Decision No. 17,546
Appeal of SHAUNTE WILLIAMS, on behalf of her daughter AHJALAY DUHON, and as president of the Parent Teacher Association at Crotona Academy High School; YADIRA CINTRON; JEFFREY CINTRON; and LAVINDAH HARRISON, from action of the New York City Department of Education and Paul Rotondo, Superintendent, regarding a school closing.
Decision No. 17,546
(December 7, 2018)
Advocates for Justice, attorneys for petitioners, Laura D. Barbieri and Arthur Z. Schwartz, Esqs., of counsel
Zachary W. Carter, Corporation Counsel, attorney for respondents, Ian William Forster, Esq., of counsel
ELIA, Commissioner.--Petitioners challenge the April 25, 2018 determination of the Panel for Education Policy (“PEP”) of the New York City Department of Education (“DOE”) to close Crotona Academy High School (12x321) (“Crotona” or “Crotona Academy”). The appeal must be dismissed.
Petitioners are students and parents of students who attended Crotona Academy, a New York City transfer school, during the 2017-2018 school year. During that school year, Crotona served students in grades 9 through 12 in building X358 (“X358” or “the building”), located in the Bronx. According to the record, transfer schools are small, academically rigorous high schools designed to re-engage students who have dropped out of high school or have fallen behind.
On March 2, 2018, DOE issued an Educational Impact Statement (“EIS”) proposing to close Crotona Academy at the end of the 2017-2018 school year in order to “reduce the amount of excess transfer school seats currently available” in the Bronx. According to the proposal, Crotona was chosen as the transfer school to be closed because “[d]espite prior interventions, Crotona Academy continues to struggle with attendance, absenteeism, and performance.” According to the EIS, if the proposal was approved, Crotona Academy “will no longer exist as a transfer school option beginning in the 2018-2019 school year.” Crotona students who met graduation requirements by the end of the 2017-2018 school year would graduate from Crotona Academy; those students “who [did] not meet graduation requirements will receive individualized enrollment support from the superintendent’s staff, enrollment staff, and guidance counselors, who will help students and families think through the options presented and offer students seats in other transfer schools.”
On April 12, 2018, DOE held a joint public hearing regarding the proposal. Approximately 130 people attended the hearing, including representatives of Crotona Academy and DOE.
On April 24, 2018, DOE published a Public Comment Analysis (“Analysis”) summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to DOE. On April 25, 2018, the PEP met and voted to approve the closure of Crotona Academy. This appeal ensued. Petitioners’ request for interim relief was denied on June 26, 2018.
In this appeal, petitioners challenge DOE’s determination to close Crotona and request an annulment of the PEP vote closing the school. Petitioners also name Paul Rotondo, the Superintendent for Transfer Schools and District 12 (“Superintendent”) as a respondent in the matter (hereinafter, DOE and the Superintendent will be collectively referred to as “respondent”). Respondent contends that it has complied with the Education Law in all respects, that petitioners have not met their burden of proof in demonstrating a clear legal right to the relief sought, and that its determination to close Crotona Academy was within its discretion and was neither arbitrary nor capricious.
I must first address a procedural issue. I note that petitioners submit an extensive reply. In response, respondent submits a memorandum of law objecting to the scope of petitioners’ reply and responding thereto, to which petitioners submit a response memorandum of law (together, petitioners’ reply and memorandum of law shall be referred to as the “reply papers”). 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 Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908). Therefore, while I have reviewed the reply papers, 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. To the extent that respondent’s memorandum of law responds to those portions of petitioners’ reply that are properly before me, I have considered it.
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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).
Petitioners have failed to meet their burden of proof. 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; Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153). Accordingly, a board’s decision to reorganize its schools will not be set aside unless it is arbitrary, capricious, or contrary to sound educational policy (Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850). Further, pursuant to Education Law §§2590-h(17) and 2554(9), in respondent’s district, the Chancellor of the City School District of the City of New York (“Chancellor”) has the power to establish and maintain such schools or classes that he or she “shall deem necessary to meet the needs and demands of the city” (see Appeal of Small, et al., 52 Ed Dept Rep, Decision No. 16,420; Appeal of Torres, 46 id. 301, Decision No. 15,515).
In addition, 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 prior to a significant change in school utilization is to provide sufficient information to the public to inform its comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). Education Law §2590-h(2-a)(b) outlines the required information to be contained in an EIS. As discussed 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.
Notably, petitioners do not allege that the EIS is deficient or that it fails to include any of the statutorily required elements. Rather, they allege that respondent’s determination to close Crotona Academy was arbitrary, capricious, and irrational for the following reasons: because it was “left entirely to the discretion” of the Superintendent; because the Superintendent and the PEP lacked accurate information when they made the decision to close Crotona Academy; and because the decision did not fairly evaluate or take into account Crotona Academy’s performance as compared to a “number of other transfer high schools in comparison.”
As a general proposition, petitioners point out that, for the previous five years, Crotona Academy’s accountability status under the State accountability system was in Good Standing, while several other transfer schools in the Bronx were identified as Focus or Priority Schools. However, while a school’s accountability status as a school in Good Standing would prevent the State from requiring its closure, it does not foreclose the possibility that a local school district such as respondent could direct closure of such a school for other valid reasons. The converse is also true. School closure decisions are complex and require a holistic analysis of the school’s performance. The existence of other transfer schools in the district that have a lesser accountability status for purposes of State accountability does not foreclose the possibility that valid reasons exist for closing a school that has a Good Standing designation (cf. Appeal of Breslow, et al., 56 Ed Dept Rep, Decision No. 17,080 [upholding the closure of Blue Ribbon school based on impact on greater number of students and a more central location than another school]).
Respondent acknowledges that Crotona received the Good Standing designations, but also asserts, in the EIS and the Analysis, as well as in its answer and reply, that DOE’s determination to close Crotona Academy was made “on a case-by-case basis and based on a holistic assessment ....” In other words, as stated in the Superintendent’s affidavit, the proposal to close Crotona Academy at the end of the 2017-2018 school year was based on the “collective judgment ... that Crotona has been struggling to a significant degree and, in fact, is unlikely to improve its performance in the near term ....” The Superintendent attests in his affidavit that other Bronx transfer schools under his jurisdiction had shown improvement, while Crotona had not.
Moreover, 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 or to be contrary to sound educational policy (Appeal of Kaufmann, et al., 57 Ed Dept Rep, Decision No. 17,250; Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 id. 269, 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). Accordingly, the issue before me in this appeal is whether petitioners have proven that the decision to close Crotona Academy lacked a rational basis or was contrary to sound educational policy, and not whether respondent could have chosen to close other transfer schools in the Bronx or elsewhere based on their poor performance. If closure of Crotona is justified on this record, the fact that other transfer schools in the Bronx or citywide demonstrated similar or even poorer performance on various indicators does not establish that the decision to close Crotona Academy was arbitrary and capricious or contrary to sound educational policy.
Petitioners allege that respondent’s decision to close Crotona Academy was arbitrary and capricious because it was made unilaterally by the Superintendent. Petitioners have not provided any proof that the Superintendent unilaterally made the decision to close Crotona Academy, and the Superintendent attests in an affidavit that he lacks authority to make such a unilateral determination and that he, his staff, and his supervisors:
routinely engage in performance reviews of schools within our purview, and we work in a collaborative manner with these schools to address and support needed improvements. When we are prepared to make recommendations about the future of a school, that recommendation is made to DOE senior leadership, and ultimately the Chancellor. If the recommendation is approved at this stage, the public notification and engagement process will be initiated, and ultimately the matter will be presented to the PEP for its approval.
In the answer, respondent asserts that the Chancellor made the decision to propose the closure of Crotona Academy to the PEP and the PEP made the final determination to close the school, and petitioners have provided no evidence to contradict such allegations. Even if petitioners established that the initial recommendation to close Crotona was made by the Superintendent, that would not render the final determination arbitrary and capricious.
Petitioners also submitted an affidavit from the principal of Crotona Academy attesting that she received a directive to stop enrolling new students in Crotona in the 2017-2018 school year, causing a decrease in Crotona’s enrollment numbers. Petitioners argue in their memorandum of law that low enrollment was cited as a reason for recommending Crotona’s closure. The EIS does contain Crotona’s enrollment data, as it is required to do under Education Law §2590-h(2-a)(b)(i), but the EIS does not cite decreased enrollment as a basis for closing the school. As respondent notes, Crotona Academy was closed because of issues with attendance, absenteeism, and performance, not enrollment issues.
Petitioners also allege that the parties involved in deciding to close Crotona Academy lacked accurate information about the school. On the contrary, respondent asserts that “PEP members were fully informed and briefed about the proposal prior to the final vote.” As respondent notes, in addition to satisfying the notification and procedural requirements for the closure of a school, DOE also considered the public’s input prior to recommending Crotona Academy’s closure and prior to the PEP vote approving the proposal. More specifically, on March 2, 2018, DOE issued a Notice of the proposed closure of Crotona Academy (“Notice”), as well as the EIS. The Notice informed the public that a joint public hearing would be held on April 12, 2018; it also provided the name and contact information of a DOE representative to whom the public could make written and verbal comments regarding the proposed action. In addition to this, letters were “backpacked” home with Crotona students on or about February 9, 2018, notifying them of the proposed closure. A community meeting was also held on March 1, 2018 to discuss the matter.
Subsequent to the commencement of the public comment process regarding the proposed closure, DOE set up a dedicated phone line and email address to continue to accept comments. The joint public hearing and the PEP meeting were open to the public, and both allowed for an opportunity to comment further. Prior to the PEP meeting, DOE prepared the aforementioned Analysis, which outlined all of the comments received by DOE. The Analysis “received and responded to all the issues raised and the significant alternatives proposed.”
Based on the foregoing, respondent correctly asserts that the proposal and the determination to close Crotona Academy met all requirements set forth in Education Law §2590-h(2-a), as well as Chancellor’s regulation A-190. Accordingly, petitioners have not met their burden to establish that respondent lacked appropriate information when making its decisions regarding Crotona.
Finally, petitioners assert that Crotona was not fairly evaluated by respondent, as compared to other transfer schools, prior to the decision to close it. As previously discussed, petitioners note that Crotona was in Good Standing under the State accountability system for the previous five school years and that, based on its performance when compared to other transfer schools in the Bronx which were designated as Priority or Focus, the decision to close Crotona instead of another transfer school in the Bronx was arbitrary. Respondent acknowledges that Crotona received the Good Standing designations, but also asserts, in the EIS and the Analysis, as well as in its answer and reply, that the determination to close Crotona Academy was a “nuanced decision, which necessarily considered a number of factors.” As respondent notes, this decision was made “on a case-by-case basis and based on a holistic assessment ....” In other words, the proposal to close Crotona Academy at the end of the 2017-2018 school year was based on respondent’s determination that Crotona Academy “was less likely than other DOE transfer schools to provide students with an adequate learning environment,” and that “there were other transfer schools in the area that [had] made greater progress than Crotona Academy,” which was supported by “the publically [sic] available data, as well as information gathered during visits to the school by members of the Superintendent’s office.”
Ultimately — and as delineated in the EIS — the rationale behind respondent’s decision to close Crotona was because an excess of available transfer seats in the Bronx required a consolidation of transfer schools, and Crotona Academy was chosen for closure because of its continued attendance and performance issues.
As discussed by the Superintendent in his affidavit, transfer schools are evaluated by comparing them with a “Comparison Group,” which is made up of “students from other schools across the City who were the most similar to the students at the school being evaluated, based on their incoming test scores, disability status, economic need, and over-age status.” The Comparison Group evaluation “provides an estimate of how the students at a given school would have performed if they had attended other schools throughout the City.” For transfer schools, “the Comparison Group also takes into account the year that the student entered the school.”
With respect to Crotona’s attendance issues, respondent states that Crotona’s average end-of-year attendance rate was just above 50 percent, its attendance rate for the 2016-2017 school year was 56.3 percent, and it had a chronic absenteeism rate of over 90 percent. The Superintendent asserts, based on the 2016-2017 School Quality Snapshot for Crotona Academy, that the average change in student attendance for 2016-2017 from the prior year was -14 percent, or 8 percent lower than the Comparison Group’s attendance. Although petitioners assert that Crotona Academy’s most recent year-to-date attendance rate for the 2017-2018 school year showed an improvement of 52.7 percent, respondent correctly notes that this figure was derived from a flawed and inaccurate methodology that adds the monthly amounts by which attendance, as computed by petitioners, increased in the 2017-2018 school year over the corresponding month in the prior school year, rather than comparing the year-to-date attendance rate for 2017-2018 with the year-to-date attendance rate for 2016-2017. Instead, respondent contends that Crotona’s attendance rate in the 2017-2018 school year through March 2018 was 64.1 percent, an improvement upon the 2016-2017 school year by around 7.8 percent.
Petitioners attempt to rebut respondent’s data on attendance through a “Case Study” developed using software from a company named Kinvolved, which concludes that Crotona Academy’s 2017-2018 average year-to-date attendance rate through March 2018 was 63.7 percent, as compared with 60.89 percent for all Bronx transfer schools. The study asserts that Crotona Academy’s attendance rates have increased in 2017-2018, with monthly comparative increases ranging from 4.7 percent to 12.78 percent. Respondent asserts that “Kinvolved is a communication tool by which teachers and administrators can contact parents when a child is not in school, and it is not an attendance tracking device,” and, therefore, it is “not appropriate for [p]etitioners to rely upon Kinvolved to rebut DOE-produced data regarding absenteeism at Crotona Academy.” However, respondent has provided no evidence to corroborate its conclusory allegations about the appropriateness of the use of the Kinvolved program to track attendance. Moreover, Crotona Academy’s 2017-2018 Comprehensive Educational Plan explicitly provides that “KINVOLVE [sic] will be used to track and monitor attendance.” Respondent has provided no explanation of this discrepancy.
On the other hand, petitioners have not established that respondent’s attendance data, or the methodology used to compute it, was in error, or that the Kinvolved computations are reliable and more accurate. Petitioners have not met their burden of proving that respondent’s reliance upon its published attendance data, and the methodology used to compute it, was arbitrary and capricious. The data in Crotona Academy’s School Quality Snapshots for 2014-2015 through 2016-2017 indicate that the school has an attendance problem, with attendance decreasing by 7 percent, 17 percent, and 14 percent, respectively, in such three years. Respondent admits that attendance improved in 2017-2018, but the increase was modest. Even if the Kinvolved case study is accepted, it does not rebut respondent’s data showing extremely low and declining attendance in the three prior school years, nor does it establish that Crotona Academy’s attendance rates radically improved in the 2017-2018 school year, as petitioners contend.
Moreover, other evidence in the record supports a finding that Crotona Academy had a serious attendance problem. First of all, petitioners have not rebutted respondent’s assertion that Crotona has a chronic absenteeism rate of over 90 percent, which is a serious problem for any school. Additionally, the Superintendent attests that a series of site visits conducted on May 22, 2017, February 13, 2018, and May 11, 2018, revealed low attendance. In a June 14, 2017 letter to the Crotona principal, a Principal Leadership Facilitator and Deputy Superintendent (“PLF”) noted that, during his May 22, 2017 site visit, only nine students out of an enrollment of 128 were present, with 27 students out on a field trip, so that the attendance for that day was 23 percent. The Superintendent attests that, on February 13, 2018, the PLF observed only 35 students in classrooms and, on May 11, 2018, the PLF observed an attendance rate of 35 percent.
The school’s attendance rates of 56.3 percent for 2016-2017 and 64.1 percent in 2017-2018 are of serious concern and, on this record, I cannot conclude that it was arbitrary and capricious for respondent to conclude that such rates are unacceptable and a basis for closure of the school, regardless of whether other transfer schools had similar or higher rates.
With respect to Crotona’s performance concerns, respondent asserts that, in 2016-2017, Crotona’s graduation rate was 45 percent, which was down from 63 percent in 2014-2015 and 51 percent in 2015-2016. Respondent further asserts that this placed Crotona Academy in the 27th percentile compared to all other transfer schools citywide. Respondent further asserts that, for those students who graduated in 2016-2017, only 1 percent of graduates were actually considered “college-ready” according to the Transfer School College Readiness Index and that Crotona’s six-month post-secondary enrollment was 23 percent.
Petitioners contend that the Kinvolved case study indicates that Crotona Academy’s 2016-2017 transfer graduation rate, based on a spreadsheet entitled “Transfer High School Data Used for State Accountability,” was 57 percent, while that of all Focus and Priority Schools was 34 percent. However, neither party has provided any explanation of why the “Transfer School Graduation Rate (from PPR)” listed in the spreadsheet for Crotona Academy for 2016-2017 differs so substantially from the 45 percent cited by respondent. It is clear from the record that the 45 percent graduation rate is the rate published by respondent in Crotona Academy’s 2016-2017 School Quality Snapshot and its 2017 School Performance Dashboard. I take administrative notice from the records of the State Education Department (“Department”) that the data submitted by respondent to the Department in conjunction with its 2016-2017 Transfer School Appeals Proposal indicates that Crotona Academy had a Transfer School Graduation Rate of 57 percent, which was the 13th highest rate out of 50 transfer schools. This data is consistent with the spreadsheet submitted by petitioners. Therefore, petitioners have established that there is a discrepancy between the graduation rate for Crotona Academy submitted by respondent for purposes of State accountability and that published in the school’s 2016-2017 School Quality Snapshot and 2017 School Performance Dashboard. However, petitioners have not proven that the 45 percent graduation rate relied upon by respondent was inaccurate or that the methodology used to compute such graduation rate was flawed. On this record, the discrepancy could be attributable to changes in data or to use of a different methodology, and I have no basis for determining whether Crotona Academy’s actual graduation rate for 2016-2017 was the 57 percent reported to the Department or the 45 percent relied upon by respondent.
However, even if I assumed that Crotona Academy’s 2016-2017 graduation rate was 57 percent and that respondent’s computation of a 45 percent graduation rate was in error, petitioners have not rebutted respondent’s contention that only a very low percentage of Crotona Academy’s students graduated college and career ready in 2014-2015, 2015-2016, and 2016-2017. In 2014-2015, Crotona Academy had a College and Career Readiness Index of 1 percent, as compared to 21 percent for the Comparison Group. In 2015-2016, its Index was 0 percent and the Comparison Group’s was 9 percent. In the EIS and the Analysis, respondent asserted that, in 2016-2017, only 1 percent of the students graduated college and career ready. However, the affidavit of the Superintendent, Crotona Academy’s 2016-2017 School Quality Snapshot, and its 2017 School Performance Dashboard each indicate that the College and Career Readiness Index for Crotona was 3 percent in 2016-2017, compared to 10 percent for the Comparison Group. It is reasonable to deem unacceptable a school that has a 63%, 51%, and either a 57% or 45% graduation rate over three school years, but with 0% to 3% of its students graduating college and career ready, particularly when that percentage is substantially lower than the College and Career Readiness Index for comparable students.
Similarly, the uncontroverted data in the record that only 23 percent of the graduates enrolled in a college or other postsecondary program within six months, which appears to be 3 percent below that of the Comparison Group, is another indicator of poor performance. Respondent was not arbitrary or capricious in concluding that the school’s poor performance in preparing students for college and career and in enrolling students in postsecondary programs supports its determination to close the school.
As further explained by the Superintendent in his affidavit, transfer schools are, in part, evaluated using the Framework for Great Schools (“Framework”), which has six “inter-connected elements” that drive school improvement: Rigorous Instruction; Collaborative Teachers; Supportive Environment; Effective School Leadership; Strong Family-Community Ties; and Trust. In five of these six Framework elements, Crotona Academy did not meet expectations in the 2016-2017 school year. Notably, Crotona’s score for the one element for which it was meeting expectations — Collaborative Teachers — decreased from the 2015-2016 school year. In fact, Crotona’s scores in all six Framework elements had decreased from the 2015-2016 school year to the 2016-2017 school year. As the Superintendent notes in his affidavit, of the four transfer schools provided by petitioners as more reasonable for closure than Crotona Academy, two “were not part of [the Superintendent’s] supervised-school list,” and, thus, “the Chancellor and [the Superintendent] did not discuss their potential closure.” The two other transfer schools cited by petitioners “demonstrated certain indicators of improvement and success which Crotona Academy did not.” For example, at the two other transfer schools, one had 2016-2017 Framework scores that met expectations for four of the six elements; the other met expectations for five of the six Framework categories. Notably, in the 2016-2017 school year, for the Framework elements for which the two other transfer schools did not meet expectations, their scores were still higher than what Crotona had received in each respective element.
Accordingly, based on the totality of the evidence in the record before me, I find that respondent had valid educational reasons for closing Crotona Academy based on problems with attendance, absenteeism, and performance. While petitioners disagree with the outcome, they have not carried their burden of establishing that respondent’s determination to close Crotona Academy was arbitrary and capricious or contrary to sound educational policy.
I have considered petitioners’ remaining contentions and find them to be without merit.
THE APPEAL IS DISMISSED.
END OF FILE
 In their reply papers, petitioners assert that respondent has failed to provide certain individualized student support services which had been outlined within the EIS, and submit affidavits in support of this assertion. However, this claim is not germane to the claims in their petition regarding the closure of Crotona and respondent’s reasons for taking such action. Instead, this new allegation addresses subsequent actions by respondent which may be separately appealable, but were not properly raised in the reply and have not been considered in determining the instant appeal.
 I note that by letter from my Office of Counsel dated September 25, 2018, petitioners were directed to submit a missing exhibit from the principal’s affidavit containing an email exchange relating to such directive, as well as a tape recording of the public hearing referenced as an exhibit in the petition, but petitioners have failed to submit the missing exhibits.
 Petitioners also believe that further evidence of the irrationality of respondent’s decision to close Crotona is that DOE plans to “replace [Crotona Academy] with a different transfer school” in the vacated building. However, as pointed out by respondent in its papers, this is not the case: Crotona Academy’s former building will be used to house an Alternative Learning Center which was previously located in Temporary Housing Units.
 The analysis upon which petitioners rely states that the year-to-date increase in attendance rates was 52.57 percent, not 52.7 percent as alleged in the petition.