affirmance of the Chancellor's suspension order was arbitrary, capricious or contrary to sound educational policy (Appeal of Coca, supra; Matters of Board of Education of Community School Districts 25 and 26, 23 Ed Dept Rep 298, Decision No. 11,225). For the reasons set forth above, I find petitioners have failed to meet that burden, both with respect to respondent board's decision and the Chancellor's original suspension determination. Therefore, petitioners have failed to offer any basis for me to substitute my judgment for that of respondent board.

THE APPEAL IS DISMISSED.

*All references herein to the provisions of Article 52-A of the Education Law predate amendments to the article by Ch. 720 of the Laws of 1996, effective March 31, 1997.

END OF FILE.

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