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Decision No. 17,488

Appeal of ASHLEY CALDWELL and LYNSON WILLIS, on behalf of their child B.W., and MELINA VASQUEZ, on behalf of her children M.V., M.M., and A.M., from action of the New York City Department of Education regarding school utilization.

Decision No. 17,488

(August 16, 2018)

Advocates for Justice, attorneys for petitioners, Laura D. Barbieri, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth C. DeGori, Esq., of counsel

ELIA, Commissioner.--Petitioners challenge the vote and resolution of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“NYC DOE” or “respondent”) to close P.S. 92 (12X092) in respondent’s school district.  The appeal must be dismissed. 

Petitioners are parents of children who attended P.S. 92 during the 2017-2018 school year.  P.S. 92 is an elementary school that serves students in kindergarten through grade five and is located in Building X092 (“X092”) in Community School District 12 in the Bronx.

On January 5, 2018, NYC DOE issued an Educational Impact Statement (“EIS”) proposing to close P.S. 92.  The EIS indicated that P.S. 92 was previously designated as a “Renewal School,” which had demonstrated low academic achievement in the 2011-2012, 2012-2013, and 2013-2014 school years, among other criteria.  The record indicates that through this program, struggling schools receive guidance on the progress they need to make, as well as intensive resources and supports to make sustainable improvements to ensure that every student receives a high-quality education and graduates college and career-ready.  The EIS noted that “P.S. 92 has received resources aimed at increasing student achievement and improving school climate, including:  [n]ew classroom curricula, individual mentoring and tutoring services.”  However, the EIS stated that although P.S. 92 had improved in some areas, “student proficiency rates in English Language Arts (ELA) and math have remained persistently low and are below citywide and district averages.”  The EIS “Rationale for Closure” indicated that P.S. 92 “did not make sufficient improvement as a result of these additional supports,” and provided as follows: 

P.S. 92 has struggled with low academic performance despite prior interventions, such as programmatic changes at the school, including its designation as a Renewal School.  Despite some gains, ELA and math proficiency rates are still below district average and far below the citywide average, and more than half of P.S. 92 students remain at a Level 1 in ELA and math proficiency.  In 2016-2017, approximately 11% of students at P.S. 92 were proficient in ELA, compared to approximately 20% in District 12 and 41% citywide.  In math, approximately 12% of students were proficient, compared to 14% district-wide and 38% citywide.

P.S. 92 has also seen a decline in enrollment, with overall enrollment down by approximately 18% over the past five years.  During the 2012-2013 school year, P.S. 92 served 513 students in grades K-5 grade [sic] and pre-K.  During the current 2017-2018 school year, P.S. 92 serves 422 students.

According to the EIS, “P.S. 92 will no longer exist as an elementary school option beginning in the 2018-2019 school year.” 

Subsequently, on February 7, 2018, NYC DOE held a joint public hearing regarding the proposed closure.  Approximately 135 members of the public attended and 28 people spoke.  Additionally, a NYC DOE Deputy Chancellor, the Community School District 12 Superintendent, P.S. 92 School Leadership Team members, as well as the President and a member of Community Education Council 12 made statements. 

On February 27, 2018, NYC DOE published a Public Comment Analysis summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to NYC DOE.  Thereafter, on February 28, 2018, the PEP met and voted to approve the closing of P.S. 92.  This appeal ensued.  Petitioners’ request for interim relief was denied on April 11, 2018.

Petitioners assert that they were not given sufficient information or allowed to participate in the discussion regarding closure of P.S. 92; that Community School District 12 will not be able to accommodate the students from P.S. 92; that they were not provided transparency, communication, or an opportunity for involvement; and that the public comment process violated the Renewal School Comprehensive Plan and the provisions of 20 U.S.C. §6318(b).  Petitioner seeks to permanently enjoin respondent from closing P.S. 92.

Respondent contends that the appeal must be dismissed for lack of proper verification and maintains that its decision to close P.S. 92 was in all respects proper.

The petition must be dismissed for lack of 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., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501).  Section 275.5 of the Commissioner’s regulations requires that the petition be verified by the oath of at least one of the petitioners. Here, none of the petitioners verified the petition. Instead, the verification is signed by petitioners’ counsel, Arthur Schwartz, who indicated in his verification that he verified the petition instead of one of the petitioners because the petitioners “all reside in counties other than New York County, where my office is located.” Mr. Schwartz is not a petitioner, and therefore, his verification is improper and the appeal must be dismissed (see Appeal of Acosta, 54 Ed Dept Rep, Decision No. 16,782; Appeal of Valdez, 54 id., Decision No. 16,651).

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