Decision No. 16,817
Appeal of LORI JIAVA from action of the Board of Education of the Wappingers Central School District regarding redistricting and grade reconfiguration.
Decision No. 16,817
(August 21, 2015)
Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, attorneys for respondent, Frank G. Barile, Esq., of counsel
ELIA, Commissioner.--Petitioner challenges the decision of the Board of Education of the Wappingers Central School District (“respondent” or “board”) regarding redistricting and grade reconfiguration. The appeal must be dismissed.
On March 9, 2015, respondent adopted a resolution to accept and implement the recommendations of its superintendent of schools with regard to redistricting and grade reconfiguration for the 2015-2016 school year. Specifically, the recommendations include attendance zone redistricting and grade reconfigurations to: (1) develop a grades K-6 configuration in the district’s elementary schools; (2) decrease enrollment at Fishkill elementary school; (3) decrease enrollment at the middle school level by keeping grade 6 in elementary schools; (4) eliminate modular classrooms for classroom student/use; (5) decrease class sizes at primary grade levels and continue such decrease progressively at intermediate levels; and (6) maintain all high school students in their current schools.
Petitioner, a resident of respondent’s district, commenced this appeal “on behalf of the 1465 residents and 610 children who are aggrieved and have been affected by the redistricting plan set for the 2015-2016 school year.” Petitioner’s request for interim relief was denied on May 1, 2015.
Petitioner contends that respondent’s decision to accept the redistricting plan and the subsequent actions of the superintendent of schools to implement the plan are not in accordance with the Commissioner’s regulations. Petitioner alleges that the redistricting plan approved by respondent was incomplete because the plan failed to include defined impact areas and finalized revised attendance zone maps. Petitioner further alleges that the plan was subsequently changed numerous times by the superintendent without formal board approval or public input. Petitioner also alleges that the plan did not include the report or recommendation of the District Advisory Facilities Committee (DAFC) which was chartered by respondent to assist the board and district administration in establishing the redistricting plan, and that respondent never formally accepted the DAFC’s recommendations. Finally, petitioner alleges that respondent’s failure to develop a long-range plan for the use of its facilities has created overcrowding in schools located in the southern part of the district which has negatively affected students, including students with disabilities.
Respondent denies petitioner’s allegations and contends that the appeal must be dismissed for failure to state a claim and failure to clearly state the specific relief requested, and for untimeliness.
I will first address several procedural issues. Initially, I note that petitioner submits newspaper articles as exhibits to her petition. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Rockwell, 51 Ed Dept Rep, Decision No. 16,355; Appeal of Wachala, 49 id. 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324). Therefore, I have not considered such articles for the veracity of their content.
Although petitioner has submitted a “verified reply,” the reply responds only to materials initially submitted by respondent in opposition to petitioner’s stay request. Petitioner’s submission is not a pleading included in §275.3 of the Commissioner’s regulations (see Appeal of Gordinier, 52 Ed Dept Rep, Decision No. 16,433). Petitioner has not submitted a reply with respect to respondent’s answer. However, I note that petitioner appears pro se in this appeal. Where petitioner is not represented by counsel, a liberal interpretation of the rules governing appeals to the Commissioner pursuant to Education Law §310 is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729). In the absence of any demonstrable prejudice to respondent, I accept petitioner’s “verified reply” as in the nature of a reply to respondent’s answer for purposes of §§275.3 and 275.14 of the Commissioner’s Regulations, to the extent it is responsive to new material or affirmative defenses set forth in the answer. However, respondent contends that the reply contains material that should have been submitted with the petition. A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901). Therefore, while I have reviewed the reply, I have not considered those portions that buttress allegations in the petition or belatedly add assertions that should have been in the petition.
While respondent does not raise a lack of standing as an affirmative defense, I am not precluded from determining petitioner’s standing since standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 and must be established in the record, regardless of whether lack of standing is raised as an affirmative defense in respondent’s answer (Education Law §311; Appeal of Kackmeister, 39 Ed Dept Rep 466, Decision No. 14,285).
An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). There is nothing in the petition that establishes how the petitioner, or the particular district residents and children on whose behalf she seeks to bring this appeal, have suffered personal damage or injury as a result of respondent’s actions. Although not alleged, even if for the sake of argument I accept that petitioner and the specified residents are district taxpayers, their status as such is insufficient in and of itself to confer standing to challenge a school closing because petitioner does not allege that respondent’s actions have resulted in personal injury to petitioner and the district residents, such as a reduction in their property values, as a result of the approved plan (see e.g. Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773; cf. Appeal of LaGrange, 51 Ed Dept Rep, Decision No. 16,315); nor does petitioner allege an illegal expenditure of district funds or otherwise challenge the costs of the redistricting plan (see Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797). Although petitioner alleges that respondent’s failure to develop a long-range plan for use of its facilities has created overcrowding in schools located in the southern part of the district which has negatively affected students, and in particular students with disabilities, petitioner does not allege that she or the specified district residents are the parents of students or students with disabilities attending the affected schools. Furthermore, petitioner does not allege that the children on whose behalf she seeks to bring this appeal attend the affected schools or are students with disabilities attending the affected schools. Therefore, the appeal must be dismissed for lack of standing.
Furthermore, petitioner has not made the requisite showing to maintain a class appeal on behalf of residents and children of the district. An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, et al., 48 id. 73, Decision No. 15,797). Other than a general statement alleging that the appeal is brought “on behalf of the 1465 residents and 610 children who are aggrieved and have been affected by the redistricting plan set for the 2015-2016 school year,” petitioner has failed to adequately describe the class which she seeks to represent so as to establish that all questions of fact and law are common to all members of the class. Therefore, class status is denied.
Respondent contends the appeal must be dismissed for failure to state a claim and failure to clearly state the specific relief requested, other than a stay. A petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself entitled” (8 NYCRR §275.10). Where petitioner is not represented by counsel, a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Application of Schenk, 47 id. 375, Decision No. 15,729). Where a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed (see Appeal of Stepien, 48 Ed Dept Rep 487, Decision No. 15,926; Appeal of Darrow, 43 id. 394, Decision No. 15,029). While I find that petitioner has adequately stated her claim in the petition, I note that the only relief petitioner requests is “[a] stay by the Commissioner of Education until finalized plans submitted including long range plans regarding the district’s enrollment, use of facilities and attendance zones which will be reviewed by the board and include a public hearing prior to the final vote by the Board of Education.” Petitioner’s request for a stay was denied on May 1, 2015. Because petitioner seeks no other relief beyond the stay request, the appeal must be dismissed as moot (Appeal of Christie, 47 Ed Dept Rep 30, Decision No. 15,612; Appeal of Eckel, 46 Ed Dept Rep 279, Decision No. 15,507; Appeal of Hempstead Parents/Community United, 45 Ed Dept Rep 354, Decision No. 15,346).
Respondent contends that 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). Petitioner appeals from “... the action of the Wappingers Central School District (WCSD) Board of Education (BOE) formally taken on March 9th, 2015 (Exhibit 1)” (Petition, p. 2, paragraph 3). Accordingly, petitioner had until April 8, 2015, 30 days from respondent’s March 9, 2015 decision, to commence this appeal by personal service of her petition and notice of petition on respondent. The petition was served on respondent’s district clerk on April 22, 2015, more than 30 days from respondent’s decision.
Petitioner contends that the appeal is timely because the superintendent of schools made several subsequent changes to the plan approved by respondent on March 9, 2015. However, respondent asserts that the superintendent’s actions were for purposes of implementing, not changing, the plan approved by respondent on March 9, 2015, and that the superintendent so acted with the full knowledge and consent of the board. Contrary to petitioner’s assertion, it is not necessary for a redistricting plan to include every detail of the final implementation of the plan, provided that respondent was advised of, and formally or informally approved of, each step of the redistricting process as it occurred (Appeal of Aloisio, et al., 38 Ed Dept Rep 169, Decision No. 14,009). According to the superintendent’s affidavit, prior to the board’s vote on March 9, 2015, the superintendent specifically advised board members that the final elementary school boundary maps were not complete, and that after the board’s approval of the superintendent’s recommendations, the superintendent would be meeting with each elementary school and taking into account comments received from the public before making the final maps. Petitioner has failed to rebut respondent’s assertion that the superintendent, in implementing the redistricting plan, acted with the full knowledge and consent of the board. 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). Upon the record before me, I find that respondent’s action on March 9, 2015 in approving the plan was complete and no further action by the board was necessary for the superintendent to act to implement the plan. Therefore, the appeal must be dismissed as untimely because it was commenced more than 30 days from March 9th.
Although unclear from the pleadings, petitioner also appears to argue that the appeal is timely because it was commenced within thirty days of respondent’s March 23, 2015 denial of her petition to place a proposition regarding the redistricting plan before district voters. However, respondent’s action on March 9, 2015 to approve the redistricting plan and respondent’s action on March 23, 2015 to deny placement of the voter proposition are two distinct actions by respondent, and the fact that the petition was served within 30 days from March 23, 2015 cannot excuse petitioner’s untimeliness with respect to the March 9th board action. Furthermore, there is nothing in the petition that alleges or claims that respondent’s March 23rd action denying placement of the voter proposition on the ballot was improper, or otherwise indicates that petitioner seeks to appeal respondent’s March 23rd action. Accordingly, the appeal must be dismissed to the extent it seeks to challenge respondent’s March 23rd action denying placement of petitioner’s proposition before district voters.
Even if the appeal were not dismissed on procedural grounds, it would also be dismissed on the merits. Petitioner alleges that the redistricting plan did not include the report or recommendation of the DAFC, and that respondent never formally accepted the DAFC’s recommendations or held a public hearing. Respondent states that the DAFC’s role is advisory in nature and its recommendation are not binding on the board, and that in any event most of the DAFC’s recommendations were the same as those ultimately approved by board.
It appears from the record that the DAFC was established by respondent for the 2014-2015 school year “to assist the Board of Education and District Administration with the efficient and effective use of building facilities.” Although unclear from the pleadings, petitioner appears to argue that the DAFC is an “advisory committee on school building utilization to investigate the educational impact of [a proposed school] closing” pursuant to Education Law §402-a(1), and that pursuant to that statute respondent was required to hold a public hearing and failed to do so. However, it must be noted that Education Law §402-a is discretionary and identifies factors to be considered, and actions to be taken, by a board of education only if the board chooses to establish such “advisory committee” Appeal of Hockswender et al., 52 Ed Dept Rep, Decision No. 16,400; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594). There is nothing in the DAFC’s charter, or elsewhere in the record, that specifically references the DAFC’s establishment as an “advisory committee” for purposes of §402-a, or indicates that the DAFC was formed to “investigate the educational impact of [a proposed] school closing.” Accordingly, since the record fails to establish that the DAFC was an advisory committee under §402-a, there is no requirement that respondent accept the recommendations of the DAFC or follow the provisions in Education Law §402-a, including holding a public hearing. In any event, the record shows that the recommendations of both the DAFC and the superintendent were provided to the board at its March 2, 2015 meeting, and noted as such in the board’s March 9, 2015 resolution accepting the superintendent’s recommendations.
More generally, petitioner complains that respondent failed to provide a full opportunity for the public to be heard, including an opportunity for community members to ask questions and have those questions answered. However, there is no general requirement in law that a board of education conduct a hearing upon any particular matter or grant to any person the right to be heard (Appeal of Bluemke, et al., 39 Ed Dept Rep 447, Decision No. 14,281), and complaints about public notice or lack of sufficient opportunity to comment are not grounds to invalidate a redistricting decision (Appeal of Sbrocchi, 42 Ed Dept Rep 380, Decision No. 14,887). Regardless, the record establishes that public comment on district reorganization was permitted at the March 10, 2014 meeting; the board held a public hearing on March 31, 2014 to discuss a report of the DAFC, prepared in collaboration with the Leadership for Education Achievement Foundation (LEAF); and the board subsequently rejected the DAFC report after considering the comments from the public hearing. The record further shows that public comment was permitted at a special meeting held by the board on March 2, 2015, which included presentations and recommendations from the superintendent and the DAFC, and at a regular board meeting held on March 9, 2015, at which the board, after hearing comments, voted to accept the superintendent’s March 2nd recommendations. Comments regarding the redistricting were also subsequently permitted at the March 23, 2015 board meeting.
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 (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194). Pursuant to Education Law §§1709(3), (33) and 1804(1), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein. In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. of Educ. Of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194). A board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).
Respondent contends that the approved plan will alleviate overcrowding, provide for consistency in curriculum (many instructional programs used in district’s elementary schools are currently designed for a K-6 grade configuration model), alleviate scheduling problems associated with professional development for teachers, alleviate teacher certification concerns (K-6 grade configuration allows 6th grade teachers who are certified childhood/elementary teachers to teach in an environment better-suited to their certificate and background), and allow full classroom art instruction for all students. While petitioner disputes certain specific details of respondent’s approved plan, I note that my inquiry in an appeal must focus on whether the redistricting plan approved by respondent is rational, not whether the issues addressed in the plan could have been better addressed by alternative approaches, such as petitioner’s suggestion for the development of a “long range plan” for the use of district facilities (Appeal of Alfano, et al., 39 Ed Dept Rep 229, Decision No. 14,224; Appeal of Aloisio, et al., 38 id. 169, Decision No. 14,009).
Although I understand that redistricting and grade reconfigurations are difficult for any community, a board of education is charged with making those difficult decisions. Petitioner’s mere disagreement with respondent’s findings and decision do not provide a basis to overturn respondent’s decision. On the record before me, I find that respondent’s decision was not irrational, arbitrary, capricious or contrary to sound educational policy.
I have considered petitioner’s remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE