Decision No. 12,945

(June 9, 1993)

SOBOL, Commissioner.--Petitioner, a resident of the Syosset Central School District, appeals from respondent board's decision to close temporarily its South Grove Elementary School and Annex. The appeal must be dismissed.

Respondent's South Grove Elementary School and Annex are adjacent to a landfill which was operated for many years by the Town of Oyster Bay, until it closed in 1968. During its operating period, the landfill was used for the disposal of household waste, rubbish and industrial waste, including heavy metals, volatile and semi-volatile compounds, waste water treatment sludges and cesspool waste.

After closure, the landfill was placed on the U.S. Environmental Protection Agency's (EPA) superfund list of hazardous waste sites requiring priority remediation. As a result of a proceeding before the EPA and in consultation with the New York State Department of Environmental Conservation, it was determined that remediation of the site would include the installation of a geosynthetic membrane cap over the landfill's surface, followed by long-term inspection, operation and maintenance of the cap, continued air and groundwater monitoring and the monitoring and maintenance of a gas venting system.

In response to expressions of concern from the community, respondent asked several governmental agencies which would have jurisdiction over the capping operation, about the safety of the children, staff and visitors at the South Grove School during the capping operation. The responses received were generally that during the capping operation the risk for both children and adults fell within EPA's acceptable risk range. After reviewing the matter, respondent nevertheless voted to close temporarily its South Grove School during the period that the capping of the landfill would occur. This appeal ensued.

A decision concerning school reorganization and the closing of a school building is within the discretion of the board of education and will not be set aside unless it is shown to lack a rational basis (Matter of Older v. Bd. of Ed., 27 NY2d 333; Matter of DeVito v. Nyquist, 56 AD2d 159, aff'd 43 NY2d 681; Appeal of Capozzoli, 31 Ed Dept Rep 162; Appeal of Restive, 26 id. 504). Petitioner bears the burden of demonstrating clearly that respondent's action is arbitrary, capricious or contrary to sound educational policy (Appeal of Malang, 26 Ed Dept Rep 134; Matter of Lifshey, et al., 19 id. 105).

Petitioner maintains that in light of the fact that respondent has been informed that the risk to children and adults during the capping operation will be within EPA's acceptable risk range, it is unreasonable to close temporarily the South Grove School during that period. Respondent counters that despite such information, it is reasonable to close the school during that period since no person or entity will assure the district that no risk is involved. Respondent points to the fact that during the capping operation, special procedures are needed to protect workers at the site. Respondent further notes that the need for such special procedures indicates that there is a potential for risk during the construction phase of the project. Finally, respondent notes that the New York State Department of Health supports the closing of the school during the construction of the cap. Based on the foregoing, I conclude that petitioner has not met his burden of proving that respondent's decision to close temporarily the South Grove School is arbitrary, capricious or contrary to sound educational policy.

Petitioner also contends that respondent's decision in this matter violates several provisions of the U.S. Constitution. Specifically, petitioner maintains that respondent's decision imposes an unreasonable restriction on the interstate sale of homes in violation of the Commerce Clause (Article 1, section 8) and the Privileges and Immunities Clause (Amendment 14). Petitioner also maintains that he has been denied his right to send his children to South Grove School in violation of due process and equal protection (Amendment 14). Those novel constitutional claims are made in an inappropriate forum. It has been held repeatedly that an appeal to the Commissioner of Education is an inappropriate forum for the litigation of questions of constitutional law which have not been previously subject to judicial interpretation (Appeal of DePasquale, 30 Ed Dept Rep 361; Appeal of DePold, 26 id. 460; Matter of Sepinski, 25 id. 183).

THE APPEAL IS DISMISSED.

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