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Decision No. 16,420

Appeal of MONIQUE SMALL, on behalf of her children DANIELLE and DARRYL BARNES; LYSTRA BURNETT, on behalf of her son MIKAEL; TRACEY EASTON, on behalf of her child NAJEE SCOTT; DELMA FOWLES, on behalf of her daughter KAYLA QUINTON; PATRICIA GRAHAM, on behalf of her son ELIJAH; LYNETTE KING, on behalf of her son MILES BROOKS; and DELLA MCPHERSON, on behalf of her child ROCHAE MCPHERSON JOSEPH, from action of the New York City Department of Education regarding school utilization.

Decision No. 16,420

(October 5, 2012)

Edward Rodriguez, Esq., attorney for petitioners

Michael A. Cardozo, Corporation Counsel, attorney for respondent, Mark Galen Toews, Esq., of counsel

KING, JR., Commissioner.--Petitioners challenge the February 9, 2012 vote and resolution of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“DOE”) to phase out and close Satellite Three Middle School (“13K103” or “Satellite III”).  The appeal must be dismissed.

Petitioners are parents of students who attended Satellite III during the 2011-2012 school year as seventh and eighth grade students.  At that time, Satellite III served students in grades six through eight who had been admitted through the District 13 Middle School Choice Process.  Satellite III is co-located in building K056 with three other schools.[1]  Petitioners Small and Graham are also members of the School Leadership Team (“SLT”) and serve as recording secretary and treasurer, respectively, of the school’s parent-teacher association (“PTA”).

Education Law §2590-h(2-a) was added in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a) requires the Chancellor of the City School District of the City of New York (“Chancellor”) to prepare an Educational Impact Statement (“EIS”) for any proposed school closing or “significant change in school utilization,” including a phase-out, for any public school located within the City School District.

On December 19, 2011, DOE published an EIS proposing to phase-out and close Satellite III “because of its low performance and its inability to turn around quickly to better support student needs.”  DOE proposed to cease admission of sixth grade students after the 2011-2012 school year, phase out another grade over each of the next two years, and close at the end of June 2014 (“the proposal”).

On January 12, 2012, DOE published an amended EIS that corrected “typographical errors and provided updated information to everyone about District 13 middle schools and capacity.”  On January 19, 2012, a joint public hearing was held pursuant to Education Law §2590-h(2-a)(d) regarding the proposal.  Approximately 220 people attended, including members of the DOE Community Education Council 13 (“CEC”) and the SLT.  At the hearing, DOE’s deputy chancellor presented data regarding Satellite III’s performance, including that the school had “earned an overall D rating on its 2010-2011 progress report, including D grades for student progress, student performance and school environment.”  She also stated that “[l]ow performance at Satellite Three has been a consistent trend.”  The public, including petitioners and several elected officials, had an opportunity to comment at the hearing.  Among other things, commenters asserted that DOE’s proposal was arbitrary and requested more time to turn around the school’s performance under a new principal.  Following the hearing, DOE prepared an Amended Public Comment Analysis (“Analysis”), including a summary of the comments received at the joint public hearing.  The PEP voted to approve the proposal on February 9, 2012.  This appeal ensued.

Petitioners assert that DOE’s decision to phase-out and close Satellite III was arbitrary, capricious and irrational because DOE failed to fairly evaluate the ability of the school to progress and failed to assume responsibility for the school’s declining performance caused by its assignment in 2010 of an interim principal who lacked the skills and inclination to help the school improve its performance.  Petitioners argue that the school community should be given “an opportunity to correct the errors caused by the DOE’s careless stewardship” especially since on at least one other occasion, DOE withdrew its proposal to close a school for similar reasons.  They state that, according to the State Education Department’s (“SED”) Accountability and Overview Report, for the previous three school years Satellite III made adequate yearly progress (“AYP”) with all its students in English Language Arts (“ELA”), math and science, effectively supported its black and economically disadvantaged students to make AYP in ELA and math, and, for two of those years, the school was also considered in good standing in ELA, math and science and received “proficient” overall evaluations from DOE.

Petitioners also assert that the PEP’s vote and resolution are flawed and based on an incomplete record because DOE failed to issue the Analysis prior to the PEP’s vote in violation of the Education Law.  Specifically, they claim that DOE issued the Analysis on February 9, 2012, the same date as the hearing, thus depriving petitioners of the opportunity to review and correct the record.[2]  They also claim that the Analysis failed to address comments at the hearing from Satellite III’s former principal.  Petitioners seek annulment of the PEP’s vote.

Respondent asserts that its actions were in compliance with the law and were not arbitrary or capricious.  Respondent argues that it has broad discretion when making recommendations regarding school phase-outs and closures.  It asserts that Satellite III met DOE’s criteria to be considered for possible phase-out and that it proposed the phase-out and closure only after a comprehensive review.  Respondent contends that petitioners failed to dispute the data in the EIS and asserts that DOE fully complied with the required notice and comment procedures in the Education Law by posting the Analysis on its website on February 8, 2012, the day prior to the PEP vote.  It also asserts that the Analysis addressed the issues raised by the former principal.  Alternatively, to the extent there were errors in the Analysis, respondent asserts that they constituted harmless error.

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 (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850).  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; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  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 Wong, et al., 42 id. 269, Decision No. 14,850).  Moreover, pursuant to Education Law §§2590-h(17) and 2554(9), in respondent’s district the Chancellor has the power to establish and maintain such schools or classes that he “shall deem necessary to meet the needs and demands of the city” (seeAppeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515).

As noted above, Education Law §2590-h(2-a) requires the Chancellor to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District.  The purpose of requiring that an EIS be created in such circumstances is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  As the Commissioner concluded in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review under Education Law §2590-h(2-a) is substantial compliance.

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 have failed to meet their burden of proof.  Notably, petitioners do not allege that the EIS is deficient or fails to include any of the statutorily required elements.  Rather, they allege that DOE’s determination to phase-out and close the school was arbitrary, capricious and irrational because it did not fairly evaluate the school’s progress, did not take responsibility for DOE’s role in the school’s low performance, and declined to reverse its determination even though it had done so in at least one other instance.  I disagree.

Petitioners assert that Satellite III was rated “proficient” for the 2007-2008 through 2009-2010 school years, and that, based on its performance, it has “demonstrated the capacity to serve the needs of students of all abilities and income backgrounds.”  Respondent acknowledges that Satellite III received proficient ratings, but also asserts in the EIS and Analysis that it earned an overall “D” grade on its 2010-2011 Progress Report and has steadily declined over time:  in 2008-2009, although it received a “B” grade, 84% of the city’s elementary/middle schools received an “A;” and in 2009-2010 its grade declined to a “C.”  DOE explains in the Analysis that this “C” in 2009-2010 ranked Satellite III in the bottom 1% of all middle schools in District 13 and the bottom 32% of all middle schools citywide.  Respondent further asserts that low student performance at Satellite III has been a persistent trend and provides additional data supporting that assertion.

Moreover, the EIS explains DOE’s decision-making process and notes that, while a school’s “Progress Report and Quality Review may initially suggest a school should be considered for intervention ... no single criterion leads to a phase-out decision.  To identify the appropriate action that will best serve the community, the DOE reviews school data, consults with superintendents and other experienced educators who have worked closely with the school, as well as gathers community feedback.”  Accordingly, the EIS explains that, in addition to various aspects of Satellite III’s “steadily declin[ing] performance,” DOE also considered factors such as school safety, attendance, demand for seats and community feedback.

Respondent further acknowledged that the school underwent leadership changes but noted that the school was also provided with “comprehensive, school specific supports,” yet still failed to improve.  While petitioners assert that lack of stable leadership and respondent’s failure to provide adequate financial support for the prior three years caused the decline in Satellite III’s performance, they have not demonstrated that respondent abused its discretion in deciding to close the school based on the school’s declining performance over a period of years, in addition to other factors.  I note that the Analysis was 12 pages long and comprehensively addressed performance issues at the school and the comments raised at the public hearing.  Accordingly, on the record before me, while petitioners disagree with the outcome, I cannot conclude that they have carried their burden of establishing that respondent abused its discretion or otherwise acted in an arbitrary, capricious and irrational manner.

Petitioners also assert that respondent failed to comply with the notice and filing requirements of Education Law §2590-g(8)(c) because it failed to issue the Analysis 24 hours before the PEP vote.  Petitioners’ assertion is without merit.  First, Education Law §2590-g(8)(c) requires that “[f]ollowing the public review process ... but prior to voting” on a proposed school closing or significant change in school utilization, respondent “shall make available to the public, including via the city board’s official internet web site, an assessment of all public comments concerning the item under consideration received prior to twenty-four hours before the city board meeting at which such item is subject to a vote.”  The record shows that DOE issued its Analysis on its web site on February 8, 2012, the day before the scheduled meeting, and therefore complied with the statute.  Moreover, the record further reveals that respondent then amended its Analysis to include the PTA letter even though it was not received until 6:55 p.m. on February 8, 2012, after the close of the comment period.  It is thus the amended version of the Analysis that respondent issued on February 9, 2012.  Accordingly, on the record before me, I find that DOE substantially complied with the statute’s notice and filing requirements.

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



[1] The other schools located in building K056 are 75K369 (“P369K@I103 Satellite III”), a District 75 inclusion program for students in grades six through eight; 75K369 (”P369K@P056”), a District 75 inclusion program for students in grades kindergarten through five; and 13K056 Lewis L. Latimer (“P.S.56”), an existing zoned elementary school serving grades kindergarten through five, with a pre-K program.

[2] Satellite III’s Parent Teacher Association (“PTA”) wrote to the Chancellor on February 8, 2012, requesting reconsideration of the proposal.  The letter also presented arguments to refute the EIS, stating, among other things, that the school had deteriorated under the interim principal appointed by DOE and had effectively been without a full-time, effective principal from May 2010 to September 2011; that DOE had failed to consider the action plan prepared by the principal, teachers, students and parents and had been unresponsive to requests for help; and that the school had not received two consecutive “D” or “F” grades on the annual progress report.