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Decision No. 17,042

Appeal of JULIA HADLOCK, TERRENCE CHENG, CARMEN DELESSIO, CLAUDIA BOERA, KATHERINE BROMAGE, MICHAEL CARANGELO, JOSEPH CASTALDO, DONNA CHRISTIE, TIMOTHY CHRISTIE, AMY CIVETTA, MARY REICH COOPER, SLOAN COOPER, ADRIAN DAVIS, CATHLEEN DAVIS, TERESA DE LA GUARDIA, IRINA ELLISON, KATHLEEN FAY, MICHAEL GARBER, IGNAC GRASIC, JOHN GUSMANO, PETER HADLOCK, RANDY HANIN, SUSAN HARRIS, MONTIETH ILLINGWORTH, ADRIENNE KENNY, JOHN G. KENYON, MARGARET KENYON, YOUNG SU LEE-GRASIC, AMY LEFFLER, JOHN MERRITT BONNIE NOVAK, MICHAEL NOVAK, JOAN OTT, DARIUSZ PERKOWSKI, URSZULA PERKOWSKA, PATRICIA Z. SAVAGE, EDWARD SFREDDO, KAREN SINGER KATCHKO, ELIZABETH STABILE, ANDREW TEDDER, HEATHER TRIVEDI, MARGARET VAN VRANKEN, MICHAEL H. VAN VRANKEN and LAURA WILHELM from action of the Board of Education of the Katonah-Lewisboro Union Free School District regarding a school closing.

Decision No. 17,042

(February 10, 2017)

Ingerman Smith, L.L.P., attorneys for respondent, Neil M. Block, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Katonah-Lewisboro Union Free School District ("respondent") to close the Lewisboro Elementary School.  The appeal must be dismissed.

In the 2013-2014 school year, respondent’s school district operated one high school, one middle school and four elementary schools. In response to concerns regarding declining enrollment and increasing costs, respondent established a School Utilization Committee (the “Committee”) to investigate and propose recommendations for reconfiguring district schools.  The Committee met seven times between December 2012 and June 2013, and evaluated nine different reconfiguration models. 

When the Committee ultimately presented its findings to respondent on June 20, 2013, it endorsed either one of the following two models – closing one elementary school or closing two elementary schools.  The Committee then recommended that respondent commission a School Closure Task Force (the “Task Force”) to further research and study which one of the two recommended models should be implemented.  

On June 25, 2013, respondent established the Task Force to investigate the impact of closing one or two elementary schools and to prepare a written Educational Impact Statement (“EIS”) in accordance with Education Law §402-a, which sets forth the procedures and factors to be considered in closing a school building. Over the next six months, the Task Force held at least seven meetings and conducted four public hearings on the matter.   Thereafter, the Task Force prepared and circulated the EIS, which addressed each of the factors required to be considered under Education Law §402-a.  In the EIS, the Task Force recommended adopting the least burdensome model - i.e., the one requiring the closure of only one elementary school in the 2014-2015 school year, the Lewisboro Elementary School (the “school”) - based on several factors.

Insofar as is relevant to this appeal, the Task Force concluded in the EIS that respondent could save approximately $1,900,000 annually by closing the school.  Another factor considered by the Task Force was the demographic study, performed by Richard S. Grip, Ed.D., the Executive Director of Statistical Forecasting, LLC (the “demographer”) in August 2012 and updated in November 2013, which demonstrated that district-wide enrollment had been in steady decline, and then projected that the district would lose approximately 1,200 students by 2023-2024.  Regarding Lewisboro Elementary School itself, the demographer noted that it lost 125 students from 2008-2009 to 2013-2014 and was projected to lose another 93 students over the five year period from 2014-2015 to 2018-2019, whereupon its enrollment would stabilize.

On January 16, 2014, respondent conducted a public hearing to evaluate the impact of the proposed closure of the school on the district.  Respondent ultimately voted to close the school on January 23, 2014.  This appeal ensued.  Petitioners’ request for interim relief was denied on March 11, 2014.

Petitioners contend that respondent’s decision to close the school was irrational, arbitrary, and capricious because there was no financial need to close the school and the projected cost savings was grossly inaccurate.  Petitioners also argue that the methodology used by the demographer was unreliable and, therefore, the declining enrollment projections do not form a rational basis for closing the school.  Petitioners also claim that respondent failed to consider the ramifications of the school closure upon the community.

Respondent asserts that the EIS is a comprehensive compilation of various studies and reports which properly addressed all the factors set forth in Education Law   §402-a.  Respondent states that it carefully evaluated the EIS and studied the impact of closing the school in accordance with the procedures set forth in Education Law §402-a. Consequently, respondent argues that its decision to close the school was anything but arbitrary or capricious.

I must first address a procedural matter.  Respondent asks that I reject any new material contained in petitioners’ reply.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  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 containing new allegations that are not responsive to new material or affirmative defenses set forth in the answer.

Turning to the merits, 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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).

Pursuant to Education Law §1709(3) and (33), 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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006).

Accordingly, 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 Fettinger, et al., 47 Ed Dept Rep 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318, judgment granted dismissing stay request and petition, Sup. Ct., Albany Co., December 13, 2006; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).

Petitioners contend that school closings are routinely upheld when necessitated by financial reasons (see e.g., Appeal of Lagrange, 51 Ed Dept Rep, Decision No. 16,315; Appeal of Seligman, 31 id. 131, Decision No. 12,594) and maintain that, because respondent allegedly mischaracterized the financial need and cost savings related to closing the school, the decision to close the school must be set aside.  I find this argument unpersuasive.

It should be noted that under Education Law §402-a(2), the factors that must be addressed in an EIS do not include the “financial need” to close the school.  The projected need for the school must be assessed, as well as the costs and savings resulting from the closing, but there is no requirement that respondent be in poor financial condition in order to close a school.  Nevertheless, petitioners claim that there was no financial need to close the school because the district has operated with a $3,457,605 surplus, which it used to reduce the tax levy for the 2013-2014 school year.  A review of the record, however, reveals that this surplus was attributable to what appears to be a one-time savings obtained as a result of the district’s transition from having a self-insured health plan to the New York State Health Insurance Plan.   Petitioners also assert that the district’s absence from the New York State Office of the Comptroller’s list of districts with significant financial stress demonstrates the district is in “very sound financial shape.” This list, however, is based upon financial status as of June 30, 2013, and comes with a disclaimer specifically stating that it merely measures the level of financial stress a district is facing – not its level of fiscal health.

Petitioners also argue that the district’s 2013 audit report states that the district is financially sound, and notes a $6,000,000 difference between planned expenditures and actual expenditures.  Michael Jumper, the acting superintendent of the district, however, explains that this $6,000,000 difference is attributable to certain encumbrances and monies transferred from the general fund to the capital fund to address, inter alia, construction obligations, capital projects and equipment purchases.  Moreover, the purpose of this audit was to capture the district’s financial position as of June 30, 2013.  The audit did not include a thorough assessment of the district’s long-term financial health or any evaluation of the district’s per-pupil expenses or spending patterns. 

Turning to the cost issue, the governing statute requires that respondent consider the “initial costs and savings resulting from such closing” (Education Law §402-a[2][a]).  Here, the EIS contains a detailed and thorough analysis of the costs and savings resulting from such closure.  Petitioners, however, maintain that respondent misrepresented the cost savings because at the October 8, 2013 public hearing, respondent reported a projected cost savings of between $2,200,000 and $2,500,000, and this figure was disseminated throughout the community.  The record indicates that it was subsequently discovered that certain errors were made in calculating the projected cost savings.  As soon as the error was discovered, respondent corrected the figure and a revised projected cost savings of $1,900,000 was provided to the community at subsequent public hearings, and to the Task Force, which used the revised figure in the EIS.

 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).  As described above, while petitioners allege that respondent mischaracterized, misrepresented and/or miscalculated financial need and cost, they have failed to substantiate these claims and therefore have failed sustain their burden of proving that respondent acted arbitrarily and capriciously in this regard.

 Regarding the enrollment issue, petitioners argue that the methodology used by the demographer was unreliable and does not accurately project district enrollment.  Specifically, petitioners contend that the demographer erred by using the “Cohort-Survival” method in projecting enrollment, a method that the demographer himself allegedly stated was a poor long-term predictive tool in a paper he co-authored 15 years ago (the “1999 Paper”).  Petitioners further take issue with the demographer’s projections, arguing that errors were made in the analysis. 

In support of their position, petitioners cite to an e-mail from Dr. Jeremy R. Porter, Ph.D., who appears to be a statistician/demographer affiliated with the City University of New York who is a friend of petitioner Terrence Cheng (the “Porter e-mail”). The Porter e-mail tells Mr. Cheng that there were ways to create “reliability issues” with the demographer’s report due to the “simplicity of the analysis,” and sets forth a few examples.  In doing so, Dr. Porter concedes, “to some degree I feel like I am grasping at straws a little here.”

The demographer, however, has submitted a sworn affidavit stating that petitioners have taken his words from the 1999 Paper out of context, as he was doing a review of differing projection methods and was merely discussing what some researchers thought of the “Cohort-Survival” method.  He also states that for all of his client school districts (which include the City School District of the City of New York), he uses the “Cohort-Survival” method to project enrollment and that it is the most accepted enrollment projection method in the field. 

In addition, the demographer specifically addresses petitioners’ assertions that the August 2012 demographic study used data from 2006-2007 to 2011-2012 that represented an atypical decline in enrollment, and that the birth data used was flawed because it involved two years of historically low birth rates.  The demographer avers that the data indicates that the district has historically had declining enrollment which is projected to continue, and that the last three years of birth data were used because the birth rates had radically declined from prior years, creating a risk of overstating the projected birth rates if additional years of data were included.

In fact, petitioners’ own primary demographic evidence, the Porter e-mail, actually states that the demographer’s report “would suffice in terms of passing the test in local government” as “it is tough to critique because it is such a simple analysis and so routinely applied.”  While petitioners make conclusory allegations about alleged flaws in the analysis, based on this record, petitioners have failed to sustain their burden of establishing that respondent’s reliance upon the demographer’s report was irrational and therefore arbitrary and capricious.

Lastly, petitioners further complain that respondent violated Education Law §402-a by failing to consider the ramifications of the school closing on the community, but this claim is not supported by the record. The record indicates that there was community involvement and input prior to respondent’s decision to close the school, and community concerns are noted in the EIS and its appendices.  Although petitioners contend that respondent failed to fully investigate traffic and safety concerns, the EIS indicates that the Task Force did consider transportation issues in developing the redistricting plan, and I note that there is no requirement in law compelling respondent to conduct a hearing upon any particular subject (Appeal of Capozzoli, 31 Ed Dept Rep 162, Decision No. 12,606).

Based on the record before me, it is clear that the EIS addressed all the required factors (see Education Law §402-a). In reaching its decision, respondent thoroughly reviewed the matter and based its decision on several factors including cost and declining enrollment.  Although I understand that school closings are difficult for any community, a board of education is charged with making those difficult decisions and, on this record, I will not substitute my judgment for that of respondent and cannot find that respondent’s determination to close the school was arbitrary, capricious or unreasonable (Appeal of LaGrange, 51 Ed Dept Rep, Decision No. 16,315; Appeal of Brarens, 51 id., Decision No. 16,317; Appeal of Seligman, 31 id. 131, Decision 12,594).  

THE APPEAL IS DISMISSED.

END OF FILE