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Decision No. 15,515

Appeal of KATHLEEN TORRES, on behalf of her children, KYLA and MARK OFFICER, and the P.S. 2 PARENT ASSOCIATION, from action of the New York City Department of Education relating to school reorganization.

Decision No. 15,515

(January 11,2007)

Gibson, Dunn & Crutcher, LLP, attorneys for petitioner, Patrick L. Robson and Olga L. Fuentes, Esqs., of counsel

Michael Cardozo, Esq., Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

MILLS, Commissioner.--Petitioner appeals the decision of the New York City Department of Education (“respondent”) to relocate P.S. 2 in September 2005.  The appeal must be dismissed.

During the 2004-2005 school year, petitioner Kathleen Torres (“Ms. Torres”) was the president of the P.S. 2 Parent Association (“PA”) and her two children attended elementary school at P.S. 2.  By letter dated March 29, 2005, the regional superintendent notified parents, staff and students that P.S. 2 was being relocated from its then current facility to the P.S. 63 complex, two blocks away, in September 2005.  The relocation was to allow for the creation of two new high schools at the P.S. 2 location to address continuing growth in the high school student population in respondent’s district.

The PA appealed the decision and respondent upheld the regional superintendent’s determination by letter dated July 11, 2005.  This appeal ensued.  Petitioner’s request for interim relief was denied on August 18, 2005.

Petitioner contends that the relocation plan is arbitrary and capricious, that respondent deliberately misled the community before the move was announced and that respondent adopted the plan without any input from parents, teachers or students.  Petitioner further alleges that the school to which her children are now assigned is inferior to the school they previously attended and that respondent violated Education Law §401 by failing to obtain voter approval prior to adopting the reorganization plan.

Respondent contends that its decision to relocate the students and staff of P.S. 2 to the P.S. 63 complex is neither arbitrary, capricious nor contrary to sound educational policy.  Respondent contends that the relocation was necessary to create two new high schools to address the overcrowding and the continuous rise in the high school population in respondent’s district.  Respondent further alleges that the PA does not have standing to commence this appeal and that §401 of the Education Law does not apply.

At the outset, I must address several procedural issues.  First, the PA is an unincorporated association that lacks standing to commence this appeal (Appeal of Copenhagen Teachers’ Assoc., et al., 45 Ed Dept Rep 459, Decision No. 15,381; Application of Simmons, 43 id. 7, Decision No. 14,899; Appeal of Lancaster Parent Alliance, 38 id. 356, Decision No. 14,053).  However, to the extent that Ms. Torres is acting on behalf of her two children who attended P.S. 2, she has standing to bring this appeal.

The appeal must be dismissed as moot to the extent that petitioner seeks to stop the relocation.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of B.K. and R.K., 44 Ed Dept Rep 195, Decision No. 15,146; Appeal of V.L., 44 id. 160, Decision No. 15,132; Appeal of Garvin, 44 id. 30, Decision No. 15,087).  Since the students and faculty of P.S. 2 were relocated to the P.S. 63 complex, petitioner’s request to prevent the relocation must be dismissed as moot.

Nevertheless, the entire appeal must also 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 Polanco, 45 Ed Dept Rep 28, Decision No. 15,249; Appeal of Alves, 44 id. 334, Decision No. 15,190).  A board of education has broad discretion regarding the assignment of students to schools (Matter of Addabbo, et al. v. Donovan, et al., 22 AD2d 383; affd 16 NY2d 619, cert denied 382 US 905; Appeal of Polanco, 45 Ed Dept Rep 28, Decision No. 15,249).  Moreover, pursuant to Education Law §§2590-h(17) and 2554(9), in respondent’s district the Chancellor has the power to establish such schools or classes that he “shall deem necessary to meet the needs and demands of the city”.    Therefore, petitioner bears the burden of demonstrating that respondent’s decision to reorganize its schools was arbitrary, capricious or contrary to sound educational policy (Appeal of Patashnick, 39 Ed Dept Rep 236, Decision No. 14,225; Appeal of Malone, 39 id. 135, Decision No. 14,194).

Petitioner has not met their burden of proof.  Respondent’s reason for relocating students and faculty from P.S. 2 to the P.S. 63 complex was to maximize the utilization of school space and to improve the overcrowded classrooms for high school students in the district.  During the five years preceding this proposal, respondent observed a continual rise in its high school population accompanied by a significant decrease in enrollment in its elementary schools.  By moving P.S. 2 students and staff into the P.S. 63 complex, respondent was able to create two new high schools on the P.S. 2 campus while maintaining the same staff, student body and education programs of the previous P.S. 2.

Moreover, petitioner’s reliance on Education Law §401 is misplaced because that provision is inapplicable to respondent.  Section 2590-h(17) of the Education Law provides the Chancellor with the powers and duties described in Education Law §2554, which are usually reserved to a local board of education.  Pursuant to Education Law §§2554(9) and 2590-h(17), the Chancellor has the power to establish and maintain its elementary schools as he shall deem necessary to meet the needs and demands of the city. 

Petitioner has also expressed concern about the condition of the P.S. 63 building. The record reveals, however, that substantial monies were allocated for renovations and improvements to the P.S. 63 complex.  While I am sympathetic to petitioner’s concerns, I conclude that respondent’s decision was not arbitrary, capricious or contrary to sound educational policy (Appeal of Polanco, 45 Ed Dept Rep 28, Decision No. 15,249; Appeal of Kershaw, 37 id. 186, Decision No. 13,837).

In light of the foregoing disposition, I need not address petitioner’s remaining concerns.