Appeal of YUDY VALDEZ, individually and as a parent of a student at J.H.S. 52; VICTORIA FRYE, individually and as a member of Community Education Council District 6; and MIRIAM ARISTY-FARER, individually and as President of Community Education Council District 6 from action of the New York City Department of Education regarding school utilization.

Decision No. 16,651

(August 18, 2014)       

Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz and Laura D. Barbieri, Esqs., of counsel

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent New York City Department of Education, Carolyn E. Kruk, Esq., of counsel

 

BERLIN, Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the proposed co-location of a new district high school, 06M211, with existing schools J.H.S. 052 Inwood (06M052) (“Inwood”) and High School for Excellence and Innovation (06M423) (“HSEI”) in building M052 (“M052” or “the building”) beginning in the 2014-2015 school year.  The appeal must be dismissed.

Petitioners, respectively, are a parent who alleges that her child attends Inwood, a member of Community Education Council District 6 (“CEC 6”) and the president of CEC 6.

Respondent proposed to open and co-locate a new district Career and Technical Education[1] (“CTE”)/early college high school, 06M052, in the building, which is located in Community School District 6, beginning in the 2014-2015 school year.  Inwood is a district middle school located in the building that currently serves students in grades six through eight.  Also located in the building is HSEI, which currently serves students in grades nine through twelve, and admits students aged 15 or 16 who are entering high school for the first time and have a record of being held back twice in elementary and/or middle school.  In addition, two community based organizations, Universidad National and Eastside Settlement House, are located in the building.

On September 12, 2013, DOE issued an Educational Impact Statement (“EIS”) pursuant to Education Law §2590-h(2-a) proposing the co-location of 06M211 in the building.  According to the proposal, 06M211 will enroll approximately 75-85 students in the ninth grade in the 2014-2015 school year.  It will add one grade each year until it reaches full scale in 2019-2020, when it will serve approximately 450-510 students in grades nine through fourteen.[2]  The EIS indicates that students in their fifth and sixth years (grades thirteen and fourteen) will spend a majority of their time outside of the building.  On October 8, 2013, a Spanish language version of the EIS was provided to Inwood, HSEI and CEC 6 and was posted on DOE’s website.

On October 22, 2013, a joint public hearing was held.  Approximately 160 people attended the hearing, including members of Inwood’s school leadership team (“SLT”) and members of CEC 6.  On October 29, 2013, DOE prepared 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 October 30, 2013, the Panel for Educational Policy (“PEP”) met and voted to approve the proposal.  This appeal ensued.

Petitioners challenge DOE’s determination to co-locate 06M211 in the building.  They allege that the EIS does not address the special education or English language learner (“ELL”) needs of the building’s existing student population; that the late posting of the EIS in Spanish and the failure to post the Analysis in Spanish violated the regulations of the Chancellor of the City School District of the City of New York (“Chancellor”) and deprived Spanish-speaking parents of meaningful input into the process; that the proposed co-location will overcrowd the building and will not meet the need for additional middle school seats; and that the PEP did not give “reasoned consideration” to the proposal.

Respondent asserts that it substantially complied with the requirements of Education Law §2590-h(2-a) and that petitioners failed to meet their burden of establishing that its decision to co-locate 06M211 in the building was arbitrary and capricious.

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 before the Commissioner be verified.  The petition must 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.  Where a petition is not properly verified, it must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision No. 15,501).[3]

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  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 has the power to establish and maintain such schools or classes as the Chancellor “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 their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  As the Commissioner concluded 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.

An EIS is required to include:

1. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;
2. the impacts of the proposed school closing or significant change in school utilization to any affected students;
3. an outline of any proposed or potential use of the school building for other educational programs or administrative services;
4. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;
5. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;

 

1. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and
2. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status.  Education Law §2590-h(2-a)(b).

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).

Petitioners assert that the EIS does not address the needs of the building’s existing special education and ELL population.  I note that no petitioner alleges that she is the parent of a student with a disability or an ELL student, and consequently, I find that petitioners lack standing to the extent they attempt to raise claims on behalf of such students  (Appeal of McCall, et al., 51 Ed Dept Rep, Decision No. 16,257).  In any event, the EIS indicates that students with disabilities will receive services in accordance with their Individualized Education Programs.  The EIS also indicates that all ELL students will continue to receive appropriate ELL services in future years.  Petitioners have offered no proof to contradict such statements in the EIS or to otherwise demonstrate that students with disabilities and ELL students would be adversely impacted by the use of space as set forth in the EIS (see Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).

Petitioners also allege that DOE did not provide a Spanish language version of the EIS until two weeks before the public hearing.  DOE states in its verified answer that in addition to translating the EIS into Spanish and posting the translated EIS on its website weeks before the October 30, 2013 hearing, it provided a Spanish language version of the EIS to Inwood, HSEI and CEC 6 on October 8, 2013.

Education Law §2590-h(2-a) contains no specific requirement regarding translations of an EIS.  Moreover, as noted above, 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 their comments.  The record indicates that in addition to the comments made at the October 30, 2013 hearing, written and oral comments were submitted directly to DOE.

Petitioners also assert that DOE failed to post a Spanish language translation of the Analysis in violation of the Education Law and Chancellor’s Regulation A-663.  However, there is no specific requirement for the translation of the Analysis in Education Law §2590-g(8)(c), which sets forth the requirements for the Analysis, or in Chancellor’s Regulation A-663.[4]

Based on this record, I find that DOE made any necessary translations available and thereby substantially complied with Education Law §§2590-h(2-a) and 2590-g(8)(c) in this regard (see Appeal of Jackson, et al., 53 Ed Dept Rep, Decision No. 16,573; Appeal of McCall, et al., 51 id., Decision No. 16,257).  Other than their conclusory assertion that the “late posting” of the EIS in Spanish and the failure to post the translated Analysis “deprived Spanish speaking parents of a meaningful input into the process,” petitioners submit no affidavits or other evidence to support their claim.  Indeed, the record indicates that DOE provided sufficient information to inform public comment and, indeed, all three petitioners provided comments.  Accordingly, I find that petitioners have failed to meet their burden with respect to these claims (see Appeal of Jackson, et al., 53 Ed Dept Rep, Decision No. 16,573; Appeal of McCall, et al., 51 id., Decision No. 16,257).

Petitioners also argue that the co-location will overcrowd the school building and will not meet the district’s need for additional middle school seats.  With respect to petitioners’ claim that the co-location will overcrowd the school building, the EIS indicates that according to the 2011-2012 Enrollment, Capacity, Utilization Report (“Blue Book”), building M052 had a target capacity to serve 1,207 students during the 2013-2014 school year and that it served approximately 759 students, yielding a building utilization rate of approximately 63 percent.  The EIS indicates that once the phase-in is complete in the 2019-2020 school year, the estimated building utilization rate will be 97 to 108 percent, which is likely overstated because it includes students in grades thirteen and fourteen who will primarily complete their studies at off-site locations and will only occasionally be in the building.  The EIS further indicates that the utilization rate also overestimates enrollment and utilization in that it presumes that all incoming ninth-grade students will enroll in grades thirteen and fourteen and that DOE expects that utilization in the fifth and sixth years of the proposal will be on the lower end of all projected ranges.  With respect to petitioners’ claim that the co-location will not meet the school district’s need for additional middle school seats, other than speculative assertions, petitioners have not demonstrated that the district has a need for additional middle school seats or how the co-location would affect opportunities to expand the number of middle school seats.  Petitioners offer no support for these claims, and I therefore find that they have failed to carry their burden with respect to these claims.

Nor do petitioners offer support for their conclusory assertion that the PEP did not give “reasoned consideration” to the co-location proposal.  While petitioners may disagree with DOE’s decision, on the record before me, I cannot conclude that they have carried their burden of establishing that respondent violated any specific provision of law or regulation or that respondent acted arbitrarily or capriciously.

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

THE APPEAL IS DISMISSED.

END OF FILE