Appeal of RUBEN WILLS, as City Council Member of District 28, individually and as a taxpayer residing in Queens, etal.,* from action of the New York City Department of Education regarding school utilization.

Decision No. 16,576

(November 25, 2013)

Advocates for Justice, Chartered Attorneys and Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz and Laura D. Barbieri, Esqs., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Lesley Berson Mbaye, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge a determination of the New York City Department of Education(“DOE”) relating to the proposed opening and co-location of a new district middle school, 27Q297, with existing district schools J.H.S. 226 Virgil I. Grissom (27Q226)(“J.H.S. 226”) and P.S. Q233 (75Q233@Q226) (“P.S. Q233”), a public “District 75 School,” in building Q226 (“Q226” or“ the building”) beginning in the 2013-2014 school year. The appeal must be dismissed.

Petitioners are either parents who allege that their children attend school at J.H.S. 226 or taxpayers residing in Queens.

The building is located in Community School District

27. J.H.S. 226 is a zoned middle school serving grades six through eight in the building. Also located in the building is P.S. Q233 which serves students with disabilities in grades six through eight. In addition, Beacon, a community based organization, is located in the building.

On January 23, 2013, DOE issued an Educational Impact Statement (“EIS”) pursuant to Education Law §2590-h(2-a)proposing the co-location of 27Q297 in the building. According to the proposal, 27Q297 would open and begin enrolling general and special education sixth grade students in the 2013–2014 school year and would add one grade each year until it begins to serve grade eight in the2015-2016 school year.

On February 14, 2013, DOE issued an amended EIS which provided updated information regarding the admissions method for 27Q297. On March 6, 2013, a joint public hearing was held. Approximately 52 people attended the hearing, including members of J.H.S. 226’s school

leadership team (“SLT”), a member of P.S. Q233’s SLT and a member of the Community Education Council (“CEC”).

On March 19, 2013, DOE prepared 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 March 20, 2013, the Panel on Educational Policy (“PEP”) met and voted to approve the proposal. This appeal ensued.

Petitioners challenge DOE’s determination to open and co-locate 27Q297 in the building. They assert that the joint public hearing and PEP meeting were “shams” and that DOE “had already decided to go forward with the plans proposed in the EIS.” They also assert that DOE failed to meet with the SLT. In addition, petitioners contend that the building is not underutilized and that the opening of another school in the building “requires the use of ten

(10) classroom spaces that are currently being used by

J.H.S. 226.” They allege that the co-location will result in reduced classroom space and increased class size, and that DOE “had the choice of allowing J.H.S. 226 to reduce the large class sizes.” Petitioners also claim that additional funds will be required to pay for new leadership at 27Q297 and that 27Q297 students will be “getting increased services and additional funds that could have gone to J.H.S. 226.” Petitioners also allege that the impact on special needs students was not sufficiently analyzed. Additionally, petitioners claim that there have been many improvements at J.H.S. 226, including a new library, new technologies, a new telecommunications studio and two new dance studios. They note that J.H.S. 226 has been removed from the persistently dangerous schools list, that the Classroom Without Walls program was launched from

J.H.S. 226 and that J.H.S. 226 participates in the Educational Feeder program. Petitioners maintain that DOE “has set out to destroy these improvements by co-locating yet another school inside J.H.S. 226.” In addition, petitioners allege there is a disconnect between DOE and the J.H.S. 226 community. Specifically, they allege that DOE did not produce surveys that suggested or supported parents’ requests for more school choices, a list of applicants for the proposed school and the number of parents expressing interest in a new school. Petitioners also assert that when DOE completed the space survey, it did not consult the J.H.S. 226 custodian. Petitioners request that DOE be restrained from co-locating 27Q297 in the building.

 

Respondent asserts that its determination is a rational act of professional educational discretion

consistent with State law and regulation, and is neither arbitrary nor capricious.

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 NY2d333; 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 “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 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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48id. 348, Decision No. 15,882).

Petitioners contend that the joint public hearing and PEP meeting were “shams” and that DOE had already decided to proceed with the proposed co-location. However, other than conclusory assertions, petitioners submit no affidavits or other evidence to support this claim.

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 their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). In addition, Education Law§2590-g(8)(a) provides that, prior to the approval of any proposed school closing or significant change in school utilization, the PEP must undertake a public review process “to afford the public an opportunity to submit comments on the proposed item.”

The record indicates that on January 23, 2013, DOE filed and posted an EIS concerning the proposed co-location and that it issued an amended EIS on February 14, 2013.DOE states in its verified answer that when the EIS was issued, it was made available to staff, faculty and parents at J.H.S. 226, on DOE’s website and in each school’s respective main office. The EIS indicates that the proposal was intended to provide an additional option for middle school students.

The record also indicates that on March 6, 2013, DOE held a joint public hearing regarding the proposed co­location which was attended by 52 people, 15 of whom made comments. The Analysis summarizes the comments received at the joint public hearing and the oral and written comments submitted directly to DOE. In addition, at its March 20,2013 meeting, the PEP heard additional comments from th epublic prior to voting on the proposal. Based on this record, I find that DOE provided sufficient information to inform public comment (see Appeal of Battis, et al., 50 EdDept Rep, Decision No. 16,115) and afforded the public an opportunity to submit comments on the proposed item. Further, while petitioners may disagree with DOE’s decision, on the record before me, I cannot conclude that they have carried their burden of establishing that respondent acted arbitrarily or capriciously.

Petitioners also contend that DOE did not meet with the SLT. However, petitioners fail to establish that respondent violated any specific provision of law or regulation in this regard (see Appeal of Espinet, et al.,50 Ed Dept Rep, Decision No. 16,212).1 In addition, contrary to petitioners’ assertion, DOE states in its verified answer that it met with J.H.S. 226’s principal, who is a member of the SLT, to discuss the proposed opening and co-location of 27Q297. I note that the Analysis indicates that several members of J.H.S. 226’s SLT attended the joint public hearing, all of whom made comments opposing the proposal. The Analysis further indicates that one member of the SLT from P.S. Q233 also attended the joint public hearing and made comments opposing the proposal. Accordingly, petitioners have not carried their burden of proof with respect to this claim.

In addition, petitioners assert that the building is not underutilized. Petitioners submit no evidence to support their claim. The EIS indicates that during the2012-2013 school year, the building had a utilization rate

1 To the extent that petitioners claim that respondent failed to comply with the No Child Left Behind Act, an appeal to the Commissioner pursuant to Education Law §310 is not an appropriate forum in which to obtain relief under that statute (see 20 USC §7844[a][3][C]; Appeal ofMartinez, 44 Ed Dept Rep 297, Decision No. 15,178).

of 70 percent.2 The EIS further indicates that the building has adequate capacity to accommodate 27Q297 at full scale alongside J.H.S. 226 and P.S. Q233 and that when 27Q297completes its phase-in and reaches full scale in the 2015­2016 school year, the building’s estimated utilization rate would be 85 to 88 percent. Moreover, the record indicates that, in the 2015-2016 school year when 27Q297 reaches full scale, the building will have an excess of approximately 25full-size rooms. I therefore find that petitioners have failed to carry their burden with respect to this claim.

Petitioners also assert that 27Q297 requires the use of 10 classroom spaces that are currently being used by

J.H.S. 226 which they allege will result in less classroom space and increased class size at J.H.S. 226. Petitioners’ claim is not supported by the record. The EIS and the Analysis explain that the allocation of classroom, resource and administrative space is guided by the Citywide Instructional Footprint (“Footprint”) and is applied to all schools in the building. According to the EIS, the Footprint sets forth the baseline number of rooms that should be allocated to a school based on the grade levels served by the school and the number of classes per grade. The EIS also indicates that the Footprint is applied to the current number of classes and class size a school has programmed and is confirmed by a walk-through of the building by the Borough Director of Space Planning and the school’s principal. DOE states in its answer that a building walk-through was conducted by the Queens Director of Space Planning in August 2011 and updated in January2013. The EIS and the Analysis state that both during and after the phase-in of 27Q297, each school will receive its baseline Footprint allocation and there will also be approximately 25 full-size rooms of excess space in the building.

Moreover, petitioners submit no evidence to support their claim that the proposed co-location will reduce the number of classrooms available to J.H.S. 226 and increase class size and that DOE could have allowed J.H.S. 226 to reduce its large class sizes. First, as explained above, the proposed co-location would not result in a reduction in the number of classrooms allocated to J.H.S. 226. The record indicates that there will be approximately 25 full-size rooms of excess space in the building after all schools in the building are fully phased in. In addition, DOE states in its answer that there is a standard guideline

2 The EIS explains that building utilization rates are based upon target capacity data from the 2011-2012 Enrollment, Capacity, Utilization Report (Blue Book) and enrollment data from the 2012-2013 Unaudited Register (as of October 26, 2012) or charter headcounts as of October1, 2012.

for target class size for each grade level and that class size is primarily determined by how principals choose to program students at their school within their budget. The answer further states that every school principal has discretion on how to use the funds allocated and makes choices about how to prioritize resources. I therefore find that petitioners have failed to meet their burden on these claims.

Petitioners have also failed to meet their burden on their claim challenging funding and resource allocation. The Analysis indicates that in New York City, schools are funded through a per pupil allocation which “follows” the students and is weighted based on students’ grade level and need, including proficiency level, special education and ELL and Title I status. In addition, DOE states in its answer that J.H.S. 226 would receive the same amount of funding regardless of whether a new school was co-located in the building. Petitioners provide no evidence to the contrary.

Petitioners also claim that programs for special needs students will likely be affected. Initially, I note that no petitioner alleges that he or she is the parent of a student with a disability, and consequently, I find that petitioners lack standing to the extent they attempt to raise claims on behalf of such students (Appeal of McCall, et al., 51 Ed Dept Rep, Decision No. 16,257). In any event, contrary to petitioners’ speculative claim, the EIS indicates that existing special education classes at J.H.S.226 will continue to be provided and students with disabilities will continue to receive mandated services in accordance with their Individualized Education Programs. The EIS also indicates that current and future English language learners attending J.H.S. 226 will receive services in accordance with DOE policy.

With respect to their claims that DOE has set out to destroy improvements by co-locating another school with

J.H.S. 226, that DOE did not produce information demonstrating parents’ requests for more school choices, and that DOE did not consult the J.H.S. 226 custodian regarding the availability of space in the building,petitioners fail to establish that respondent violated any specific  provision of law or regulation or that respondent acted arbitrarily or capriciously. I note that similar issues were raised through the public comment process and addressed by DOE in its Analysis, which is over 12 pages long.

Although petitioners disagree with the outcome, I cannot conclude from the record before me that they have carried their burden of establishing that DOE’s decision was arbitrary, capricious or lacked a rational basis.

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

THE APPEAL IS DISMISSED. END OF FILE

* The following individuals are also listed as petitioners: BASHTI ALI, individually and as a parent and natural guardian of B.A., infant; DONNA BALKARAN, individually and as a parent and naturally guardian of T.B., infant; ANNA BERRIOS, individually and as a taxpayer of Queens; THOMAS BERRIOS, individually and as a tax payer of Queens; PAUL BONITTO, individually and as a parent and natural guardian of C.B. and M.B., infants; INDAL BHARAT, individually and as a parent and natural guardian of A.B., infant; RAZA BHATTI, individually and as a parent and natural guardian of S.B., infant; TANYA BULLEN, individually and as a parent and natural guardian of J.T., infant; ALINE BULLOCK, individually and as a parent and natural guardian of K.B., infant; HYLSTON AND DARNETT BURTON, individually and as parents and natural guardians of D.B., infant; BEATRICE CAMPBELL, individually and as a parent and natural guardian of I.C., infant; JOYCE CARABALLO, individually and as a taxpayer residing in Queens; MONALISA CHANDLER, individually and as a parent and natural guardian of Z.C., infant; BARBARA DELBRICE, individually and as a taxpayer residing in Queens; AEYDIFORE, individually and as a taxpayer residing in Queens; GEORGE DILIETO, individually and as a taxpayer residing in Queens; NADRA DIXON, individually and as a parent and natural guardian of H.D., infant; FABIOLA FABIEN, individually and as a parent and natural guardian of K.F., infant; JENNIFER GELLINEAU, individually and as a taxpayer residing in Queens, JOYCE GEORGE, individually and as a taxpayer residing in Queens; CHRISTINA GRANT, individually and as a parent and natural guardian of K.G., infant; ANNMARIE GRIFFIN, individually and as a parent and natural guardian of A.G., infant; JOAN HANDY, individually and as a parent and natural guardian of L.H., infant; JOHNESTA HARPER, individually and as a taxpayer residing in Queens; ELIZABETH HOGAN, individually and as a parent and natural guardian of Z.H., infant; RICHARD HOGAN, individually and as a parent and natural guardian of R.H., infant; SYLVIAJOHNSON, individually and as a parent and natural guardian of E.R. infant; SHERIZA KHAN, individually and as a parent and natural guardian of Z.W., infant; JASSA KEITA, individually and as a parent and natural guardian of K.K., infant; DANIELA LACHTMAN, individually and as a parent and natural guardian of K.L., infant; BERNICE LOHEN, individually and as a taxpayer residing in Queens; TATIANA

LOUIS, individually and as a taxpayer residing in Queens; IKISHA MAITLALL, individually and as a parent and natural guardian of J.M., infant; MUARICE MARCUS, individually and as a parent and natural guardian of T.M., infant; MARIETAROMAN, individually and as a taxpayer residing in Queens; UGISTER MULAHOO, individually and as a parent and natural guardian of K.M., infant; ANN MARCUS, individually and as a parent and natural guardian of M.M., infant; YULISA NUNEZ, individually and as a parent and natural guardian of W.N., infant; MARIBEL PEREZ, individually and as a parent and natural guardian of A.F., infant; SUNNIL PERSAUD, individually and as a parent and natural guardian of S.P., infant; MAHENDRA RAMDAZ, individually and as a parent and natural guardian of A.R., infant; CARLOS RAMOS, individually and as a parent and natural guardian of J.N., infant; YVONNE REID, individually and as a taxpayer residing in Queens; LUZ RIVERA, individually and as a parent and natural guardian of J.R., infant; CARMEN RODRIGUEZ, individually and as a taxpayer residing in Queens; JOSE RODRIGUEZ, individually and as a taxpayer residing in Queens; TULLADA SARTU, individually and as a parent and natural guardian of P.S., infant; ALEATHA SHAW, individually and as a parent and natural guardian of J.A., infant; BHAGMATIE SINGH, individually and as a parent and natural guardian of A.S., infant; NARPAUL SINGH, individually and as a parent and natural guardian of A.S., infant; YVETTE SLEDGE, individually and as a taxpayer residing in Queens; SHARON SPENCER-SMITH, individually and as a parent and natural guardian of L.P., infant; JAMESSTAGGS, individually and as a taxpayer residing in Queens, ARMANDA STUGGS, individually and as a taxpayer residing in Queens, RENEE STUCKEY, individually and as a taxpayer residing in Queens; INDIRA SULDNANADAN, individually and as a parent and natural guardian of S.S., infant; DYMSTATAYLOR, individually and as a taxpayer residing in Queens; RICHARD AND SHERYL THOMAS, individually, collectively and as parents and natural guardians of E.N., infant; MONICAWHYTE, individually and as a taxpayer residing in Queens; ANGELIQUE WHITE, individually and as a parent and natural guardian of J.W., infant; GWENDOLYN WILLIAMS, individually and as a taxpayer residing in Queens; ERSKINE WILLIAMS, individually and as a parent and natural guardian of S.W., infant; DEIDRE WOOD, individually and as a parent and natural guardian of J.B., infant; SHARON YAMRAJ, individually and as a parent and natural guardian of A.Y.1.and A.Y.2., infants.3

3 I note that in paragraph 4 of the petition, Leroy Comrie, City Council Member for District 27, Vivian Cook, New York State Assemblywoman for Assembly District 32, and Michelle Titus, New York State Assemblywoman 8

for Assembly District 31 are listed as petitioners. However, they are not named as petitioners in the caption.