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Decision No. 17,249

Appeal of ALLISON PULIZZI, EILEEN DOHERTY, JENNIFER BERNSTEIN, ROBERT ARNOLD II and JOSIE MOTT, from action of the Board of Education of the Massapequa Union Free School District, Lucille Iconis as Superintendent and Gary Baldinger as Trustee/Secretary to the Board of Education regarding school reorganization.

Decision No. 17,249

(November 7, 2017)

Guercio & Guercio LLP, attorneys for respondents, Randy Glasser, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the determination of the Board of Education of the Massapequa Union Free School District (“respondent” or “board”) to reorganize the grades in its elementary schools and middle school.  Petitioners seek relief against the board, respondent’s superintendent Lucille Iconis (“respondent Iconis”) and board member Gary Baldinger (“respondent Baldinger”).[1]  The appeal must be dismissed.

Historically, respondent’s elementary schools were organized to serve students in kindergarten through grade six.  However, according to the record, respondent has periodically considered moving the sixth grade program to the district’s middle school.

On October 17, 2013, respondent established an Advisory Task Force on Facilities (“task force”) to: (1) examine the potential implications of declining enrollment in the district; (2) identify prevalent and successful secondary instructional models; and (3) examine the potential implications of reconfiguring the district’s secondary instructional program.  The task force consisted of 30 members representing all aspects of the educational community, including parents, teachers, administrators, board representatives, and representatives from both the local business community and the “community at large.”

After considering several options, on March 12, 2014, the task force recommended a plan to the board which consisted of two phases.  During phase one, the district would move sixth grade students from their respective elementary schools to the district’s middle school.  During phase two, the district would move the ninth grade from the middle school to the high school’s main campus.

On March 25, 2014, the board held a public forum where the public could ask questions about the task force’s recommendations.  At the public forum, the superintendent explained that the district’s then-current population of 7,400 students was projected to fall below 7,000 within two years.  The superintendent identified some of the advantages associated with moving the sixth grade to the middle school, including: (1) the ability to offer Languages Other Than English (“LOTE”); (2) improved access to sports, clubs and exploratory courses for sixth graders; and (3) the expansion of after-school child care.  The superintendent further indicated that, at that time, funding the proposal would require voter approval of a bond. 

On April 3, 2014, the task force’s recommendation to move the sixth grade was discussed again at a regularly scheduled board meeting.  At this meeting, the superintendent stated that, after speaking with members of the community, the consensus was that the community “needed more information” about the proposed reconfiguration.  The board voted to decide whether to accept or reject the task force’s recommendation at its April 24, 2014 board meeting.

At the April 24, 2014 meeting, the superintendent reiterated the recommendations of the task force and outlined some of the advantages associated with the recommendation to move the sixth grade.  In addition to the advantages identified at the March 25, 2014 public forum, the superintendent indicated that support services for students with disabilities could be offered on a push-in instead of a pull-out basis.  The superintendent also explained that LOTE could not currently be offered within the elementary schools due to the respective lengths of the elementary school day (280 minutes) and the middle school day (328 minutes).  The superintendent further addressed concerns as to the effect on students’ social/emotional well-being related to the move and responded to the results of a study critical of educating sixth graders in a middle school.  The superintendent also stated that the move would create vacant classrooms in the district’s elementary schools which would, among other benefits, allow approximately 50-60 students to receive before and after school child care conducted by the YMCA.  The superintendent concluded her remarks by requesting that the board permit the task force to continue studying the issue, stating that in her view, that the community “need[ed] more answers and more time.”  By a vote of 0-3, with two board members abstaining, the board did not accept a resolution accepting the task force’s recommendation.

Thereafter, respondent Baldinger was elected to the board and took office on July 15, 2014.  The following year at the board’s September 17, 2015 meeting, respondent Iconis presented the district’s goals and objectives for the 2015-2016 school year which included: (1) providing multiple opportunities and systematic supports for students to build strong, multifaceted post-secondary credentials; and (2) investigating the most effective and academic and social programmatic configurations that strengthen the K-12 continuum of learning.  Respondent Iconis requested permission to further explore the sixth grade reconfiguration to the middle school.  In a 4-1 vote, the board approved respondent Iconis’ request to further study the issue.

In October 2015, the district initiated a comprehensive analysis of the proposed sixth grade reconfiguration.  The district held parent forums at each of the district’s six elementary schools; conducted three public work sessions (each one focused on one of three themes: social/emotional considerations, instructional program, and financial impact); visited four other “6-8 grade middle school models” in other districts; held approximately ten leadership meetings with its instructional leaders; and solicited input from sixth grade teachers and others at each of its elementary schools.

Upon completion of the study and outreach activities, respondent Iconis presented a report at the board’s February 9, 2016 meeting.  The presentation outlined advantages that would result from the reorganization of grades six through eight in the middle school, including increased instructional time, extra-curricular opportunities, teacher support, improved special education services and availability of space in the elementary schools for before and after school child care.  In addition, funding for the sixth grade reconfiguration would come from cost savings which the district would realize, and would not require a bond, as previously proposed.  The proposal also no longer included moving the ninth grade at that time.  Following the presentation, respondent voted to reconfigure the district’s elementary schools to serve kindergarten through grade five, and to move sixth grade to the middle school beginning in the 2017-2018 school year.[2]  This appeal ensued.  Petitioners’ request for interim relief was denied on March 24, 2016.  Petitioners’ request to reconsider the denial of their request for interim relief was denied on June 14, 2017.

Petitioners contend that the board’s February 9, 2016 determination is arbitrary and capricious.  Specifically, petitioners claim that such proposal was previously rejected by respondent board, is not in furtherance of the board’s goals, has not been determined to be in the social/emotional best interest of the children, will result in unnecessary costs, will jeopardize the 2016-2017 budget, and is against the community’s wishes. 

Petitioners further argue that the reconfiguration plan “was voted down by the Board of Education less than two years ago on April 24, 2014,” and that “no new circumstances” warranted a different result.  They contend that maintaining the sixth grade at the elementary schools has academic and social/emotional benefits which respondent board ignored.  Petitioners additionally argue that the reconfiguration will “unnecessarily” spend “tax dollars/reserve funds” and that the district’s funding plan rested upon “unrealistic assumptions” about the district’s future costs.  Petitioners further assert that while the “original plan” called for the utilization of reserve funds, respondent “just recently discussed allocating 2016-2017 [b]udget dollars” to pay for “the construction of an auxiliary gym.” 

Petitioners also contend that the February 9, 2016 vote did not comply with board policy.  They assert that respondent Baldinger should not have been permitted to vote on the grade reconfiguration resolution because he publicly supported the reconfiguration plan “prior to attending any [board] workshops detailing the proposed reconfiguration” and before he voted on the February 9, 2016 resolution.  Petitioners further contend that respondent Baldinger  had a conflict of interest in that his spouse is a district employee.  Petitioners argue that, consequently, respondent Baldinger’s vote should be considered null and void and the February 9, 2016 vote would, thus, have tied at 2-2 and failed to pass in accordance with board policy, which requires three votes to pass a resolution.  Petitioners seek an order declaring the February 9, 2016 resolution concerning the sixth grade reconfiguration “null and void.”

Respondents assert that the appeal must be dismissed because petitioners lack standing.  Respondents also contend that the appeal must be dismissed as to respondents Iconis and Baldinger for improper service.  Respondents further contend that petitioners’ challenge to the financing of the reconfiguration is moot as the district has not expended any money from its budget regarding the proposed reconfiguration.  Respondents maintain that respondent Baldinger properly voted on the February 9, 2016 resolution.  Finally, respondents contend that petitioners fail to state a claim upon which relief may be granted, that the board’s determination to reconfigure grades in the district’s schools is neither arbitrary nor capricious, has a rational basis and is, in all respects, proper. 

First, I must address several preliminary matters.  Petitioners submitted a reply in this matter.  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).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

In response to the newly-raised allegations in petitioners’ reply, respondents seek permission, pursuant to 8 NYCRR §275.3, to submit a sur-reply.  However, because I have not accepted those portions of petitioners’ reply which attempt to raise assertions that should have been in the petition, it is unnecessary to consider respondent’s sur-reply and, therefore, it has not been accepted.[3]

Next, respondents assert that petitioners lack standing to maintain the appeal.  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, 48 Ed 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). 

Here, petitioners are residents with children attending and entitled to attend the district’s elementary schools.  Three petitioners assert that, as of March 2016, their children attended fourth grade in respondent’s district and petitioners further state in their reply that their children will continue to attend the district’s schools.  These children, then, are among the students who will attend sixth grade during 2017-2018, the school year in which the reorganization will first be implemented.    Therefore, they will be affected by the reconfigurations of the district’s elementary and middle schools.  I find, therefore, that petitioners have standing to pursue this appeal pursuant to Education Law §310 (see e.g. Appeal of Breslow, et al., 56 Ed Dept Rep, Decision No. 17,080; Appeal of Baum, 49 id. 260, Decision No. 16,019; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; cf. Appeal of Buzzard, 54 id., Decision No. 16,653).

Next, respondents argue that petitioners failed to properly effectuate service on respondents Iconis and Baldinger, and that the appeal must be dismissed as against them.  Respondents contend that the affidavits of service submitted with the petition are not substantially in the form prescribed by 8 NYCRR §275.9.  While I agree with respondent board that the language in the affidavits is not identical to the language used in 8 NYCRR §275.9, the regulation requires that the language be “substantially” similar thereto.  Upon review of the affidavits, I find that they identify all material information pertaining to service; namely, a description of the process server (name, over the age of 18 and not a party to the proceeding); the name and title of the individual served; the manner in which service was effectuated (“personally delivered”); the time, date and location of service; and a description of the documents served (cf. Appeal of Rodriguez, 56 Ed Dept Rep, Decision No. 16,971).  Therefore, I find that respondents Iconis and Baldinger were properly served and decline to dismiss the appeal as against them.

Respondents further argue that the petition was not personally served on respondent Baldinger because he did not physically accept the petition from the process server.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of Peterson, 48 Ed Dept Rep 530, Decision No. 15,939; Appeal of Naab, 48 id. 339, Decision No. 15,877).

Here, according to respondents, a process server approached respondent Baldinger at a board meeting on March 8, 2016 and made a statement to the effect of “these are your papers.”  In an affidavit, the process server avers that she then stated “you have been served.”  The process server proceeded to place the notice of petition, petition and exhibits on a desk in front of respondent Baldinger.  Respondent Baldinger then pushed the stack of papers away and sat down at the desk.  Under these circumstances, I find that respondent Baldinger was personally served within the meaning of 8 NYCRR §275.8(a).  Even if the precise nature of the papers was not disclosed to respondent Baldinger, the record reflects that he recognized that papers were being personally delivered to him and that, in response, he pushed the papers away.[4]  I find that, under these facts, petitioners effectuated personal service of on respondent Baldinger and decline to dismiss the appeal as against him on that basis.

Turning to the merits, decisions regarding 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 Ad Hoc Committee to Save Kings Elementary School et al., 53 Ed Dept Rep, Decision No. 16,530; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick and Waters, 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) 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, et al., 39 id. 135, Decision No. 14,194).  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; Appeal of Patashnick and Waters, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

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).

I will first address petitioners’ contention that respondent Baldinger improperly voted on the February 9, 2016 resolution.  Petitioners claim that respondent Baldinger’s vote is improper because on October 30, 2015, while serving as a member of the board of education, he voiced support for the sixth grade reorganization prior to the vote.  The record reflects that respondent Baldinger signed an online petition entitled “Massapequa Residence That [sic] Support the Sixth Grade Reconfiguration.”  Respondent Baldinger avers that he signed this petition as a private citizen, and not in his capacity as a board member.  Petitioners offer no evidence to refute respondent Baldinger’s assertion that he was acting as a private citizen when he signed the online petition.  Similarly, petitioners cite no authority suggesting that, under the circumstances presented here, respondent Baldinger was prohibited by virtue of his position as a member of respondent board, from expressing his personal views on such topics; indeed, there is none (see Appeal of Koehler, 52 Ed Dept Rep, Decision No. 16,373; Application of Vogel, 46 id. 481, Decision No. 15,570).  Therefore, I do not find that respondent Baldinger’s support for the sixth grade reorganization, made in his capacity as a private citizen, rendered his February 9, 2016 vote improper.  To the extent that petitioners claim that respondent Baldinger was not sufficiently informed at the time he signed the online petition, such assertion is not only speculative but is irrelevant.  The pertinent inquiry for purposes of this appeal is whether respondent board’s action on February 9, 2016 was arbitrary, capricious or contrary to sound educational policy as discussed below.

Petitioners also allege that respondent Baldinger had a conflict of interest with respect to the February 9, 2016 reconfiguration resolution because his spouse is a district employee.  Respondents admit that respondent Baldinger’s spouse was, and is, a district employee, but deny that this presented any conflict of interest.[5]  Petitioners fail to allege any facts demonstrating that the employment of respondent Baldinger’s spouse presented a conflict of interest in relation to the February 9, 2016 resolution.  Moreover, General Municipal Law §800(3) explicitly excludes a spouse’s employment contract from coverage under the conflict of interest provisions.  Therefore, petitioners’ contentions in this regard are without merit.

Petitioners have failed to meet their burden to show that respondent’s approval of the sixth grade reconfiguration was arbitrary, capricious or contrary to sound educational policy, as a review of the record reveals a rational basis for the board’s February 9, 2016 action.  As set forth above, the determination to organize the schools of a district and assign students to such schools is within the authority and broad discretion of the board of education (Education Law §1709[33]; Matter of Older et al. v Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333) and the board’s decision will not be overturned unless such board acted arbitrarily, capriciously or in a manner contrary to sound educational policy (Matter of Older et al. v Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 Ed Dept Rep, Decision No. 16,530).  The record here indicates that, after significant study and outreach, respondent board’s February 9, 2016 determination to reconfigure the district’s grades to establish a sixth through eighth grade middle school was intended to:

  • Increase instructional time for sixth graders by 20 percent, allowing them to receive the recommended amount of instruction time in each of their core academic classes, including English Language Arts, science and mathematics;
  • Permit sixth graders to take additional courses such as music, art, consumer sciences, technology education, and health;
  • Allow the district to offer a year-long class called “MS 101” which would teach students organizational and time-management skills;
  • Facilitate push-in special education services and allow for “a greater continuum of special education and related services”;
  • Improve the quality of instruction, as New York State curricula is “written on a 6-8 band,” and the “information presented in sixth grade will drive the instruction in seventh grade”;
  • Allow sixth graders to participate in a wider variety of sports and clubs at the middle school;
  • Group sixth graders with peers who are experiencing similar developmental changes;
  • Allow sixth graders to receive services from one of three guidance counselors, and/or a full-time social worker;[6]
  • Create additional space in the elementary schools which could be used, for example, for science rooms, expansion of the district’s YMCA program, or a pre-kindergarten program; and
  • Facilitate continuity in subject areas by allowing curriculum specific specialists (i.e., middle school teachers) to work alongside elementary generalists.

Petitioners do not establish that the above will not occur as a result of the grade reconfiguration.  Moreover, as detailed above, a 30-person task force explored the possibility of a sixth grade reconfiguration in 2013 and 2014, and the district held myriad meetings and workshops to explore the issue with parents, teachers and administrators throughout 2015 and 2016.  To be sure, the record contains evidence that the community was divided over the reconfiguration, an issue that is, inevitably, a difficult one for communities (see Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817).  Nevertheless, given the extent of the study predating respondent's actions, the record of community involvement in the decision-making process and respondent’s numerous articulated reasons for its action, I find that respondent's determination is entirely reasonable, made after careful consideration of the facts and issues and was not, therefore, arbitrary, capricious or contrary to sound educational policy (see Appeal of Parrish, et al., 32 Ed Dept Rep 261, Decision No. 12,825; Appeal of Mathis and Dalia, 28 id. 347, Decision No. 12,132).

Petitioners, nevertheless, contend that respondent’s determination was arbitrary because they allege that, other than the election of respondent Baldinger to the board, no circumstances had changed between April 2014, when the board determined not to establish a sixth through eighth grade middle school, and February 9, 2016, when the board decided to approve the grade reconfiguration.  Petitioners’ argument is without merit.  Such a “changed circumstances” rule, “whereby a board’s reversal or modification of a previously adopted reorganization plan may be permitted ‘only where it can be demonstrated that such is required by a substantial change in circumstances,’” was rejected in Appeal of Mathis and Dalia, which held that “there is no basis in law to require that a change of circumstance must exist prior to a determination by a board of education to reconfigure a school district’s facilities” (Appeal of Mathis and Dalia, 28 Ed Dept Rep 347, Decision No. 12,132).  Therefore, even assuming, arguendo, that no circumstances had changed, such would not, alone, be grounds to invalidate the board’s action.  Instead, the relevant inquiry when analyzing school reorganization is whether a board has rendered a rational decision that is the result of its collective judgment and deliberation (see e.g. Appeal of Mathis and Dalia, 28 Ed Dept Rep 347, Decision No. 12,132).  To the extent that petitioners argue that, having previously declined to adopt the grade reconfiguration in 2014, the February 9, 2016 determination to do so was made only because a new board member (respondent Baldinger) had since been elected to the board, there is no evidence that respondent acted in such a precipitous manner.  Respondent Baldinger took office in July 2014, and it was not until a year later that respondent board decided to again explore whether to reconfigure the district’s sixth grade and adopt a sixth through eighth grade middle school model.  Upon determining to re-explore that issue in September 2015, the board engaged in numerous public forums, public work sessions, leadership meetings, school visits and teacher consultations before making its February 9, 2016 determination.  Thus, the record contains ample evidence of the thorough deliberative process in which the board engaged, with community involvement, since April 2014, prior to its February 9, 2016 determination.

Petitioners further assert that the sixth graders’ move to the middle school will harm their social/emotional well-being and, thus, is contrary to sound educational policy.  Petitioners submit three academic studies that, they contend, illustrate disadvantages associated with educating sixth graders in a middle school.[7]  The record indicates that two of these three studies, along with several others, were provided to board members prior to the February 9, 2016 vote.

The principal study relied upon by petitioners analyzed data over a one year period of disciplinary incidents in North Carolina’s public schools and concluded that “sixth grade students attending middle school are much more likely to be cited for discipline problems than those attending elementary school.”  While the authors concluded that a “plausible explanation” was that sixth graders’ “exposure to older peers and the relative freedom from supervision [had] deleterious consequences,” the authors also acknowledged that “[t]he causal mechanisms that account for this difference in behavior cannot be identified directly from our data.”  Thus, the study does not, as petitioners argue, unequivocally support the proposition that sixth graders are harmed merely by being educated within a middle school building.

Additionally, respondent Iconis avers that she corresponded with one of the authors of this study, who told her that the student population of the studied district did not resemble the population of respondent’s district.  Based on this dissimilarity, the superintendent reasonably did not deem the study’s conclusions persuasive. 

The second study relied upon by petitioners concluded that “moving students from elementary to middle school in 6th or 7th grade causes significant drops in academic achievement.”  The authors of the study offered “two plausible interpretations” for their conclusion; first, that middle schools are typically larger and host more students “with potentially diverse educational climates”; and, second, that “it may be that any move to a new school has long lasting negative impacts on student achievement.” 

I do not find that this study renders respondent’s decision to reconfigure the sixth grade contrary to sound educational policy for two reasons.  First, the study examined both sixth and seventh graders, and neither party disputes that seventh graders will remain at the district’s middle school irrespective of the outcome of this appeal.  Second, the authors of the study did not reach a definitive conclusion as to what caused the observed “significant drops in academic achievement.”  Indeed, the authors posited that the move itself could be the cause, not any factor that was unique to the sixth grade.

The third study analyzed data from four states (which are not identified in the article or in the record) and concluded that “large” school size produces “significant negative effects ... on student math and reading achievement.”  The study centered on the difference between “small” and “large” schools and, thus, is not directly relevant to the issue of whether a sixth grade classroom should be located within an elementary school or within a middle school.  To the extent petitioners suggest that respondent’s elementary schools are “small” and the middle school is “large,” the study acknowledged that “[t]here is no consensus in the literature on how to define a ‘small’ school.”  Further, the study defined small and large by use of a formula, which was then reflected in several tables that are not reproduced in the version of the article submitted by petitioners.  Therefore, it is impossible to determine whether the district’s elementary and middle schools are “small” or “large,” as defined by the study.  Therefore, the above studies are inapposite and do not provide a sufficient basis upon which to overturn the board’s determination.

Moreover, respondent Iconis avers that she considered multiple studies, publications and research – including two of the three studies submitted by petitioners – in making her recommendation.  The superintendent explicitly identified 12 such studies and avers that she provided each of these studies to respondent for its consideration and review.

Petitioners further object to the financial implications of the reconfiguration.  Petitioner’s claims are unclear, but appear to rely on an assumption that the district’s budget would necessarily include monies to fund the grade reconfiguration and that such inclusion would place the 2016-2017 budget in jeopardy of being rejected.  However, according to respondent’s business administrator, no funds to support the reconfiguration were included in the 2016-2017 budget and the reconfiguration was not scheduled to occur until the 2017-2018 school year.

     I further take judicial notice of the affirmation in support of respondent’s opposition to petitioners’ application for a stay submitted in Appeal of Kaufmann, et al., a pending appeal of subsequent action taken by respondent brought pursuant to Education Law §310 (see 8 NYCRR §276.6).  According to this affirmation, district voters approved a budget in May 2017 that allocated $1.5 million dollars to the costs associated with the sixth grade reconfiguration.  Thus, the eventual allocation of funds was duly authorized by the district’s voters and petitioners’ concerns were not realized.  In any event, I additionally note that, in the instant appeal, respondent’s deputy superintendent and respondent Iconis both aver that (1) the sixth grade reconfiguration will be primarily funded through a “substantial cost savings” which the district realized as a result of the retirement of nineteen teachers and two administrators; and (2) the anticipated tax impact of the reconfiguration was estimated to be fourteen (.14) cents per household during the 2017-2018 school year, with a “nominal increase” in such amount each school year thereafter.  On this record, I find that petitioners have failed to prove any financial impropriety in connection with the sixth grade reconfiguration.

Petitioners additionally contend that the sixth grade reconfiguration should be reversed because it was very unpopular and did not represent the will of the community.  This, however, is not fatal, or even relevant, to the rationality of the board’s decision.  While boards can and should be receptive to concerns of the community, boards must also ensure the well being of their students, which is the paramount duty of boards of education (see Appeal of Jiava, 55 Ed Dept Rep, Decision No. 16,817; Appeal of Voss, 31 Ed Dept Rep 56, 12,567).[8]

Boards of education are tasked with difficult decisions, and “[t]he decision to close a school building or buildings is seldom an easy one” (Appeal of Voss, 31 Ed Dept Rep 56, Decision No. 12,567).  While petitioners and others may disagree with respondents’ sixth grade reconfiguration, it was approved after extensive study and community involvement, and respondent board has articulated a sufficient rational basis for its decision.  Whether this decision is the same decision that I might have made is not the issue.  Based on the record before me, the board acted on the basis of extensive background information, and I cannot say that its decision was arbitrary, capricious or lacked a rational basis.  Therefore, on this record, I find no basis on which to substitute my judgment for that of respondent board.




[1] All references to respondent, if otherwise unattributed, refer to respondent Board of Education.


[2] These resolutions pertaining to the middle school are collectively referred to as the “February 9, 2016 resolution” in this decision.


[3] Additionally, as respondents correctly observe, by letter dated April 25, 2016, I accepted additional evidence and allegations submitted by petitioners pursuant to 8 NYCRR §276.5 relating to January 26 and March 16, 2016 board meetings, as well as respondents’ response thereto, but declined to accept certain other material in petitioner’s §276.5 application.


[4] While Baldinger avers that he “slid [his] chair away from the papers, without touching, opening, and/or looking at them at any time that evening,” petitioners submit a video recording depicting such service that contradicts respondent Baldinger’s account.


[5] Respondent additionally asserts that, though not required to do so, respondent Baldinger abstained from voting on any resolutions concerning his spouse’s appointment as a district employee.


[6] The district states that, at present, “there are no guidance counselors at the Elementary Schools, and only one (1) part-time social worker.”


[7] Petitioners also submit a policy statement from the American Academy of Pediatrics which speaks to the importance of recess and opines that it should “not be withheld for academic or punitive reasons.”  The policy statement does not, however, specifically address the age at which children should or should not have access to recess.


[8] Therefore, the fact that petitioners assembled a citizen petition with over 3,000 signatures is not relevant to the issues raised in this appeal.