Appeal of HOPE RODRIGUEZ, on behalf of her daughter KAYLA JOHNSON, MELANIE ORTIZ, on behalf of her children KIMBERLY, EMILY and RYAN, and JAMAIRA PARAMO on behalf of her children DANIEL and ISMAEL, from action of the New York City Department of Education regarding school utilization.

Decision No. 16,602

(March 24, 2014)

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, Omar Tuffaha and Chlarens Orsland, Esqs., of counsel

KING, JR., Commissioner.--Petitioners challenge the March 11, 2013 vote and resolution of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“DOE” or “respondent”) to phase-out and close P.S. 385 Performance School (07X385) (“Performance School”). The appeal must be dismissed.

Petitioners are parents of students who attended Performance School during the 2012-2013 school year. During that school year, Performance School served students in grades kindergarten through five and offered a pre-kindergarten program. Performance School is co-located in building X156 (“X156” or “the building”) with Bronx Global Learning Institute for Girls Charter School (“BGLIG”), an existing public charter school serving female students in grades kindergarten through five.

On January 22, 2013, DOE issued an Educational Impact Statement1,2(“EIS”) proposing to phase-out and close Performance School “based on its poor performance and the DOE’s assessment that the school lacks the capacity to improve quickly to better support student needs.” According to the proposal, Performance School would not admit new kindergarten students and would not offer grades one and two or its pre-kindergarten program after the 2012- 2013 school year. Beginning in the 2014-2015 school year, Performance School would not serve third grade and would phase-out one grade each subsequent year until it completes its phase-out and closes in June 2016.

1 In a separate EIS posted on January 22, 2013, not the subject of this appeal, DOE proposed the opening and co-location of a new public elementary school (07X359) and a new site for an existing public District 75 program in X156. The EIS recites that District 75 provides citywide educational, vocational and behavior support programs for students who are on the autism spectrum, have significant cognitive delays or are severely emotionally challenged, sensory impaired and/or multiply disabled.

2 In another EIS posted on January 22, 2013, not the subject of this appeal, DOE proposed the expansion of BGLIG from serving grades kindergarten through five to serving grades kindergarten through eight in X156.

On February 21, 2013, DOE held a joint public hearing regarding the proposal. Approximately 110 people attended the hearing, including members of Performance School’s School Leadership Team and a representative of the Community Education Council.

On March 8, 2013, 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 March 10, 2013, DOE published an Amended Analysis to include and provide responses to comments it received subsequent to the March 8, 2013 Analysis. According to DOE, the Amended Analysis also clarified certain other responses. On March 11, 2013, the PEP met and voted to approve the phase-out of Performance School. This appeal ensued.

In this appeal, petitioners challenge only the DOE’s determination to phase-out and close Performance School and their sole request for relief is annulment of the PEP vote phasing-out the school. Respondent contends that the appeal is untimely, that it has complied with the Education Law in all respects, and that its determination to phase-out Performance School is within its discretion and is neither arbitrary nor capricious.

The appeal must be dismissed as untimely. An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879). Here, petitioners challenge the PEP’s March 11, 2013 vote to phase-out and close Performance School. However, petitioners did not personally serve the petition until April 22, 2013, more than 30 days after the determination they are challenging, and they have not demonstrated good cause for the delay. Although petitioners had previously attempted to commence an appeal, their petition was returned by my Office of Counsel on April 16, 2013 because it did not comply with the Commissioner’s regulations in several respects, including lack of an affidavit of personal service on respondent. A prior ineffective attempt to commence an appeal is not a valid excuse for petitioners’ failure to commence this proceeding in a timely fashion (see e.g. Appeal of Ekpecham, 41 Ed Dept Rep 168, Decision No. 14,651). The petition is therefore untimely and must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. 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 their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). As the Commissioner concluded 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.

An EIS is required to include:

i. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;

ii. the impacts of the proposed school closing or significant change in school utilization to any affected students;

iii. an outline of any proposed or potential use of the school building for other educational programs or administrative services;

iv. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;

v. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;

 

vi. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and

vii. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status. Education Law §2590-h(2-a)(b).

 

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., 48 id. 348, Decision No. 15,882).

Petitioners claim that the EIS is flawed in a number of respects. First, petitioners generally assert that “[b]y failing to use any language other than general assurances that PS 385 will be able to carry out its programs,” the EIS did not meet the requirements of Education Law §2590-h(2-a)(b)(i), (ii) and (vii). Petitioners also assert that the EIS does not specify the reasons Performance School is being phased out; is misleading when it refers to the 2011-2012 school year as “this year;” references data from the term of a former principal; fails to specify why Performance School was chosen for phase-out over other schools; fails to specify how the phase-out of Performance School will help improve the educational quality of the new school; presents data in a way that can be easily misunderstood thereby impeding parents’ ability to understand and provide meaningful feedback; includes only certain statistics and omits relevant statistics such as the “peer index,” which petitioners claim shows that Performance School does not rank lowest by all measures; and created confusion regarding whether a pre-kindergarten program will be offered.

On this record, petitioners have failed to carry their burden of proof with respect to these claims. While the EIS is required to include information regarding current

 

and projected pupil enrollment of the affected school, the ramifications of such school closing upon the community, the impacts of the proposed school closing to any affected students, and information regarding the affected school’s academic performance (see Education Law §2590-h[2-a][b][i], [ii] and [vii]), DOE is afforded a considerable measure of discretion in determining how best to do this in light of the statute’s purpose (i.e., to inform public comment) (see e.g., Mulgrew v. Bd. of Educ. of the City School District of the City of New York, 75 AD3d 412; Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). Here, the EIS explains how the students in each grade will be served over the course of the phase-out. For example, the EIS states that current second, third, and fourth grade students will continue to be enrolled at Performance School and that Performance School will continue to offer all necessary classes to support current students as they work to meet promotional requirements. In addition, the EIS includes a chart reflecting the current and projected pupil enrollment of Performance School during the phase-out period. It also discusses the ramifications of the phase-out upon the community. It further includes Performance School’s performance data and indicates that Performance School was designated as a “Priority School.”

Petitioners also assert that the EIS does not contain certain information such as the reason Performance School was chosen for phase-out over other schools and how the phase-out of Performance School will help improve the educational quality of the new school. However, I note that the EIS does indeed include the information petitioners claim it lacks. For example, the EIS includes a detailed explanation of DOE’s process for identifying schools for phase-out and summarizes Performance School’s academic performance during the 2009-2010, 2010-2011 and 2011-2012 school years. The EIS states that Performance School has struggled academically and “lacks the capacity to improve quickly to better support student needs.” The EIS further explains that the school was designated as a Priority School for accountability purposes in 2012-2013 and has been provided with individualized support plans and assistance, yet has still failed to improve.

As noted above, the appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (see Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). Contrary to petitioners’ assertions, I find that DOE has substantially complied with the

requirements of Education Law §2590-h(2-a). Consequently, I find that on this record, petitioners have failed to carry their burden of proof with respect to these claims and have not demonstrated that respondent abused its discretion in deciding to phase out Performance School.

To the extent petitioners assert claims on behalf of students with special needs or English language learner (“ELL”) students, I note that no petitioner alleges that he or she is the parent of a student with a disability or an ELL student, and therefore, they lack standing to raise such claims.

Finally, to the extent petitioners attempt to raise objections to a Building Usage Plan (“BUP”) attached to the petition as Exhibit B, such claims are not properly before me. Such BUP relates to two EISs issued on January 22, 2013. One EIS proposed the opening and co-location of a new elementary school and a new site of a District 75 program with Performance School and BGLIG (see footnote 1 above), and the other proposed the expansion of BGLIG (see footnote 2 above). In the instant appeal, however, petitioners challenge and seek relief only with respect to the PEP’s March 11, 2013 vote to phase-out and close Performance School, which was the subject of a separate EIS issued on January 22, 2013. While a BUP is required – and may properly be challenged in an appeal to the Commissioner – where a public school building has been selected for a proposed location or co-location of a charter school (Education Law §2853[a-3]), such is not the case here. Accordingly, I need not consider such claims.

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

THE APPEAL IS DISMISSED.

END OF FILE