Appeal of KEVIN and JULIE JOYCE for the CONCERNED PARENTS of CENTRAL VALLEY, on behalf of the children attending Fisher Elementary (Mohawk) and Barringer Road Elementary (Ilion) schools, from action of the Board of Education of the Central Valley Central School District regarding school reorganization.

Decision No. 17,465

(July 31, 2018)

Ferrara Fiorenza, PC, attorneys for Respondent, Craig M. Atlas, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decision of the Board of Education of the Central Valley Central School district (“respondent”) to reorganize its schools by changing the grade configuration of its elementary schools.  The appeal must be dismissed.

In 2013, the Central Valley Central School District (“district”) was formed through merger of the former Ilion and Mohawk Central School Districts.  The district presently has four school buildings, the Fisher Elementary School in Mohawk (“Fisher”), the Barringer Road Elementary School in Ilion (“Barringer Road”), Jarvis Middle School in Mohawk (“Jarvis”), and the high school known as Central Valley Academy in Ilion (“CVA”).  As of July 21, 2016, Fisher in Mohawk and Barringer Roger in Ilion housed prekindergarten through grade 4; Jarvis housed grades 5-8 in Mohawk; and CVA housed grades 9-12 in Ilion.

 At board meetings held March 26, October 29, and December 17, 2014, respondent discussed various grade reconfiguration proposals within the context of a proposed capital project.  The capital project, which involves reconstruction of Jarvis in the 2018-2019 and 2019-2020 school years as well as work at both elementary schools and CVA, was approved by the voters in May 2015.

On December 16, 2015, respondent voted to approve the grade reconfiguration of its elementary schools.  Starting with the 2016-2017 school year, Fisher would be reconfigured to house all students in prekindergarten through grade one and Barringer Road to house all students in grades 2-4.

Furthermore, during the reconstruction work at Jarvis in the 2018-2019 and 2019-2010 school years, Jarvis will be closed and its students will be housed in the elementary schools and the high school.  Respondent’s superintendent asserts in an affidavit that students in 5th and 6th grade will be placed in Barringer Road, and students in 7th and 8th grade will be placed in CVA.  Accordingly, it appears that during these two school years, Fisher will house prekindergarten through grade 2, Barringer Road will house grades 3-6, and CVA will house grades 7-12.[1]  Respondent anticipates that beginning with the 2020-2021 school year, the two elementary schools will return to their 2016-2017 school year grade configurations.

After receiving complaints from certain parents and employees concerning the grade reconfiguration, respondent held a public meeting on April 11, 2016, during which people were allowed to discuss their concerns.  During this meeting, respondent voted to conduct a special public meeting on May 2, 2016, so that people could further discuss their concerns.  At the May 2, 2016 public meeting, petitioners asked respondent to rescind its vote to realign the elementary schools.  Respondent stated that it would consider rescission during its next regular meeting on May 25, 2016.  On May 25, 2016, petitioners again requested rescission of the elementary school realignment.  Petitioners’ request was put to a vote by respondent and the request was defeated.[2]  This appeal ensued.  Petitioners’ request for interim relief was denied on June 27, 2016.

Petitioners complain that the public had been told prior to the centralization that the neighborhood elementary schools would remain in place and that the public was not aware that the grade reconfiguration was being discussed at the December 25, 2015 board meeting or that the district changed it capital plan to accommodate the grade reconfiguration Petitioners assert that the purpose behind the reconfiguration was to increase class sizes and eliminate staff to cut costs.  Petitioners oppose the reconfiguration because of their belief that it will cause some students to change schools an inordinate number of times, up to six times in the next six years, and will cause some students to spend 1.5 to 1.75 hours per day on school buses. They assert that students learn better through repetition and routine, and the moving of students to different schools during the construction period would, in petitioners’ opinion, cause the students to be confused and adversely affect them.

As relief, petitioners request that a determination be issued ordering respondent to refrain from implementing the realignment of grades until the capital project is complete and the community is given a chance to speak on the realignment.

Respondent argues that petitioners’ appeal is untimely, fails to state a claim for which relief may be granted, that the “Concerned Parents of Central Valley,” which petitioners purport to represent, is an unincorporated association and as such has no standing to bring this appeal and that petitioners therefore lack standing to maintain this appeal, and that respondent’s action to reorganize the grades in its elementary schools was not arbitrary or capricious.  Respondent argues that petitioners have already had an opportunity chance to speak at public meetings on the capital project and the  proposed grade reconfiguration on March 26, 2014, October 29, 2014, December 17, 2014, May 2, 2016 and May 25, 2016.  Respondent also asserts that the grade reconfiguration is educationally and financially sound for a variety of reasons, including but not limited to: (a) the district will be unified by bringing students of the same grade into the same building; and (b) by bringing students of the same grade into the same building, teachers will have a better ability to address disparities in academic performance.

I must first address the procedural issues.  Respondent contends that petitioners lack standing to maintain this appeal.  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 Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In the petition, petitioners allege that they are district residents and characterize themselves as concerned parents of children attending respondent’s schools. Status as a district resident does not confer standing to challenge a grade reconfiguration absent allegations that that the petitioner’s civil, personal or property rights were directly affected (see e.g. Appeal of Wahl, 56 Ed Dept Rep, Decision No. 17,086).  However, parents of students attending a school whose grades are being reconfigured have standing to challenge such a grade reconfiguration (see e.g. Appeal of Breslow, et al., 56 Ed Dept Rep, Decision No. 17,080; Appeal of Baum, 49 id. 260, Decision No. 16,019; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; cf. Appeal of Buzzard, 54 id., Decision No. 16,653).

Petitioners seek to bring this appeal as representatives of other parents of students attending respondent’s elementary schools.  However, to have standing, petitioners must be directly affected by the action being appealed and may not claim standing based on damage or injury to the rights of others.  In making this assertion, petitioners appear to be seeking class status. 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 Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  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 Radford, et al., 57 Ed Dept Rep, Decision No. 17,284; Appeal of Pollicino, et al., 48 id. 279, Decision No. 15,858).  In this instance, petitioners have failed to set forth the number of students and parents in the class they purport to represent, nor have they established that all questions of fact and law are common to the class.  Therefore, class status is denied. 

To the extent petitioners claim that they are acting on behalf of the Concerned Parents of Central Valley, it appears that such group is an unincorporated association. Petitioners have provided no evidence that this organization is incorporated, and it appears to be a voluntary association of individuals acting together for a specific cause or purpose.  However, an unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).   An individual representative of an unincorporated association has no greater standing to maintain such an appeal than the association itself (see e.g. Appeal of Barse, 54 Ed Dept Rep, Decision No. 16,753; Appeal of Beilman, 38 id. 644, Decision No. 14,109).  Therefore, petitioners do not have standing as representatives of the Concerned Parents of Central Valley.

However, I find that petitioners, as parents of children attending respondent’s schools, have standing in their own right to maintain this appeal.  While the petition is far from clear, given petitioners’ characterization of themselves as concerned parents and respondent’s allegation in the answer that petitioners lack standing to bring an appeal “on behalf of any children other than their own minor children,” I decline to dismiss the appeal for lack of standing.

Nevertheless, 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).  Respondent’s determination to approve the reconfiguration of its elementary schools, effective with the 2016-2017 school year, was rendered on December 16, 2015.  This appeal was not commenced until June 15, 2016, approximately 6 months later.  Therefore, petitioners’ challenge to that determination is untimely.

It appears from the record that on May 25, 2016, a motion to reconsider its prior action and delay the elementary school grade reconfiguration until the 2018-2019 school year was considered by respondent and was not approved.  It is well-settled that a reconsideration request does not extend the time within which an appeal must be commenced (Appeal of Cole, 57 Ed Dept Rep, Decision No. 17,180; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Therefore, petitioners cannot claim that their time to appeal is measured from respondent’s refusal on May 25, 2016 to reconsider its prior action and delay implementation of the grade reconfiguration. 

Petitioners have not submitted a reply and have provided no excuse for the delay in bringing this appeal.  Therefore, the appeal must be dismissed as untimely.

Even if the appeal was not dismissed on procedural grounds, it would be dismissed on the merits. 

Decisions regarding 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 Ad Hoc Committee to Save Kings Elementary School, et al., 53 Ed Dept Rep, Decision No. 16,530; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194). Pursuant to Education Law, 1709 (3) and (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 Mamroneck, 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, et al., 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 and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

On this record, petitioners have not met their burden of proving that respondent’s action in reorganizing its elementary schools was arbitrary, capricious or contrary to sound educational policy. 

Contrary to petitioners’ arguments about the public’s lack of knowledge about the proposal to reorganize the district’s schools, the record indicates that in 2014 respondent repeatedly discussed in public board meetings the possibility of a grade reconfiguration that would result in all prekindergarten through grade 1 students being housed in one elementary school and all grades 2-4 students being housed in the other. This was done in conjunction with a discussion of the proposed capital project, particularly at the October 29, 2014 meeting.  To the extent petitioners complain about the notice provided by respondent of its intent to consider the grade reorganization at its December 16, 2015 meeting, that is an issue of compliance with the Open Meetings Law.  Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of Flippen, 57 Ed Dept Rep, Decision No. 17,296; Appeal of McColgan and El-Rez, 48 id. 493, Decision No. 15,928). 

One of petitioners’ two primary contentions relates to the excessive number of times some students would have to change schools because of the combined effect of the grade configuration change and the closing of the middle school for two years.  As respondent contends, however, the number of times students will move to new schools is largely a result of the temporary closing of the middle school and the need to relocate students in grades 5-8 for two years.  Petitioners have not proven that the grade configuration change itself will cause students to change schools an inordinate number of times, nor have they proven that the result is educationally unsound.  Respondent’s superintendent asserts that in any relocation, substantially all the students in a particular grade will be kept together, and petitioners’ speculation that extreme confusion will result from multiple moves of grades to new buildings is not sufficient to establish that the grade reconfiguration itself was educationally unsound. 

Petitioners’ other major contention is that the reconfiguration plan will result in students spending an inappropriately long time being transported to school.  While petitioners make a conclusory allegation that some students will spend will spend 1.5 to 1.75 hours a day on a school bus, this is denied by respondent and petitioners have not proven such allegation.  Respondent asserts that changes in school bus routes will lessen the average time that students will be on school buses, and that it has formed a Transportation Committee, which includes community members, to study possible future changes.  In any case, I am not persuaded that such travel times, which are common in many geographically dispersed school districts, render a grade reconfiguration arbitrary and capricious or educationally unsound.  Neither the Education Law nor the Commissioner's regulations specify maximum time limits for the transportation of students (see e.g. Appeal of McCarthy and Bacher, 42 Ed Dept Rep 329, Decision No. 14,872; Appeal of Fullam, 38 id. 227, Decision No. 14,021). In fact, prior Commissioner's decisions have upheld one-way student commutes of one and one-half hours as not excessive (Appeals Gorsky, Burbank, et al., 47 Ed Dept Rep 162, Decision No. 15,658; Appeal of Reich, 38 id. 565, Decision No. 14,094; Appeal of Lavin, 32 id. 249, Decision No. 12,821).  Thus, the travel times cited by petitioners, even if proven, are not excessive and do not render the grade reorganization arbitrary and capricious.

On this record, respondent has articulated educational and financial reasons for the grade reconfiguration, which demonstrate that there was a rational basis for its determination.  Petitioners have not met their burden of proving that respondent’s determination was arbitrary and capricious or contrary to sound educational policy.

In light of the above disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

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