Appeal of HOWARD S. BRESLOW, et al.,* from action of the Board of Education of the Half Hollow Hills Central School District regarding a school closing.

Decision No. 17,080

(April 21, 2017)

Frazer and Feldman, LLP, attorneys for respondent, Laura A. Ferrugiari, Esq., of counsel

ELIA, Commissioner.--Petitioners challenge the decision of the Board of Education of the Half Hallow Hills Central School District (“respondent”) to close Forest Park Elementary School (“Forest Park”).  The appeal must be dismissed.

Prior to closing Forest Park, the district was comprised of eleven school buildings: two high schools, two middle schools and seven elementary schools.[1]  As a result of declining enrollment, respondent began a review of its district facilities.  In January 2013, respondent faced a significant budget shortfall for the 2013-2014 school year.

Consequently, respondent engaged the community by holding a series of public forums to address overall district organization, fiscal concerns and declining enrollment.  The first community meeting was held on January 7, 2013 to discuss cost-saving options to address an estimated $6,860,000 budget deficit facing the district for the 2013-2014 school year and to disseminate a 2013-2014 budget survey to solicit community input.  At its regularly scheduled meeting on January 14, 2013, respondent entertained public comment regarding the budget issues and possible school closures. 

On January 28, 2013, a special board meeting was held to present the results of the budget survey.  On February 1, 2013, respondent convened a public budget work session at which it discussed the budget survey, declining enrollment and cost savings options, including possible redistricting.  At its regular February 11, 2013 board meeting, respondent’s superintendent announced certain program cuts but indicated that no school would be closed for the 2013-2014 school year.  The superintendent also announced that respondent would be reviewing an updated demographic report, acknowledged the possibility of redistricting and recommended that a Steering Committee be established to examine options and make recommendations as to how the district should move forward.

In April 2013, respondent engaged Applied Data Services to conduct a demographic study of the district’s current and projected enrollment and a Preliminary Facility Utilization study.

By press release dated April 30, 2013, respondent announced that it was creating a Steering Committee/Facilities Study Subgroup (“Steering Committee”) to plan for efficient facility use in the coming years.  Respondent solicited district residents interested in serving on the Steering Committee from the following categories: administrative representative, teacher representative, PTA council representative, buildings and grounds representative, transportation representative, attendance officer, special education parent representative, business community representative, residents representing each of the district’s eleven school buildings, an educator in the community, and residents from the six towns within the district.  Ultimately, the Steering Committee consisted of 28 members.

The Steering Committee held a total of nine meetings between June 6, 2013 and September 26, 2013, including a public forum on September 12, 2013.  The Steering Committee presented its final report to respondent on September 26, 2013.  The final report recommended closing two elementary school buildings.  The Steering Committee proposed closing either Vanderbilt Elementary School (“Vanderbilt”) or Forest Park and either Chestnut Hill Elementary School (“Chestnut Hill”) or Signal Hill Elementary School (“Signal Hill”).  Following the Steering Committee’s report, respondent held additional special public meetings on October 7, October 21, and October 24, 2013 to discuss the committee’s recommendations, school closures and related issues, as well as to address community concerns surrounding school closings.

At a regularly scheduled board meeting on October 28, 2013, respondent voted to close Chestnut Hill and Forest Park, effective for the 2014-2015 school year.  Thereafter, respondent held further meetings to implement the closure plan and determine feeder patterns in the restructuring process.  This appeal ensued.  Petitioners’ request for interim relief was denied on December 11, 2013.

Petitioners are resident taxpayers and/or parents of students who attend Forest Park Elementary School.  Petitioners allege that respondent board’s decision to close Forest Park was made in bad faith, lacked a rational basis, was arbitrary, capricious, and contrary to sound educational policy.

In support of this claim, petitioners point to several factors which they argue respondent should have considered in determining which, if any, elementary school to close.  Petitioners allege that although respondent asserts that the decision to close Forest Park was made following careful consideration of various factors, including the safety and security of students and to ensure educational excellence, petitioners’ review of the facts warrants a different conclusion. Specifically, petitioners allege that the decision to close Forest Park instead of Vanderbilt was made in bad faith.

Petitioners present the following allegations as evidence that the closure of Forest Park was not made in good faith: Forest Park was the only district school named as a Blue Ribbon School by the United States Department of Education in 2011; Forest Park is the preferred location for first responders; Forest Park provides a more secure playground; Forest Park’s location presents fewer environmental concerns relating to the health of children; enrollment trends identified by the third-party demographer support maintaining Forest Park; closing Forest Park will affect a significant number of students; respondent board disregarded the recommendations of the Steering Committee; respondent board admitted that the closure of Forest Park will not result in cost savings; closing Forest Park will require parents of students who will now attend Vanderbilt Elementary School to violate town parking ordinances; and, contrary to claims by respondent board, current secondary attendance patterns will be impacted.

As relief, petitioners seek an order setting aside the closing of Forest Park, a determination that respondent’s decision to close Forest Park lacked a rational basis, an order directing respondent to establish an advisory committee which would include petitioners to determine an appropriate course of action, and any other relief deemed just and proper.

Respondent alleges that the petition fails to state a claim upon which relief may be granted and that petitioners lack standing to bring this appeal.  Respondent maintains that its decision to close Forest Park was not arbitrary, capricious or contrary to sound educational policy but was, in fact, made in good faith with full transparency and public input, and was based upon careful consideration of the report of the Steering Committee, the demographer, and substantial oral and written public comment.

Respondent contends that its decision to close Forest Park was well within statutory authority entrusted to school boards to make decisions relating to student assignments, as well as the use and reorganization of school facilities.  Specifically, respondent notes that during the 2013-2014 school year, 75 elementary classrooms spread among the district’s seven elementary schools were unused due to declining enrollment, which necessitated the closure of at least one elementary school.  In reviewing the use of facilities, respondent asserts that the discussions were guided by the principles of providing for the safety and security of students; ensuring educational excellence at all levels; improving student transportation efficiencies; balancing elementary enrollment; minimizing the number of students district-wide who would be impacted by the restructuring; and reorganizing to enhance and improve geographic diversity.

Respondent further asserts that each individual board member conducted due diligence before making a decision about which school to close, including making site visits, and studying various potential district restructuring maps.  Respondent contends that the final decision to close Forest Park rather than Vanderbilt was made after reasonably considering a multitude of factors, and was therefore not arbitrary, capricious, or contrary to sound educational policy.

I must first address several procedural issues.  I note that petitioners submit an extensive reply.  In response, respondent submits a sur-reply objecting to the scope of petitioners’ reply and responding thereto.  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.  To the extent that respondent’s sur-reply responds to those portions of petitioners’ reply that are properly before me, I have considered it.

With respect to the issue of petitioners’ standing to maintain the appeal, respondent contends that petitioners failed to properly identify themselves as parents of children who would be aggrieved by the closing of Forest Park and, therefore, lack standing.

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).

Furthermore, although 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), status as a taxpayer and resident of the district is not sufficient in and of itself to confer standing to challenge a school closing (Appeal of Woodward, 36 Ed Dept Rep 445, Decision No. 13,773).  Petitioners do not assert an illegal expenditure of funds or other financial harm as taxpayers with respect to the decision to close Forest Park.

However, in their reply, petitioners affirmatively assert that petitioners Ruth Hyman, Beth Glaser, Tracy Kleinberg, Twila Silverman, Lori Caiazzo, Allison Yaris, Glen Yaris, Suhaila Rashidzada, Timor Rashidzada, Christine Leotta, Anthony Leotta, and Denine Pappania are parents of students from Forest Park.  Therefore, I find that those petitioners have standing to maintain the appeal, and I therefore decline to dismiss the appeal for lack of standing.

To the extent petitioners raise issues relating to the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner (Appeal of McColgan and El-Rez, 48 Ed Dept Rep 493, Decision No. 15,928; Applications and Appeals of Del Río, et al., 48 id. 360, Decision No. 15,886).  Therefore, I have no jurisdiction to address the Open Meetings Law allegations raised by petitioners in this appeal.[2]

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 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 allege that respondent’s decision to close Forest Park was arbitrary, capricious and contrary to sound educational policy because petitioners contend that the closure of Forest Park is unlikely to result in budgetary savings, and because Forest Park presents a safer learning environment.  Furthermore, petitioners allege that the decision to close Forest Park was contrary to the recommendation of the Steering Committee and the demographer’s report prepared by Applied Data Services in August 2013.

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 (Appeal of Ad Hoc Committee to Save Kings Elementary School, 53 Ed Dept Rep 269, Decision No. 16,530; Appeal of Wong, et al., 42 id. 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  Pursuant to Education Law §§1709(3), (33) and 1804(1), a board of education has the authority and responsibility to manage and administer the affairs of the school district, including the assignment of pupils to schools therein. In such cases, a board’s discretion is broad (Matter of Older, et al. v. Bd. of Educ. of Union Free School Dist. No. 1, Town of Mamaroneck, 27 NY2d 333; Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).  A board’s decision to reorganize its schools will not be overturned unless it is arbitrary, capricious or contrary to sound educational policy (Appeal of Wong, et al., 42 Ed Dept Rep 269, Decision No. 14,850; Appeal of Patashnick, 39 id. 236, Decision No. 14,225; Appeal of Malone, et al., 39 id. 135, Decision No. 14,194).

Accordingly, respondent asserts that the decision to close Forest Park was part of a broader restructuring plan within the district which included a comprehensive revision of the district’s elementary attendance zones, and was based on achieving efficiencies and preserving educational excellence district-wide.  Respondent further contends that the decision was informed by the multitude of community forums, the report of the Steering Committee, and the demographer’s report prepared by Applied Data Services.

Additionally, Education Law §402-a is discretionary and identifies factors to be considered by a board only if it chooses to establish an “advisory committee on school building utilization to investigate the educational impact of such a closing” (Education Law §402-a[1]; Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647; Appeal of Lagrange, 51 id., Decision No. 16,315; Appeal of Herrala, 51 id., Decision No. 16,264; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153; Appeals of Andrews, et al., 45 id. 248, Decision No. 15,312).  The decision to establish an advisory committee rests solely with the board (Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  When such a committee is established, the statute requires consideration of certain factors, notice and a public hearing (Education Law §402-a; Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).  However, even where an advisory committee is established, the ultimate decision regarding closure rests with the board (see Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153).

Petitioners contend that respondent’s Steering Committee was in fact an Education Law §402-a committee and therefore required respondent board to consider and rely on the factors set forth in the statute.  However, based on the record before me, there is no indication that respondent affirmatively chose to form a §402-a committee (see Appeal of Ransom, et al., 54 Ed Dept Rep, Decision No. 16,647; Appeal of Lagrange, 51 id., Decision No. 16,315; Appeals of Andrews, et al., 45 id. 248, Decision No. 15,312).

Even assuming that respondent had formed a §402-a committee, on this record, I find that respondent and its Steering Committee did substantially comply with §402-a(2) by considering, in whole or in part, the various factors listed in that statute.  Contrary to petitioners’ argument, even under §402-a, the listed factors are not exclusive since §402-a(2) requires that the factors “shall include, but not be limited to” those enumerated in the statute.  Thus, even if §402-a applied, I would reject petitioners’ arguments that the listed factors form the only basis on which respondent could decide whether to close a school.

Before turning to petitioners’ various arguments that respondent’s decision to close Forest Park was arbitrary and capricious and contrary to sound educational policy, I first note that petitioners do not contest respondent’s decision to close two elementary schools due to declining enrollment.  Indeed, the record indicates that such decision had a rational basis and was not arbitrary or capricious or contrary to sound educational policy.  Instead, petitioners only challenge respondent’s decision to close Forest Park rather than Vanderbilt.

In this regard, the minutes for the October 28, 2013 board meeting at which respondent determined to close Forest Park and Chestnut Hill indicate that respondent’s Board President stated on the record that the Board had formulated six Guiding Principles in reorganizing its schools, namely:

1. Provide for the safety and security of our children.
2. Ensure for the educational excellence at both elementary and secondary levels.
3. Maintain secondary feeder patterns.
4. Correct for outlier communities to improve transportation efficiencies.
5. Balance the enrollment at elementary schools.
6. Minimize student change.

However, such Guiding Principles are generic, and no specific reasons were given for choosing to close Forest Park and Chestnut Hill rather than Vanderbilt and Signal Hill.  In a letter from the Board of Education to the Half Hollow Hills Community dated November 1, 2013, respondent acknowledged that there was no simple solution or obvious choice of which schools to close, indicating that for “every pro for one school, there was an equally compelling pro for the other school” and noting that “every school is comparable as far as facilities and academic excellence.” As to its reasons for selecting Chestnut Hill and Forest Park, respondent explained that in weighing its options:

...the well-being of our children was paramount, and then maintain existing secondary feeder patterns, ensuring equity and fairness in population distribution, ensuring academic excellence, and then doing everything we could to affect as few Half Hollow Hills families as possible.

Petitioners complain that respondent has not stated its specific reasons for deciding to close Forest Park over Vanderbilt and assert that there has been no showing that respondent complied with its own criteria in deciding to close Forest Park.  Petitioners further argue that respondent disregarded the findings of its expert who conducted the demographic study and the findings of its Steering Committee.

I agree with petitioners that respondent has not been as clear and forthright in explaining its reasons for selecting Forest Park for closure as it should have been.  However, school closings are an area in which the board of education has great discretion, and there is no specificity requirement that applies.  Unless petitioners can demonstrate that there was no rational basis for respondent’s decision, I will not substitute my judgment for that of respondent and set aside its decision to close Forest Park.

I also agree with petitioners that not all of respondent’s Guiding Principles are relevant to the decision to select Forest Park for closure over Vanderbilt. Petitioners allege that both Forest Park and Vanderbilt are feeder schools for the same middle school, Candlewood Middle School, and respondent denies that allegation, though it admits that the feeder patterns of the middle schools and high schools have not changed.  At a special board meeting on October 21, 2013, respondent’s board president stated that it was not the board’s intention to change existing secondary school feeder patterns while it was still considering the options proposed by the Steering Committee, and respondent has not argued that Forest Park was selected for closure because it is a feeder school for a different middle school than Vanderbilt.  The Questions and Answers for the January 7, 2013 Community Forum, which were submitted as an exhibit by both parties, indicate that Chestnut Hill students go to West Hollow Middle School and that Vanderbilt and Chestnut Hill are feeder schools for different middle schools.  Since Candlewood is the only other middle school and feeds into High School East, and both Vanderbilt and Forest Park are in close proximity in the northeastern part of the district, I accept petitioners’ allegation that both Vanderbilt and Forest Park are feeder schools for Candlewood Middle School as true, despite respondent’s denial.  Thus, this criterion helps explain why respondent accepted the Steering Committee’s recommendation that one of two pairs of elementary schools be considered for closure, but not its choice of Forest Park over Vanderbilt.  There is also no evidence that Forest Park was chosen based on safety and security issues with that school, or the academic excellence of Vanderbilt, or corrections for outlier communities, or balancing the enrollment at elementary schools.  In addition, while respondent has provided evidence that the closing of two elementary schools will result in approximately $3 million in cost savings, there is no evidence in the record of the differential cost savings of closing Forest Park versus Vanderbilt.  There is also no indication in the November 1, 2013 letter that greater cost savings were the reasons for deciding to close Forest Park rather than Vanderbilt.

However, I do not agree with petitioners that respondent’s decision to close Forest Park conflicts with the demographic study.  In this regard, petitioners point to an email from respondent’s Board President dated October 29, 2013 in which he acknowledges that Vanderbilt had a smaller existing student population than Forest Park but asserts that “if you analyzed the emerging population density ... taken in conjunction with the new demographers report — one would note that both SH and VB both are much closer to the future population densities than the CH and FP respectively.” [sic] Petitioners correctly point out that the demographic study indicates that the enrollment at Forest Park was projected to decrease by 26 percent from 2012-2013 to 2017-2018, while Vanderbilt’s enrollment was projected to decrease by 39 percent over the same period.  This suggests that the population density around Forest Park was greater than that around Vanderbilt, though that of course was based on the attendance zones in existence in 2013.  In fact, one of the considerations cited by the Steering Committee as a reason to close Vanderbilt was the low population density of its surrounding area.  Conversely, one of the reasons for not closing Forest Park was the high population density around it.  However, the November 1, 2013 letter from respondent does not cite population density as a reason for selecting Vanderbilt to remain open over Forest Park and the fact that this one factor appears to favor Forest Park to remain open over Vanderbilt does not mean that respondent acted arbitrarily in not basing its decision on that factor.  The Board President’s October 29, 2013 email, while not a model of clarity, refers to Vanderbilt being closer to “future population densities,” which suggests that he was talking about the relative locations of the two schools and population densities in the district as a whole and not specifically the population density around Vanderbilt and Forest Park.  That is consistent with respondent’s position in this appeal, as I will discuss more fully below.

Similarly, I reject petitioners’ argument that respondent’s decision to close Forest Park conflicts with the recommendations of the Steering Committee.  In its presentation to the board and its written report, the Steering Committee presented the board with four options—closing either Chestnut Hill or Signal Hill and either Vanderbilt or Forest Park.  The Steering Committee suggested potential reasons for closing or not closing each of the four elementary schools, but pointedly refrained from recommending which of the four options respondent should adopt.  Petitioners recognize that the Steering Committee’s role was advisory and that the ultimate decision rests with the board, but argue that because the Steering Committee cited more reasons to close Vanderbilt and more reasons not to close Forest Park, respondent’s decision to close Forest Park is contradicted by the Steering Committee’s recommendations and was arbitrary and capricious.  I disagree.  Respondent was not bound to accept the Steering Committee’s recommendations, and the mere number of reasons cited in favor of closing one school over another is not dispositive.  In the exercise of its broad discretion over school closings, respondent had the authority to decide what weight, if any, to be given to factors that favor closing one school over another.

Petitioners argue extensively that respondent ignored various safety concerns in deciding to close Forest Park.  Petitioners argue that Vanderbilt abuts Route 231 (Deer Park Avenue) a heavily trafficked road with a 40 mile per hour speed limit, while Forest Park is located on a less traveled side street and has a 15 mile per hour speed limit.  They argue, among other things, that its proximity to Route 231, with its 40 mile per hour speed limit, makes Vanderbilt more dangerous to students; that parents could be forced to park on Route 231 to pick up or drop off their children or attend school events; that because of the danger of elopement, autistic children would be placed at risk because of Vanderbilt’s proximity to a busy road; and that Vanderbilt is less accessible to first responders.  In support of their arguments, petitioners rely upon a United States Department of Transportation publication, “Literature Review on Vehicle Travel Speeds and Pedestrian Injuries,” an Illinois Park and Recreation Association publication on playground planning, a study on the impact of elopement of children with autism spectrum disorders, a letter from a physician who is the Director of the Emergency Department at St. Charles Hospital, opinions in a report by a Fire Commissioner from the Coram Fire District, which is outside of respondent’s school district, and an alleged statement by a Fire Commissioner of the Dix Hills Fire District at a PTA meeting held on November 6, 2013.  As respondent contends, however, petitioners have not proven that any of these documents were submitted to respondent for consideration prior to its decision on October 28, 2013, and in fact the letters from the physician and Coram Fire Commissioner are dated in November 2013, after respondent’s decision to close Forest Park.  The PTA meeting of November 6, 2013 also occurred after such decision was made.  Accordingly, respondent’s determination cannot be set aside as arbitrary and capricious based on information that it did not have before it prior to making its decision.  

With the reply, petitioners have attached letters and emails from members of the public that express in general terms concerns about the safety of students based on the traffic on Route 231.  However, respondent asserts that the school district provides transportation to all students without any minimum distance between home and school, that there are no walkers to Vanderbilt and that Vanderbilt has been operating as an elementary school for 47 years and there have been no incidents involving a vehicle striking a student pedestrian at the school for at least 10 years.  With respect to autistic children, respondent asserts that it was not proposing to have a special education class for autistic children sited at Vanderbilt in the 2014-2015 school year and that there have been special education classes for autistic children sited at Vanderbilt within the past 10 years, with no incidents of elopement occurring.  Respondent further asserts that Vanderbilt is sited close to two Dix Hills fire stations (also located on Route 231), that there have been no incidents at Vanderbilt in which first responders have been hindered or prevented from responding safely and expeditiously, and that local fire officials had not expressed any concerns about their ability to protect Vanderbilt prior to the closing of Forest Park.  With respect to the availability of parking spaces, respondent asserts that there is ample parking at Vanderbilt; that Vanderbilt has 134 parking spaces, only five fewer than Forest Park; and that when there were more than 660 students attending Vanderbilt, families parked and attended school events without incident.  On this record, I find that petitioners’ safety concerns are speculative and that petitioners have not met their burden of proving that respondent’s decision to close Forest Park was arbitrary and capricious based on safety concerns with Vanderbilt.

Petitioners also extensively argue that respondent ignored environmental health concerns in deciding to close Forest Park.  In support of these arguments, petitioners rely upon a best practices guide on school closings from the California Department of Education, the United States Environmental Protection Agency’s (EPA) School Siting Guidelines, 11 environmental health studies relating to a possible linkage between exposure of children to air pollution from heavily trafficked roads and increased rates of asthma and other diseases, and letters from two pediatric physicians, dated November 3 and November 6, 2013, that recommend closure of Vanderbilt rather than Forest Park based on the risk of exposure to fumes from passing vehicles.  As with petitioners’ safety concerns, however, petitioners have not proven that any of these documents were submitted to respondent for consideration prior to its decision on October 28, 2013, and the two letters from pediatricians clearly postdate respondent’s decision.  Once again, respondent’s determination cannot be set aside as arbitrary and capricious based on information that was not submitted to it prior to making its decision.

As with the safety issues, with the reply, petitioners have attached letters and emails from the public that express in general terms concerns about exposure of students at Vanderbilt to fumes from traffic on Route 231.  Respondent asserts that Vanderbilt has been operating as an elementary school for 47 years and respondent did not receive complaints about the air quality at Vanderbilt prior to the decision to close Forest Park.  Respondent contends that the EPA’s School Siting Guidelines include a Quick Guide to Environmental Issues that indicates that most studies on traffic and health focus on roads with high levels of traffic of 100,000 average annual daily traffic or higher, while data from the New York State Department of Transportation (DOT) indicates a one-way average annual daily vehicle count on Route 231 of 15,618 and that any impact of such traffic is reduced because students do not attend Vanderbilt during rush hour.  Respondent further points out that at a meeting of the Board on November 18, 2013, the school physician reported on his analysis of the nurse’s logs from Vanderbilt and Forest Park for the period from January 2013 to that date, and concluded that there were no increased health risks at Vanderbilt versus Forest Park.  Respondent asserts that during this period there were 6,079 visits to the school nurse at Forest Park, with 306 related to students with asthma/respiratory issues, 91 of which were for regular visits for preventive asthma medication.  At Vanderbilt, there were 6,827 visits, with 325 related to asthma/respiratory issues, of which 140 were pursuant to doctor’s orders for preventative medication, such as medication before exercise.  There is no requirement in law that a board of education not acting under Education Law §402-a consider specific factors in determining whether to close a school, nor is there a requirement that a board retain outside experts to decide the issues before it.  Therefore, respondent was not obligated to conduct an environmental health study merely because it received some letters or emails expressing concerns about exposure to fumes from traffic.  Based on the information it had at the time of its decision, which included 47 years of operating Vanderbilt without complaints about the air quality at Vanderbilt and its playground, respondent could properly conclude that such claims were unfounded.

On this record, I find that petitioners have not met their burden of proving that respondent’s decision to close Forest Park was arbitrary and capricious based on environmental health concerns with Vanderbilt.  In this case, petitioners have not submitted proof that students attending Vanderbilt are actually experiencing respiratory problems as a result of its proximity to the traffic on Route 231.  The environmental health studies submitted by petitioners suggest a correlation between proximity of a school to a heavily trafficked road and increases in childhood asthma and other diseases, but as respondent contends, the EPA indicates that most such studies have focused on major roadways with much higher traffic levels than Route 231, even if I accept petitioners’ contention that DOT data shows that 31,349 vehicles travel on Route 231 each day.  By their nature, such epidemiological environmental health studies can show a general correlation between distance from a heavily trafficked roadway and respiratory disease, but they cannot determine whether there is an actual air quality problem at a particular school.  The EPA, in the Quick Guide to Environmental Issues at page 118, noted that while the link between near-road exposures and adverse health effects has been made, “the science has not yet progressed to an understanding of how some key elements affect these associations, such as the types and size of roads of concern, the vehicle fleet mix and activities leading to highest exposures, and the distance from the road at which near-road health impacts subside.”  Respondent acted appropriately in asking its school physician to analyze whether the available data on school nurse visits demonstrate higher incidences of asthma or other respiratory diseases at Vanderbilt than at Forest Park.  The school physician concluded that the data does not demonstrate a higher incidence of asthma or respiratory disease at Vanderbilt, and I am not persuaded by petitioners’ arguments that the data supports such a finding.  Petitioners’ arguments that Vanderbilt should have been closed for environmental health reasons are speculative, given the uncertainties in the science underlying the studies on which they rely.  Petitioners have not proven that proximity of Vanderbilt to Route 231 has actually resulted in an adverse health impact on students attending that school.

In their reply, petitioners argue for the first time that respondent violated Board Policy 7960 by failing to consider “the present and projected adequacy of the site, in respect to location access, surrounding development, traffic patterns and other environmental conditions.” However, this claim was not raised in the petition, and for the reasons stated above could not properly be raised for the first time in the reply.  Regardless, Board Policy 7960, by its terms, specifies factors that an advisory committee on a school closing should consider in making its analysis.  The Board Policy is not phrased in mandatory terms -- it indicates that the advisory committee “should consider some or all” of 8 factors listed, including the one quoted by petitioners.  Thus, there is no basis for concluding that a failure by the Steering Committee to consider one factor, environmental conditions, violated this Board Policy.

Petitioners further argue that the closing of Forest Park is contrary to sound educational policy because in 2011 it was designated as a Blue Ribbon School by the United States Department of Education, and no other district school was so identified.  Citing student performance data from 2011-2012, petitioners further contend that the closing violates respondent’s principle of achieving academic excellence because it was a higher performing school than Vanderbilt.  Respondent argues that Forest Park’s status as a Blue Ribbon School is not determinative because the students and staff responsible for its status as a Blue Ribbon School will be dispersed among other schools in the district.  Although I acknowledge that status as a Blue Ribbon School in and of itself should prevent a school from being closed, I reject that argument in this appeal, because it ignores the role of the building principal as the school leader, which is widely recognized as a key factor in a school’s success.  I am not persuaded that closing a successful school does not matter merely because its staff and students will be dispersed to other schools.  However, in its November 1, 2013 letter, respondent very clearly concluded that every elementary school in the district is comparable in terms of academic performance.  The 2011-2012 student performance data submitted by petitioners supports respondent’s contention that all of its elementary schools are high-performing.  Petitioners are correct that Forest Park was the highest performing school in the district, and that Vanderbilt was the third lowest performing elementary school in the district in English Language Arts and mathematics.  The differences in scores are not so substantial, however, as to indicate that respondent lacked a rational basis in concluding the performance of the two schools was comparable.  On this record, I find that petitioners have not met their burden of proving that the closing of Forest Park was contrary to sound educational policy.

The issue in this appeal is not whether, on this record, I would have made a different decision than respondent, but rather whether petitioners have met their burden of proving that respondent’s decision to close Forest Park lacked a rational basis.  If respondent can articulate a rational basis for its decision, I am constrained to dismiss this appeal rather than compel respondent, and ultimately its taxpayers, to bear the costs and burden of revisiting the contentious issues surrounding this school closing.  This is an area in which a board of education has great discretion, including the weight to be given to various factors in determining which school to close.  Therefore, the mere fact that the Steering Committee gave more reasons for closing Vanderbilt than Forest Park is not dispositive.

The Steering Committee cited the close proximity of the two schools as a reason for closing either school.  This is supported by the map attached to the Steering Committee’s presentation that shows the 2013 attendance zones.  The two schools are mere blocks apart, with Vanderbilt located slightly to the east and closer to the center of the school district.  As noted above, the Steering Committee cites the lower population density surrounding Vanderbilt as a reason for closing that school and not closing Forest Park.  However, the close proximity of the two schools diminishes the significance of that factor.  Regardless, the Steering Committee cites its location on Deer Park Avenue as a third reason for closing Vanderbilt — indicating that the location may make the school easier to protect from vandalism once it is closed and is a good location for alternative use.  The Steering Committee then cites its central location, which provides easier transportation for students re-routed from another school as a reason for not closing Vanderbilt.  In favor of closing Forest Park, the Steering Committee cites the ease of access to other schools, which makes transportation of students easier.  As additional reasons against closing Forest Park, the Steering Committee cites to location in a neighborhood that makes it difficult to protect and secure (after closure), the school’s status as a Blue Ribbon School and its limited capacity for alternative uses.

In this appeal, respondent argues that it had to make a difficult decision and acted within its discretion in choosing between two schools with comparable facilities and academic performance, and with relatively equivalent pros and cons with respect to closure.  Respondent’s primary argument in favor of keeping Vanderbilt open is that closing Chestnut Hill and Forest Park would impact the least number of students district-wide and that 300 additional students would be impacted if the Board closed Chestnut Hill and Vanderbilt.  Respondent further argues that, with the closing of Chestnut Hill, Vanderbilt becomes the natural choice for Chestnut Hill students to attend because it is the next closest school and that if Vanderbilt and Chestnut Hill were closed, Chestnut Hill students would have to be bused to Forest Park.  Respondent further alleges that closing Forest Park rather than Vanderbilt better achieves geographic balance.  Finally, respondent asserts in its answer that the board considered closing Forest Park and Chestnut Hill for reasons of economy and efficiency, including the ability to accommodate Forest Park and Chestnut Hill students on a more cost-effective basis in other schools; the effect on personnel needs, such as the cost of instruction, administration, transportation and other support services; achieving balanced diversity; and the ramifications of the closing on the students and the community.

Respondent’s argument that closing Forest Park instead of Vanderbilt achieves greater geographic balance does not withstand scrutiny.  Because the two schools are both in the northeastern portion of the district and are in close proximity, achieving geographic balance cannot be a reason for selecting Forest Park over Vanderbilt, though it definitely supports the decision to close one or the other.

As to respondent’s argument that that closing Forest Park achieved greater economy and efficiency, I note that there is no reference in respondent’s Guiding Principles or its November 1, 2013 letter to economy and efficiency, except with respect to correcting for outlier communities to achieve transportation efficiencies.  There is no specific evidence in the record relating to the relative projected costs of transporting students to the two schools, nor is there any explanation in the record of how the goal of correcting for outlier communities was being achieved.  However, it is clear from the record that Vanderbilt is more centrally located than Forest Park, albeit only by a few blocks, which means that respondent could rationally conclude that retaining Vanderbilt would achieve somewhat greater economy and efficiency.  Based on the attendance zone maps included in the record, it appears that the reference to outlier communities is to neighborhoods that have historically been included in the attendance zones of the various elementary schools, even though they are separated from the school of attendance by, and may be surrounded by, neighborhoods in the attendance zones of other elementary schools.  Again, it would not be irrational for respondent to conclude that the more central location of Vanderbilt means that retaining that school would achieve greater transportation efficiencies.

In this regard, respondent further contends that Vanderbilt’s relative proximity to Chestnut Hill makes it a natural choice for many Chestnut Hill students to attend, and that transporting those students to Forest Park rather than Vanderbilt would add more time to their bus ride.  As petitioners point out, Chestnut Hill has a different secondary school feeder pattern than either Vanderbilt or Forest Park, and one of respondent’s Guiding Principles was that no changes in secondary feeder patterns would be made.  Though it is possible that respondent could carve out an exception to the general secondary feeder patterns for students who are transferred to Vanderbilt or Forest Park, respondent offers no explanation for this apparent discrepancy, and for that reason I have disregarded such argument.

The primary reason repeatedly given by respondent for closing Forest Park rather than Vanderbilt, including in the November 1, 2013 letter, is that closing Vanderbilt would have impacted more students district-wide than closing Forest Park.  In support of this argument, respondent provides a sworn affidavit of its superintendent of schools in which she asserts that the board conducted an analysis of the number of students who would be impacted by changes in attendance zones following closure and concluded that, on a district-wide basis, more than 300 additional students would be impacted by closing Vanderbilt.  She also asserts that of the four pairs of schools considered by the Steering Committee for possible closure, the combination of Chestnut Hill and Forest Park would impact 2,433 students, the lowest amount of the four scenarios under consideration.  In making this assertion, she cites to a document labelled “Building Closure Scenarios” (“closure scenario analysis”) that analyzes the student impact of the four scenarios.  Despite petitioners’ various arguments, I have no basis to question the superintendent’s sworn statement that such analysis was conducted and was a basis for the board’s decision.

Petitioners are correct that both the demographic study and the closure scenario analysis indicate that Forest Park’s enrollment was greater than Vanderbilt’s, so more students would be exiting Forest Park upon closure than Vanderbilt.  However, I do not agree with petitioners that respondent could not rationally conclude that when projected changes in attendance zones are considered, more students would actually be impacted on a district-wide basis if Vanderbilt closed.  Though the superintendent’s estimate of the total number of students impacted by the closing of Forest Park and Chestnut Hill at 2,433 is not consistent with the closure scenario analysis, which shows a much lower number for all four scenarios, that analysis does support the more critical finding that more than 300 additional students would be impacted by the closure of Vanderbilt, and that of the four combinations of schools considered for closure, the pairing of Forest Park and Chestnut Hill would impact the least number of students district-wide.   

Petitioners argue that respondent could not have based its decision on the impact of attendance zones on students because respondent did not determine the attendance zones until after the October 28, 2013 decision to close Forest Park.  Indeed, it appears from the record that respondent engaged in public discussions of various attendance zone options in the month of November 2013 and that respondent did not adopt its final map of elementary attendance zones for the 2014-2015 school year until December 2, 2013.  However, the fact that the public discussion of various attendance zone options occurred after the decision to close Forest Park, and that a final decision on attendance zones was not made until December, does not establish that the closure scenario analysis was prepared after the October 28, 2013 decision or that respondent had not yet conducted a sufficient analysis of attendance zone options by that date to know that closure of Forest Park would impact more students district-wide.  In this regard, I accept the sworn statement by the superintendent, which has not been rebutted by petitioners.

Petitioners further argue that the process was flawed, in that the discussions about possible closings initially focused on the possible closing of only one school, Chestnut Hill, and they were not given sufficient opportunity to provide input on the possibility of closing two schools, one of which might be Forest Park.  However, the record establishes that the Steering Committee presented its recommendations at a public meeting on September 26, 2013 and that respondent subsequently held several special meetings prior to October 28, 2013 to discuss the proposed closings.  Therefore, petitioners were on notice of the possibility of closing Forest Park approximately a month prior to respondent’s action, and the public was afforded ample opportunity to submit comments.  On this record, petitioners have not demonstrated that the process followed by respondent was arbitrary and capricious or in violation of law.   

While I do not find that the process followed by respondent was in violation of law, I find that respondent generated more controversy over this closing than was necessary, by not being completely open and transparent about its reasons for selecting Forest Park for closing.  Like many other school closings, this one was bound to generate controversy; however, respondent failed to provide explicit reasons for selecting Forest Park for closure on October 28, 2013, but rather chose to rely upon general principles that it followed in deciding to close two schools.  That approach was bound to lead to suspicions that the board was being secretive and not presenting its real reasons for the actions it took, and the extent to which the papers submitted by petitioners in this appeal are vituperative and challenge every aspect of respondent’s decision and process is a sign that respondent’s approach did just that.  Given the extent of a board of education’s discretion in closing a school, there was no reason for respondent to avoid making a clearer statement of its rationale for deciding to close Forest Park, even if that were as simple as stating that greater transportation efficiencies would be achieved by closing Forest Park.  I admonish respondent that in the future, it needs to avoid unnecessary controversy by clearly explaining to the public the reasons for choosing one school over another for closure.

I have considered petitioners’ remaining arguments and find that they have no merit.

THE APPEAL IS DISMISSED.

END OF FILE

 

*The following individuals are also listed as petitioners:

HOWARD S. BRESLOW, ROSANNA ABBATIELLO, JEFFREY ARANOFF, JILL ARANOFF, DONALD BERESHEIM, SANDRA BERESHEIM, ELIZABETH BHOLAT, ADAM BOCK, CHRISTIN BOYCE, LORRAINE BRESLOW, JENNIFER BRITE, JOHN CAHALANE, SARAH CAHALANE, SANDRA CASTROVA, KEVIN CASTROVA, ROBERT CIPPITELLI, DAVID DICKSON, HILLARY DICKSON, MICHAEL DYCKMAN, PATRICIA DYCKMAN, LYNN ESSNER, PAUL ESSNER, STEPHANIE FAULHABER, RONNIE GRILL, DIVYA KRISHNA, VALERIE LACOURCIERE, CARMEN LAMPREA, DONALD MCKAY, LAUREN MCKAY, NANCY NOREMAN, RONALD NOREMAN, PAUL NUZZOLO, JOSEPHINE RASTELLI, VITO RASTELLI, MICHELE ROGOWSKY, MARIA ROMERO, SUSAN SAPODIN, AMY SHOCHAT, LLYOD SHOCHAT, JACQUELINE SPENCER, JULIETTE TROPE, JENNIFER TSAKOUNIS-NUZZOLO, HOWARD WEINSTEIN, LISA ZEVA, and KATHLEEN ZOGHEB, RUTH HYMAN, BETH GLASER, TRACY KLEINBERG, TWILA SILVERMAN, LORI CAIAZZO, ALLISON YARIS, GLEN YARIS, SUHAILA RASHIDZADA, TIMOR RASHIDZADA, CHRISTINE LEOTTA, ANTHONY LEOTTA, and DENINE PAPPANIA