Appeal of AD HOC COMMITTEE TO SAVE KINGS ELEMENTARY SCHOOL and DANIEL JACKSON as representative parent, from action of the Board of Education of the Warwick Valley Central School District regarding a school closing.

Decision No. 16,530

(August 28, 2013)

Sussman & Watkins, attorneys for petitioners, Michael H. Sussman, Esq., of counsel

Girvin & Ferlazzo, P.C., attorneys for respondent, Kristine Amodeo Lanchantin, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners challenge the decision of the Board of Education of the Warwick Valley Central School District ("respondent") to close an elementary school. The appeal must be dismissed.

On March 18, 2013, respondent voted to close its Kings Elementary School ("Kings School"). This appeal ensued. Petitioners’ request for interim relief was denied on May15, 2013.

Petitioners contend that respondent’s decision was arbitrary, capricious, irrational and lacks a sound educational basis.

Respondent denies petitioners' allegations and contends that the appeal must be dismissed for improper verification of the petition, lack of standing, failure to state a claim upon which relief may be granted, and failure to state a clear legal right to the relief requested.

I will first address several procedural issues. Respondent alleges that the petition lacks proper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46id. 260, Decision 15,501). It appears from the record that petitioner initially submitted a petition dated April 10,2013, which included a proper verification of petitioner Daniel Jackson sworn to on April 10, 2013. However, my Office of Counsel rejected the petition for failure to contain the notice required by Commissioner's regulations§§275.11 and 276.1. Petitioners subsequently submitted a petition dated April 22, 2013, which complied with the notice requirements and which included the same verification included with the April 10, 2013 petition. Respondent contends that petitioners’ verification is defective since it was intended and in fact served to verify the original April 10, 2013 petition and that petitioners have failed to submit a new verification attesting to the contents and signature of the April 22,2013 petition. However, the only difference between the two petitions is the inclusion of the notices required by Commissioner’s regulations §§275.11 and 276.1 in the subsequent petition and the factual statements and allegations in the two petitions are the same. Under these circumstances, and in the absence of any demonstrable prejudice to respondent, I therefore decline to dismiss the petition for improper verification.

Petitioners have submitted for consideration in this appeal an "Affirmation in Further Support of the Petition “from petitioners’ attorney with attached exhibits. Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5). While this provision permits the submission of additional evidence, it cannot be used to add new claims against a respondent for which notice has not been provided (Appeals of Gonzalez, 48 Ed Dept Rep 405, Decision No. 15,898; Appeal of Marquette, etal., 48 id. 193, Decision No. 15,833). I will not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal (Appeals of Gonzalez, 48 Ed Dept Rep 405,Decision No. 15,898; Appeal of Marquette, et al., 48 id. 193, Decision No. 15,833). While much of the affirmation and exhibits appear to address the affidavit of respondent's superintendent of schools submitted with respondent's answer, I note that the affirmation also introduces new issues and new exhibits not originally raised in the appeal. Accordingly, pursuant to the authority granted by §276.5 of the Commissioner’s regulations, while I have accepted petitioners’ additional affirmation and exhibits, I have not considered those portions that serve to buttress allegations in the petition and to add new claims.

Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4) and may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Valazquez, 52 Ed Dept Rep, Decision No. 16,474; Appeal of Bruning and Coburn-Bruning, 48 id. 84, Decision No. 15,799; Appeal of Wright, 47 id. 202,Decision No. 15,668). Petitioners’ memorandum of law includes new factual assertions that are not part of the verified petition they submitted. Therefore, while I have reviewed petitioners’ memorandum, I have not considered those portions containing new allegations that are not set forth in their verified petition.

In addition, the petition includes as exhibits several newspaper articles. It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein (Appeal of Parris, 51 Ed Dept Rep, Decision No. 16,261; Appeal of Wachala, 49 id. 31,Decision No. 15,950; Appeal of Levens-Freeman, 48 id. 163,Decision No. 15,826). Therefore, I have not considered such articles for the veracity of their content.

Respondent contends that the petition should be dismissed for lack of standing. In the caption of the petition, the petitioners are named as "Ad Hoc Committee to Save Kings Elementary Schools, Daniel Jackson, as Representative Parent." The record contains no evidence that the Ad Hoc Committee is incorporated. It is described in the petition as “... an organization comprised of several hundred parents who have joined together since March 18, 2013 to challenge the decision made that day by respondent, Warwick Valley Central School District ... acting through its Board of Education, to close Kings Elementary School." Accordingly, to the extent petitioners intend to bring this appeal as an unincorporated association or petitioner Jackson intends to bring this appeal as an individual representative of an unincorporated association, petitioners lack standing to do so and the petition must be dismissed to that extent Appeal of LaGrange, 51 Ed Dept Rep, Decision No. 16,315; Appeal of Torres, 46 Ed Dept Rep 301, Decision No. 15,515; Appeal ofRusso, 46 id. 266, Decision No. 15,504).

An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson,47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). The petition asserts, and respondent does not refute, that petitioner Jackson is the parent of a child attending Kings School. Therefore, I find this sufficient to confer standing on him to bring this appeal to challenge respondent's decision to close the school.

Turning to the merits, 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 Rep523, 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 allege that respondent ignored the recommendation of its superintendent of schools, made at a March 4, 2013 board meeting, that Park Avenue Elementary School ("Park School") be closed instead of Kings School; that respondent failed to refute the reasons cited by the superintendent in recommending that Park School be closed; and that respondent based its decision to close Kings School on “frivolous” reasons that are arbitrary, capricious, irrational and provide no sound educational basis for closure. Petitioners submit as an exhibit "An Open Letter To The Community" from the president of the board of education, which was posted on respondent’s website shortly after the March 18, 2013 board vote to close Kings School, and which petitioners allege gives frivolous reasons for the board's decision, to wit: that Park School is closer to the public library and certain unnamed museums in the Village of Warwick, and that closing Park School would be deleterious to the downtown business district. Petitioners also submit the affidavit of a former school superintendent, who petitioners characterize as an "expert" and who concludes that the above reasons are arbitrary, capricious and provide no sound educational basis for the board's decision.

Decisions about school district reorganization and the closing of school buildings are within the discretion of aboard 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; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194). Pursuant to Education Law §§1709(3), (33) and 1804(1), 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., 42Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, etal., 39 id. 135, Decision No. 14,194). A board’s decision to reorganize its schools will not be overturned unless itis arbitrary, capricious or contrary to sound educational policy (Appeal of Wong, et al., 42 Ed Dept Rep 269,Decision No. 14,850; Appeal of Patashnick, 39 id. 236,Decision No. 14,225; Appeal of Malone, et al., 39 id. 135,Decision No. 14,194). Accordingly, respondent was under no obligation to accept the March 4, 2013 recommendation of its superintendent that Park School be closed instead of Kings School. In any event, respondent has submitted an affidavit from its superintendent, who states that there are plusses and minuses for closing either Park School or Kings School, but overall, the educational and fiscal impact is basically equal or neutral, and that although Kings School is in a newer building, all buildings in the district are well maintained and sound learning facilities.

I also note that the "Open Letter" of the board president provides a more nuanced explanation regarding respondent’s reasons for closing Kings School than petitioners’ characterization suggests. The letter states that due to declining enrollment combined with the State-imposed tax levy limit, the board voted to reduce the number of schools in the district from five to four; that in the end there were two buildings under consideration for closing - Park School and Kings School; that each building option had plusses and minuses, but with the declining enrollment combined with unusually low kindergarten enrollment, the differences between the two buildings became fewer and fewer; and that in the end, the items that “tipped the scale" in favor of closing Kings School were Park School's easy access to the public library, museums and historical buildings; hands-on learning opportunities presented at Park School such as collecting for and delivering to the food pantry located across the street; and that the Kings School building is further from the road, making it less obtrusive as a closed building. Contrary to petitioners’ assertion, the board president’s letter does not mention that closing Park School "would be deleterious to the downtown business district."

The superintendent’s affidavit also notes that keeping Park School open will assist families whose children attend the school, many of whom are non-English speaking and have limited or no access to transportation, and that closing Park School would create a substantial burden on those families. The superintendent states that respondent

considered statements from the community voicing concerns over the closing of English language learner (“ELL”)programs currently conducted at Park School and at a free pre-school for non-English-speaking three-to-five year olds located across the street from Park School, including consideration that many of the children and adults enrolled in the ELL programs live in the Village of Warwick and are without access to transportation, and would have no means to attend these programs if held at another school.

The record reflects that, prior to voting to close Kings School, respondent studied costs, capacity, transportation, program and budgetary impacts. Respondent considered enrollment trends and the ability of the district to accommodate students at both Kings and Park Schools. Respondent also considered the findings of a long-range planning study conducted and updated by the Western Suffolk Board of Cooperative Educational Services Office of School Planning and Research.

Based on the above, respondent's determination to close Kings School is based on findings that the overall educational and fiscal impact of closing either Kings School or Park School is basically equal or neutral; that while Kings School has more classrooms than Park School, this advantage is of lesser importance since both schools have more classrooms than needed and student enrollment is expected to continue to decline; and that, given the equal or neutral educational and fiscal impact of closing either school, the balance was tipped in favor of keeping Park School open, which, being located in the Village of Warwick, is more centrally located and accessible to residents and the community, including those who attend ELL programs conducted at the school for English Language Learners and residents whose primary language is not English. Petitioners’ mere disagreement with respondent’s findings and decision do not provide a basis to overturn respondent’s decision. On the record before me, therefore, I find that respondent’s decision was not irrational, arbitrary, capricious or contrary to sound educational policy.

I have reviewed petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.

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