Appeal of a STUDENT WITH A DISABILITY and her parent from action of the New York City Department of Education regarding school utilization.

Decision No. 16,881

(February 24, 2016)

Zachary W. Carter, Corporation Counsel, attorney for respondent, Elizabeth Edmonds, 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 (“DOE” or “respondent”) to phase-out and close Legacy High School for Integrated Studies (02M429) (“the Legacy School”) in respondent’s school district.  The appeal must be dismissed.

The record indicates that, during the 2011-2012 school year, the student-petitioner attended the Legacy School as a 19-year-old twelfth-grade student.  The parent-petitioner is her father and a resident of respondent’s district.  During that school year, the Legacy School served students in grades nine through twelve.

In December 2011, DOE issued an Educational Impact Statement (“EIS”) proposing to phase-out and close the Legacy School based on its “poor performance and the DOE’s assessment that the school lacks the capacity to turn around quickly to better support student needs.”  According to the EIS, the Legacy School would begin phasing-out one grade at a time in September 2012 and would complete its phase-out after the 2014-2015 school year.

Subsequently, DOE held a joint public hearing regarding the proposed phase-out with the Legacy School’s Leadership Team and representatives of the District 2 Community Education Council.

In February 2012, DOE published a Public Comment Analysis summarizing the comments received at the joint public hearing and the oral and written comments submitted directly to DOE.  Thereafter, the PEP met and voted to approve the phase-out of the Legacy School.  This appeal ensued.

Petitioners allege that respondent’s decision to phase-out the Legacy School is arbitrary and caprcious and without sufficient review and analysis of its own published reports and documents.  Petitioners maintain that the Legacy School is a pilot which is an example of how a successful school works, and that DOE has committed to using transformation and turnaround models for continuing schools.  As relief, petitioners seek, among other things, an order annulling respondent’s action and keeping the Legacy School open “now and into the future” and an order directing respondent to take certain actions with respect to school closings generally, including constructing a “logical, reasonable and accountable rubric for determining school closings....”

Respondent contends that petitioners lack standing to maintain the appeal and that its decision to phase-out the Legacy School was in all respects proper.

I must first address respondent’s objection to petitioners’ reply.  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.

The appeal must be dismissed for lack of standing.  Standing is a jurisdictional prerequisite to maintaining an appeal pursuant to Education Law §310 (see Education Law §311[3]).  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).  District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797; Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740). 

As noted above, among the relief requested in this appeal, petitioners seek a determination to “keep Legacy open now and into the future” and to impose certain requirements on respondent’s school closing process generally.  To the extent petitioners, as residents of respondent’s district, intend to challenge the decision to close Legacy School generally, they allege no personal injury or injury to their rights in connection with respondent’s decision and therefore lack standing to maintain the appeal (see e.g., Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647; cf., Appeal of LaGrange, 51 id., Decision No. 16,315).

To the extent petitioner’s object to the closure of the Legacy School based on the student-petitioner’s attendance at the school, the appeal must be dismissed for lack of standing and as moot.  The record includes an affidavit from respondent’s attorney explaining that, in September 2012, the student-petitioner transferred from the Legacy School to another school within respondent’s district.  The attorney also states that the student-petitioner “stopped” attending school in February 2014 having reached the age of 21 without obtaining a high school diploma.  Accordingly, because the student-petitioner no longer attends the Legacy School, petitioners no longer have standing to challenge its phase-out and closure (cf., Appeal of Ad Hoc Committee to Save Kings Elementary School, et al., 53 Ed Dept Rep, Decision No. 16,530).  In this regard, I note that the appeal is also moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).

THE APPEAL IS DISMISSED.

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