Appeal of MARGARET HATTON from action of the Board of Education of the East Ramapo Central School District regarding a school closing.

Decision No. 15,954

(July 23, 2009)

Greenberg, Wanderman & Fromson, attorneys for respondent, Steven M. Fromson, Esq., of counsel

Huxley, Interim Commissioner.--Petitioner challenges the decision of the Board of Education of the East Ramapo Central School District (“respondent”) to close one of its 10 elementary schools.  The appeal must be dismissed.

On April 1, 2009, respondent voted to close its Colton Elementary School (“Colton”).  This appeal ensued.  Petitioner’s request for interim relief was denied on May 8, 2009.

Petitioner alleges that the building reorganization committee (“committee”), established by the superintendent, was improperly comprised of “high-level” employees of the district, that she was not permitted to serve on the committee and that committee meetings were closed to the public.  Petitioner maintains that the committee recommended the closing of the Lime Kiln Elementary School, that respondent based its decision to close Colton on a deficient demographic study, that the closing of Colton will increase the student/teacher ratio, that respondent did not consider the impact of Colton’s closing on students with disabilities and, therefore, respondent’s decision was arbitrary and capricious.  Petitioner also contends that teachers were discouraged from publicly objecting to the school closing and alleges that certain board members had conflicts of interest.  Finally, petitioner argues that respondent failed to provide the public with committee records in violation of the Freedom of Information Law (“FOIL”).

Petitioner requests that I require respondent to commission a demographic study to ascertain whether Colton should be closed, that I order the formation of a new, representative, building reorganization committee which is open to the public and that I require respondent to inform its employees of their right to address the board without threat of reprisal.

Respondent maintains that the petition fails to state a claim and that petitioner has failed to meet her burden of proof and join necessary parties.  Respondent contends that it is within its discretion to decide whether to establish an advisory committee under Education Law §402-a.  Respondent denies the conflict of interest allegations and maintains that the FOIL claims must be dismissed for lack of jurisdiction.

The appeal must be dismissed to the extent petitioner seeks relief on behalf of other district employees.  While petitioner has standing to bring this appeal on behalf of herself, she lacks standing to assert the rights of others (Appeals of Giardina and Carbone, 43 Ed Dept Rep 395, Decision No. 15,030).  In addition, petitioner’s alleged violations of FOIL must be dismissed.  Section 89 of the Public Officers Law vests exclusive jurisdiction over complaints alleging FOIL violations in the Supreme Court of the State of New York and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Application of Berman, 46 Ed Dept Rep 378, Decision No. 15,537; Appeal of Berman, 46 id. 64, Decision No. 15,442; Appeal of Hubbard, 45 id. 451, Decision No. 15,379).  Therefore, I have no jurisdiction to address the FOIL allegations raised in this appeal.

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; Appeals of Patashnick and Waters, 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) 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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).  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 Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeals of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone and Trombley, 39 id. 135, Decision No. 14,194).

Education Law §402-a authorizes and recommends that a board of education establish an "advisory committee on school building utilization to investigate the educational impact” of a school closing (Education Law §402-a[1]; Appeals of Patashnick and Waters, 39 Ed Dept Rep 236, Decision No. 14,225; Appeal of Seligman and Rosenberg, 31 id. 131, Decision No. 12,594).  The decision to establish an advisory committee rests solely with the board (seeAppeal of Seligman and Rosenberg, 31 Ed Dept Rep 131, Decision No. 12,594).  When such a committee is established, the statute requires a consideration of certain factors, notice and a public hearing (Education Law §402-a, Appeal of Seligman and Rosenberg, 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 and Rosenberg, 31 Ed Dept Rep 131, Decision No. 12,594).

Although she does not specifically refer to Education Law §402-a, petitioner requests that I order the formation of a new, representative committee before respondent makes a final decision.  However, there is no basis for ordering respondent to form a new advisory committee pursuant to §402-a since it is discretionary on the part of respondent and the present record does not indicate that respondent affirmatively chose to form a §402-a committee (seeAppeals of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312).

Instead, in July 2008, the superintendent created a long range planning committee, similar in composition to a §402-a committee, made up of parents, community leaders, district residents, members of the teachers’ association leadership, building and central administrators and transportation and building and grounds supervisors.  The committee considered numerous factors including demographic data.  Based upon input from the committee, the superintendent ultimately recommended to respondent the closing of the Lime Kiln Elementary School.  Public discussion and community forums regarding this recommendation followed.  On April 1, 2009, respondent decided to close Colton rather than Lime Kiln because it had the lowest enrollment of all the elementary schools, was within a specific geographic target area and because it represented a target grade level.  Respondent also considered fiscal, building capacity, transportation and programmatic implications.  The board determined that closing Colton would result in approximately $1.4 million in savings during the 2009-2010 school year and would allow the district to proceed with expanding its full-day kindergarten program. 

It is apparent that respondent thoroughly considered the matter and based its determination on several factors including cost, enrollment and programming.  Accordingly, based on the record before me, I cannot conclude that respondent’s decision to close Colton was arbitrary, capricious or irrational.

I have considered the parties’ remaining contentions and find them without merit.

THE APPEAL IS DISMISSED.

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