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Decision No. 16,317

Appeal of AMBER D. BRARENS, JOHN BRUCE, KYLE KOLLHOFF and LEONARD PHILIP, II from action of the Board of Education of the City School District of the City of Corning regarding a school closing.

Decision No. 16,317

(November 21, 2011)

Harris Beach, PLLC, attorneys for respondent, Alfred L. Streppa, Esq., of counsel

KING, JR., Commissioner.--Petitioner appeals the decision of the Board of Education of the City School District of the City of Corning (“respondent”) to close an elementary school.  The appeal must be dismissed.

On or about July 30, 2008, respondent adopted Alternative C, a $178 million school facilities plan that called for the closing of Lindley-Presho Elementary School (“Lindley”), the transfer of Lindley students to Erwin Valley Elementary School (“Erwin”) and the transfer of pre-kindergarten students from another elementary school to Erwin.  To make it possible for Erwin to safely accommodate the transferred students, Alternative C provided approximately $4.5 million for 18,650 square feet of additions.  On December 15, 2009 and March 16, 2010, district voters rejected Alternative C.

At a budget meeting held on March 17, 2010, respondent revealed that it was projecting an $8.4 million deficit for the 2010-2011 school year.  On March 31, 2010, the superintendent presented a list of proposed budget reductions totaling approximately $7.1 million that included savings of $491,415 resulting from the closing of Lindley.

By letter dated April 5, 2010, the Corning Incorporated Foundation (“foundation”) notified the superintendent that it had approved a $1.7 million grant to the district “contingent upon the [s]chool [d]istrict demonstrating that adequate professional resources are in place to meet the high standards currently provided by the staff of the Corning-Painted Post Area School District.” 

On April 28, 2010, respondent voted to close Lindley and transfer Lindley students to Erwin.  This appeal ensued.  Petitioners’ request for interim relief was denied on June 2, 2010.

Petitioners allege that the decision to close Lindley was an attempt to bring about the restructuring provided for in the defeated Alternative C.  Petitioners maintain that Erwin, as currently configured, cannot accommodate Lindley students.  Petitioners argue that, as a result, the expenditures for additional improvements to Erwin are necessary, that they will eventually have to be made and that their costs would exceed any theoretical savings achieved by closing Lindley.  Petitioners also maintain that closing Lindley will result in overcrowding at Erwin and a decline in property values.  Petitioners allege that respondent’s cost saving estimates are incorrect.  Petitioners contend that the district is either contradicting its Education Law §402-a plan or it does not have such a plan and is therefore acting irrationally.  Petitioners allege that respondent compromised its budget decision-making process by accepting the conditions of the foundation’s grant.  Finally, petitioners contend that respondent’s actions were arbitrary and capricious and request that I require respondent to maintain Lindley as an elementary school.

I must first address several procedural issues.  Petitioners object to respondent’s late answer.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR §276.3).  Further, a late answer may be considered in the discretion of the Commissioner upon consideration of the proffered reason for the delay (Appeal of Ortiz, 47 Ed Dept Rep 383, Decision No. 15,731; Appeal of a Student with a Disability, 46 id. 540, Decision No. 15,589).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed to be true statements (8 NYCRR §275.11; Appeal of Hamblin, et al., 48 Ed Dept Rep 421, Decision No. 15,902; Appeal of Smith, 48 id. 125, Decision No. 15,813).  Respondent’s attorney explains that the answer was timely signed on June 10, 2010 but, due to an error when he was out of the office, was filed in respondent’s internal file and was not properly served on petitioners until June 24, 2010.  I do not, however, find this excuse compelling.  Accordingly, I have not accepted respondent’s answer, and petitioners’ factual statements are deemed to be true.  However, respondent’s affidavits and exhibits in opposition to petitioners’ request for interim relief are properly part of the record before me and, to the extent that such documents are responsive to the allegations contained in the petition, I have considered them.

Petitioners also contend that respondent’s answer must be excluded for improper verification.  Because the answer has been excluded as untimely, I need not address this issue.  Likewise, I need not consider petitioners’ reply to respondent’s answer.

However, petitioners also urge that, should I consider respondent’s papers in opposition to petitioners’ request for interim relief, I should also consider their reply and exhibits submitted in response thereto.  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).  I have considered petitioner’s reply to the extent that it is responsive to affidavits in opposition to the stay and does not add claims that should have been in the petition.

Petitioners submit two newspaper articles to support their position.  It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Wachala, 49 Ed Dept Rep 31, Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163, Decision No. 15,826; Application of Coleman, 45 id. 282, Decision No. 15,324).  Therefore, I have not considered such articles for the veracity of their content.

Turning to the merits, petitioners contend that the board either contradicted its Education Law §402-a plan or does not have such a plan.  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 Herrala, 50 Ed Dept Rep, Decision No. 16,264; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeals of Andrews, et al., 45 id. 248, Decision No. 15,312).  The decision to establish an advisory committee rests solely with the board (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  When such a committee is established, the statute requires preparation of an educational impact statement that considers certain factors, notice and a public hearing (Education Law §402-a; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).

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).  Petitioners note that respondent established a “Facilities Advisory Committee” in 2008 to consider the district’s facilities options.  However, the superintendent of schools avers that such committee was not a §402-a committee and the copy of the board resolution relating to the Lindley closing that is annexed to the petition does not cite to §402-a.  On the record before me, I cannot conclude that the board formed a §402-a committee and was consequently required to follow the specific mandates of that statute.  Moreover, I note that even if respondent’s committee had been formed pursuant to §402-a, the recommendations of a §402-a committee are advisory only, and the board would not have been required to adhere to the committee’s recommendations (seeAppeals of Andrews, et al., 45 Ed Dept Rep 248, Decision No. 15,312; Appeal of Seligman and Rosenberg, 31 id. 131, Decision No. 12,594).

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).  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).  Accordingly, a board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeal of Fettinger, et al., 47 id. 4, Decision No. 15,604; Appeal of Bailey, et al., 45 id. 270, Decision No. 15,318).

Petitioners have failed to meet their burden of demonstrating that the board’s decision to close Lindley was arbitrary or capricious.  On the contrary, the record reveals that respondent was forced to make difficult decisions regarding the district’s 2010-2011 budget and that prior to voting on the proposed budget, respondent studied cost, capacity, transportation and program impacts of closing any school within the district.  Respondent also considered declining enrollment and an anticipated reduction in state aid in the amount of $3,800,000.  Based on such information, respondent determined that for educational, financial and economic reasons it was no longer able to operate all eight of its elementary schools.  This decision followed public meetings held on March 31, 2010 and April 7, 14 and 28, 2010 at which the need to reduce overall cost to the potential closure of a school building were discussed.  District residents were given the opportunity to provide input at these meetings and the record reflects that the parents of Lindley students were actively involved in the April 28, 2010 meeting.

With respect to the closing of Lindley, respondent’s superintendent avers that respondent considered several factors, including declining enrollment, changes in state funding, the ability of the district to educate students on a more cost effective basis at other facilities and the cost savings that would result without any cuts to the educational programs for the impacted students.  Respondent also considered the fact that Lindley had the lowest enrollment of the district’s eight elementary schools.  Finally, while petitioners contend that the closing of Lindley will not result in cost savings for the district, respondent estimates that closing Lindley would result in an overall savings of $491,415 annually and asserts that the average class size following the consolidation of Lindley and Erwin will be within district class size guidelines.

Petitioners also argue that the conditions agreed to in the foundation grant improperly influenced respondent’s determination of where to cut spending in its budget process.  Petitioners have submitted an April 5, 2010 letter from the foundation’s president to the superintendent stating that release of grant funding in several curriculum areas “is contingent upon the School District demonstrating that adequate professional resources are in place to meet the high standards currently provided by” district staff.  Petitioners maintain that respondent’s spending cuts including the closing of Lindley – “largely exempt[ed] the secondary areas funded by the grant” and maintain that, by accepting the “conditions stated” in the April 5, 2010 letter, “the District surrendered control of a vital budgetary process to an outside entity with interests and obligations....”  However, the record does not support petitioners’ claim.  Education Law §§1709(12) and  2503(1) authorize a city school district to accept gifts and the record contains no evidence that, in accepting the gift to support several areas of the district’s curriculum, the district improperly delegated to the foundation its responsibility for determining whether or not to offer such programs or any control over the manner in which they are to be offered (seeAppeal of DeMasi, et al., 18 Ed Dept Rep 320, Decision No. 9,859).  Moreover, the record indicates that respondent considered closing Lindley in 2008 as part of Alternative C, prior to the 2010 foundation grant.  As a result, I find that petitioners have failed to carry their burden of proof with respect to this claim.

Accordingly, based on the record before me, I cannot conclude that respondent’s decision to close Lindley was arbitrary and capricious.

I have considered the parties’ remaining contentions and find then to be without merit.