Appeal of PEOPLE AGAINST THE CONSOLIDATION OF ELEMENTARY SCHOOLS, JESSICA FETTINGER, JOSEPH and KATHY TAMBASCO, NICHOLAS and JANICE PANASIUK, VIVIAN and ROBERT FITZ-JAMES, and VINCENZO MAUTONE from action of the Board of Education of the Enlarged City School District of the City of Amsterdam regarding a school closing.

Decision No. 15,604

(July 12, 2007)

Young, Sommer, Ward, Ritzenberg, Baker & Moore, LLC, attorneys for petitioners, Robert A. Panasci, Esq., of counsel

Mycek Law Firm, attorneys for respondent, William H. Mycek, Esq., of counsel

AHEARN, Acting Commissioner.--Petitioners appeal the decision of the Board of Education of the Enlarged City School District of the City of Amsterdam (“respondent”) to close the Clara S. Bacon Elementary School (“the Bacon School”).  The appeal must be dismissed.

Individual petitioners are district residents whose children attended or would have attended the Bacon School.  Petitioner People Against the Consolidation of Elementary Schools (“PACES”) is an unincorporated association whose membership includes parents of children who attended or would have attended the Bacon School.

On January 25, 2006, respondent’s superintendent presented the district’s proposed 2006-2007 budget to respondent, and respondent directed the superintendent to reduce the budget by approximately $2.2 million.

At respondent’s February 13, 2006 budget meeting, the possible consolidation of the district’s five elementary schools was discussed as a strategy for making the necessary budget cuts.  At respondent’s February 15, 2006 meeting, a board member moved to accept the superintendent’s recommendation to close the Bacon School, but withdrew this motion after the board met in executive session.

At the board’s February 22, 2006 meeting, the superintendent presented a report entitled “The Consolidation of Elementary Schools” (“the report”).  The report presented two options for reducing the district’s budget – keeping all five elementary schools open or closing either the Bacon School or the Barkley Elementary School.  The report contained analyses of several factors, including the district’s five-year enrollment projections, transportation, unemployment insurance estimates, available classroom space and projected class sizes.  According to the report, if all five elementary schools remained open, the district would have to eliminate 25 teaching positions in order to reduce the budget by $2.2 million.  By closing one elementary school, the district would need to cut only 14 teaching positions and would still have an adequate number of available classrooms to accommodate anticipated enrollment.  The report also listed respondent’s rationale for closing the Bacon School as:  “[b]uilding not handicapped accessible; [s]mall student population to move to remaining schools; [r]edistribute reconstruction funding of $1.5 million; [r]esalable building; recent reconstruction increases resale value and opportunity.”

The superintendent held a public meeting on February 28, 2006 at which he discussed the report with district residents.  On March 1, 2006, the board passed a resolution to close the Bacon School effective for the 2006-2007 school year.  This appeal ensued.  Petitioners’ request for interim relief was denied on April 18, 2006.

Petitioners argue that respondent failed to comply with the school closing procedures set forth in the Education Law by not establishing an advisory committee and investigating the educational impact of closing the Bacon School.  Petitioners also contend that respondent’s decision was arbitrary, capricious and without a reasonable basis.

Respondent maintains that the school closing procedures articulated in Education Law §402-a are optional.  Respondent further contends that its decision to close the Bacon School was not arbitrary and capricious as it was made after careful consideration and study had shown that cost savings could be achieved without negatively impacting the quality of its educational program.

I must first address the issue of standing.  PACES is an unincorporated association of parents and residents of the district.  As such, it lacks standing to maintain an appeal under Education Law §310 (seeAppeal of Hempstead Parents/Community United, 45 Ed Dept Rep 381, Decision No. 15,357; Application of Simmons, 43 id. 7, Decision No. 14,899; Appeal of D’Oronzio and D’Agostino, 41 id. 457, Decision No. 14,745).

As to the individual petitioners, the appeal must be dismissed on the merits.  They contend that respondent should have followed the procedures set forth in Education Law §402-a before deciding to close the Bacon School.  Education Law §402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an “advisory committee on school building utilization to investigate the educational impact of such a closing” (Education Law §402-a[1]; Appeal of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Seligman, et al., 31 id. 131, Decision No. 12,594).  The decision to establish an advisory committee rests solely with the board (seeAppeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594).  When such a committee is established, the statute requires consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (seeAppeal of Seligman, et al., 31 Ed Dept Rep 131, Decision No. 12,594).

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 Hoey and Kosowski, 45 Ed Dept Rep 501, Decision No. 15,394; Application of Bliss, 45 id. 308, Decision No. 15,331; Appeal of Rubinstein, 45 id. 299, Decision No. 15,329).  Petitioners claim that respondent violated Education Law by not forming an advisory committee.  However, petitioners’ claim is undercut by the very fact cited to support it.  The law makes clear that in choosing not to form an advisory committee, respondent was not obligated to follow the procedures outlined in §402-a.

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 Bailey, et al., 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225).  Pursuant to Education Law §1709(3) and (33), and §2503(1), a board of education of a city school district 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., 27 NY2d 333; Appeal of Bailey, et al., 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).  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 Bailey, et al., 45 Ed Dept Rep 270, Decision No. 15,318; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225).

The record before me demonstrates that respondent considered several factors in deciding to close the Bacon School, including the impact on the district’s educational programs, budget concerns, transportation and class size.  In his affidavit, the superintendent explains that his recommendation to close the Bacon School was based primarily upon the need to reduce the district’s budget while minimizing the impact on educational programs.

Further, at several points prior to respondent’s March 1, 2006 vote, the individual petitioners and other members of the community had the opportunity to attend open meetings at which the issue of closing an elementary school was discussed.  The superintendent’s affidavit states that, in addition to the public meeting held on February 28, 2006, he also met with the school’s staff on February 15, 2006, and with the parents of school students on February 16, 2006, in order to review the proposed budget and to discuss the proposed school closing.  Thus, on the record before me, I cannot conclude that respondent’s decision lacks a rational basis.

Although I understand that school closings are difficult for any community, a board of education is charged with making those difficult decisions.  Since I find that respondent properly exercised its discretion, the appeal must be dismissed.

THE APPEAL IS DISMISSED.

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