* Subsequent History: Matter of Agostini v Elia; Supreme Court, Albany County, Special Term (Zwack, J.); Decision and order dismissed petition to review; August 27, 2018; affd 181 AD3d 1013 (3d Dept 2020). *

Appeal of RUBNELIA AGOSTINI, DEBORAH ALEXANDER, REESHEMA BRIGHTLEY, LAURA CAVALLERI, JOHANNA GARCIA, AURORA RONDA, NAILA ROSARIO, JOANN SCHNEIDER, LITZA STARK, on behalf of themselves and their children, CLASS SIZE MATTERS, ALLIANCE FOR QUALITY EDUCATION, and LETITIA JAMES, as the Public Advocate for the City of New York, from the determination of Carmen Fariña, Chancellor of the New York City Department of Education, and the New York City Department of Education relating to its class size reduction plan pursuant to Education Law §211-d.

Decision No. 17,286

(December 19, 2017)

Education Law Center, attorneys for petitioners, Wendy Lecker, Esq., of counsel

New York City Law Department, attorneys for respondents, Joshua Wertheimer, Esq., of counsel

ELIA, Commissioner.--Petitioners appeal the decisions of the Board of Education of the City School District of the City of New York (“respondent board”) and Carmen Fariña, as Chancellor of the New York City Department of Education (“DOE”) (collectively referred to as “respondents”) relating to its class size reduction plan under Education Law §211-d. The appeal must be dismissed.   

Petitioners, as named in the caption, are Letitia James, Public Advocate for the City of New York; Alliance for Quality Education (“AQE”); Class Size Matters (“CSM”); and several parents of students in the district.  According to the petition, CSM is a not-for-profit corporation which advocates for smaller class sizes in New York City public schools; AQE is a grassroots advocacy and community organizing coalition that assists parents, teachers and others to advocate for a high quality public education for all students; and the Public Advocate ensures that the City government serves its citizens by exercising oversight of city agencies, investigating citizen complaints, and making proposals to address perceived failures. 

In April 2007, the New York State Legislature enacted Education Law §211-d (known as the “Contracts for Excellence” law) as part of Chapter 57 of the Laws of 2007, which applies to certain school districts, including the New York City school district, that were provided with additional State funding, generally in the form of increases in total foundation aid.  Districts that received increases in total foundation aid above the thresholds specified in Education Law §211-d(1)(a) and had at least one school in certain specified accountability statuses, were required to develop a Contract for Excellence (“contract”) and to set aside a portion of their total foundation aid to support programs and activities to improve student achievement as specified in the contract, particularly for low achieving, high needs students (see Education Law §211-d[1][a],[2][b][i],[3][a]).  The requirement for a contract was initially linked to increases in total foundation aid from year to year that met the statutory thresholds.  However, Education Law §211-d was subsequently amended to require districts that were required to prepare a contract in the prior year and had a two-year increase in total foundation aid in excess of certain specified thresholds and had at least one school in specified accountability statuses to prepare a contract in the current year (see Education Law §211-d[1][b]).  In addition, since the 2009-2010 school year the statute has been amended repeatedly to require districts to submit a contract for approval of the Commissioner for the current school year and to provide for the expenditure of an amount determined by a formula for such purpose, if the district was required to submit a contract for the prior school year, unless all schools in the district are identified as in good standing under the State’s accountability system (see Education Law §211-d[1][e]). 

Each contract is required to demonstrate how the district would spend the funding increases on specifically enumerated “allowable programs and activities,” including class size reduction; programs that increase student time on task; teacher and principal quality initiatives; middle school and high school restructuring; expansion or replication of effective models for students with limited English proficiency; and full-day pre-kindergarten and kindergarten programs (Education Law §211-d[3][a]; 8 NYCRR §100.13[c][2]).  Districts required to prepare a contract must submit such contract to the Commissioner for approval on an annual basis (Education Law §211-d[5]; 8 NYCRR §100.13[b][2]).

Education Law §211-d(2)(b)(ii), as enacted by Chapter 57 of the Laws of 2007,  imposed an additional requirement on the New York City School District, requiring it to develop and submit to the Commissioner for approval, as part of the Contract for Excellence, a plan to reduce average class sizes in the New York City school district within five years.  The statute required that the class size reduction plan reduce average class sizes in three distinct grade ranges:  prekindergarten to grade 3; grades 4 to 8; and high school.  The statute also requires that the plan include class size reduction in schools designated by the district as low performing and overcrowded (Education Law §211-d[2][b][ii]).  In accordance with this law, in November 2007, the DOE submitted its Contract for Excellence, which included its five-year class size reduction plan to the Commissioner for review.  This contract was approved by the Commissioner on November 19, 2007 and the Commissioner approved a grant of $258 million in contract funds.

Following the submission of its 2007 Contract for Excellence, DOE responded to additional conditions imposed by the State Education Department (“SED”), for the 2008-2009 school year and committed to prioritizing the allocation of Contracts for Excellence funds to the following: class size reduction, time on task, teacher and principal quality initiatives, middle school/high school restructuring and UPK/K and model programs for English language learners in its updated 2008-2009 Contract for Excellence. 

Thereafter, in the 2009-2010 school year, the federal and State governments faced an economic recession and there was a shortfall in State funding.  As a result, DOE was no longer receiving an increase in total foundation aid to support any new expenditures to implement the Contracts for Excellence program.  In addition, at this time, funding for the New York City budget was also constricted.

 Due to the change in economic circumstances, the then-Chancellor of DOE advised SED that DOE could not achieve the class size targets identified in its 2008-2009 amended class size reduction plan and could not continue class size reduction efforts system-wide.  After several discussions with the DOE due to the severe financial condition of the State and City budgets, by letter dated November 8, 2010, the Commissioner authorized DOE to suspend the class size targets outlined in the 2008-2009 plan.  DOE was also required to certify to SED by February 15, 2011, that it implemented the 2010-2011 class size reduction plan.[1]  By letter dated February 15, 2011, DOE submitted class size and pupil-teacher ratios as of January 28, 2011 and certified to SED that “from the 2009-2010 school year to the 2010-2011 school year, all Target 75 schools have decreased class size or pupil-teacher ratio (or have kept pupil-teacher ratio below the citywide level)”.   

Thereafter, DOE continued to submit its annual Contract for Excellence plans, which included plans for class size reduction as an allowable activity for the 2012-2013, 2013-2014, 2014-2015, 2015-2016 and 2016-2017 school years.  Each of these Contract for Excellence plans was approved by the Commissioner.  This appeal ensued.[2] 

Petitioners argue that respondents have not reduced class sizes in the district to the averages established in their 2007 class size reduction plan, including those schools identified by DOE as low performing and overcrowded, in violation of Education Law §211-d(2)(b)(ii) and 8 NYCRR §100.13(b)(1).  Petitioners further assert that respondents’ capital plan for financing and construction of renovation and new school facilities does not conform to, nor implement, the class size averages and targets prescribed in the 2007 class size reduction plan, in violation of Education Law §211-d(2)(b)(ii) and 8 NYCRR §100.13(b)(1). 

Respondents assert that petitioners CSM, AQE and Letitia James lack standing.  Respondents further contend that petitioners have not met their burden of demonstrating facts that indicate a clear right to the relief requested and that the DOE’s administration of Contracts for Excellence and attendant class size reductions reflect rational acts of discretion that comply with applicable laws and regulations.  Respondents also assert that to the extent petitioners seek to enforce the 2007 class size reduction plan, which expired at the conclusion of the 2011-2012 school year, the claims must be dismissed as moot. 

First, I must address respondents’ contention that CSM, AQE, and Letitia James 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).

Petitioners assert that petitioner Letita James, representing citizens of New York City as the Public Advocate for the City of New York, has standing; and that both CSM, representing parents of affected public school children, and AQE, an organization that works with communities in New York City and across New York State to assist parents, teachers and others to advocate for a high quality education, have organizational standing.

Specifically, petitioners assert that petitioner Letita James has standing as the New York City Public Advocate because she ensures that the City government serves its citizens by exercising oversight of City agencies, investigating citizen complaints regarding City services, and making proposals or seeking relief to address perceived shortcomings or failures.  Petitioners appear to argue that petitioner Letita James, as the Public Advocate, has capacity to bring this appeal.  However, petitioners have not demonstrated that petitioner James has standing (see Appeal of Letitia James, 54 Ed Dept Rep, Decision No. 16,646).  To establish standing, petitioner James must show that she suffered specific injury in fact and that the injury sustained falls within the zone of interests protected by the statute (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761).  Her status as a City elected official does not, in and of itself, confer standing to challenge New York City’s class size reduction plan on behalf of her constituents (see Matter of Montgomery v. Metropolitan Transportation Authority, 25 Misc3d 1241[A]; Urban Justice Center, et al. v. Pataki, et al., 10 Misc3d 939, affd 38 AD3d 20; Appeal of Letitia James, 54 Ed Dept Rep, Decision No. 16,646; Appeal of Williams, 53 id., Decision No. 16,548).  The allegation that she is bringing this appeal on behalf of the citizens of New York City who are aggrieved as a result of New York City’s class size reduction plan does not establish specific injury or interest required for standing (see Matter of Montgomery v. Metropolitan Transportation Authority, 25 Misc3d 1241[A]; cf. Silver v. Pataki, 96 NY2d 532, 539-540 [Speaker of the Assembly, as legislator, has standing to challenge an alleged unconstitutional veto that nullified his vote]).  Petitioners have failed to allege that petitioner Letita James has herself been aggrieved by New York City’s class size reduction plan or that she is bringing this appeal on behalf of parents of students or students who will be attending schools in the buildings impacted by any class size reduction plan.  Accordingly, petitioner Letita James lacks standing to maintain this appeal (Appeal of Letitia James, 54 Ed Dept Rep, Decision No. 16,646).

Petitioners also argue that CSM and AQE have organizational standing.  In order to establish organizational standing, petitioners must demonstrate that one or more of their respective members has standing to sue, that the interests advanced in the matter are sufficiently germane to the individual members’ purposes such that the organization is an appropriate representative of those interests, and that the participation of the individual members is not required to assert this claim (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 775).  With respect to the first part of the test for organizational standing, petitioners assert that CSM and AQE represent public school children or parents of public school children and that these children and their parents have standing to appeal because New York City’s class size reduction plan would impact the course of education at the schools these children currently attend.  With their reply, petitioners submit affidavits from AQE and CSM’s executive directors.  AQE’s executive director avers that one of AQE’s members is a parent with a student at P.S. 148, in Community School District 30, which has class sizes as high as 32 students.  CSM’s executive director avers that the orgnization’s members include two parents in schools in Community School District 30.  Therefore, I find that petitioners AQE and CSM meet the first part of the test for organizational standing.  I also find that the class size reduction plan is sufficiently germane to the individual members’ purposes and that the organizations are appropriate representatives of those interests.   Accordingly, I find that AQE and CSM have standing to maintain this appeal. 

The only causes of action asserted by petitioners in this appeal are that respondents have failed to implement their 2007 class size reduction plan and that respondents’ capital plan for financing and construction for renovation and new school facilities neither conforms to nor implements the class size averages prescribed in DOE’s 2007 class size reduction plan in violation of Education Law §211-d(2)(b)(ii) and §100.13(b)(1)(vi) of the Commissioner’s regulations.

Education Law §211-d(2)(b)(ii) requires DOE to submit a “plan to reduce average class sizes, as defined by the commissioner, within five years....”  Section 100.13(b)(1)(vi) of the Commissioner’s regulations specifically provides that the class size reduction plan required by statute must set goals to be achieved “by the end of the 2011-2012 school year...” (emphasis added).  As noted above, due to a severe economic downturn, well before the end of the 2011-2012 school year, respondents ceased to receive the annual increases in total foundation aid contemplated when Education Law §211-d was enacted in 2007.  Consequently, the Commissioner approved revisions to respondents’ 2007-2008 class size reduction plan beginning in 2008-2009.  By its own terms, Education Law §211-d(2)(b)(ii) and its corresponding regulation indicate that the 2007 class size reduction plan was to be achieved by the end of 2011-2012 school year, more than five years ago. It is well-settled that 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.  To the extent petitioners are seeking to enforce respondents’ 2007-2008 class size reduction plan, the appeal has been rendered moot by the subsequent revisions of such plan by respondents, as approved by the Commissioner, and by the fact that such plan concluded at the end of the 2011-2012 school year.

 Further, to the extent petitioners intend to appeal respondents’ formulation and/or the contents of the 2016-2017 Contract for Excellence, which included class size reduction as an allowable activity, such claims have been rendered moot by the Commissioner’s July 2017 approval of that contract and must therefore be dismissed.[3]

Moreover, to the extent that petitioners seek to challenge respondents’ class size reduction plans or capital plans through the end of the 2011-2012 school year  and/or claim that respondents failed to fully implement the 2007-2008 class size reduction plan by the end of the 2011-2012 school year and/or failed to align their capital plan with their 2007-2008 class size reduction plan, the appeal must also be dismissed as untimely.  An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  This appeal was not commenced until July 6, 2017, more than five years after the conclusion of the 2011-2012 school year.  Therefore, to the extent petitioners are seeking to enforce respondents’ 2007-2008 class size reduction plan and/or challenge respondents’ alleged failure to implement such plan by the end of the 2011-2012 school year and/or respondents’ failure to align with their capital plan with the 2007-2008 class size reduction plan, the appeal is clearly untimely, and petitioners have not established good cause for the substantial delay.

Furthermore, the appeal was not commenced within 30 days of respondents’ final approval of the class size reduction plans or any capital plans submitted for the 2008-2009, 2009-2010, 2010-2011 and/or 2011-2012 school years (Education Law §211-d[2][b][ii]; 8 NYCRR §100.13).  Therefore, the appeal is untimely to the extent petitioners challenge those class size reduction plans and/or capital plans.  Similarly, to the extent petitioners intend to challenge respondents’ implementation of their Contract for Excellence plans, which included class size reduction as an allowable activity and/or or respondents’ capital plans, for the 2012-2013, 2013-2014, 2014-2015 and/or the 2015-2016 school years, such claims are also untimely and must be dismissed.

Finally, I note that even if petitioners’ challenge the formulation and/or implementation of respondents’ plan for class size reduction as an allowable activity within respondents’ Contract for Excellence for the 2016-2017 school year was not dismissed as moot, it would be dismissed on 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). 

On this record, petitioners have not met their burden of proving that respondents’ plan for class size reduction, included as part of its 2016-2017 Contract for Excellence as an allowable activity, was arbitrary and capricious or in violation of law.  In my July 2017 letter approving respondents’ 2016-2017 Contract for Excellence, I noted that respondents had identified 85 Targeted Class Size Reduction Schools (“targeted schools”) for which the limited State funds set aside from targeted foundation aid would be used to reduce class size.  By targeting these limited state funds on schools with the highest average class size and schools with high utilization rates and low performance, respondents directed funding to schools with higher levels of student educational need than the district average, including higher percentages of students with disabilities, students in poverty and English language learners.  The plan provided for a decrease in average class size for the targeted schools, with the exception of eight kindergarten to grade 8 schools, which would have a slight increase in class size of one-tenth of one percent.  Overall, however, the plan would result in a lower average student to teacher ratio for the 85 target schools than for the district as a whole.  Thus, the targeting provided for in respondents’ 2016-2017 Contract for Excellence is consistent with respondents’ obligation pursuant to Education Law §211-d(b)(i) to assure that new or expanded programs supported by additional total foundation aid received “predominately benefit students with the greatest educational needs.”

Here, the petition is devoid of any specific allegations relating to respondents’ 2016-2017 class size reduction activities, even though the petition includes a link to a presentation by respondent on its “2016-2017 Contract for Excellence Proposed Plan.”  Thus, petitioners have made no showing that the methodology used by respondents in developing their 2016-2017 class size reduction activities was flawed or that funds are not being used for allowable programs or activities in accordance with Education Law §211-d(3)(a)(i) and 8 NYCRR §100.13(c)(2)(a), or that the plan was otherwise arbitrary or capricious or in violation of law.  In this appeal, petitioners’ only argument appears to be that respondents’ 2016-2017 class size reduction activities violate Education Law §211-d because they do not achieve the class size targets set in respondents’ initial 2007-2008 class size reduction plan.  However, as I indicated above, petitioners’ claims relating to implementation of the 2007-2008 class size reduction plan by the end of the 2011-2012 school year are both moot and time-barred.  Petitioners have also failed to establish that respondents’ 2016-2017 class size reduction activities violate Education Law §211-d or 8 NYCRR §100.13 in any way.

Finally, petitioners also make conclusory assertions that respondents have failed to align the 2016-2017 class size reduction activities with the capital plan of the City School District of the City of New York, as required by 8 NYCRR §100.13(b)(1).  However, petitioners have provided no proof to support their conclusory allegations in this regard, which are denied by respondents.  Respondents have submitted a copy of a 2013 amendment to DOE’s 2010-2014 five-year capital plan that includes a specific discussion of its class size reduction plan and amendments to the capital plan to accomplish class size reduction.  Accordingly, I find that petitioners have failed to meet their burden of proving that respondents have violated either Education Law §211-d(2)(b)(ii) or 8 NYCRR §100.13(b)(1) by failing to align their capital plan with their class size reduction plan. 

In light of the foregoing, I need not address the parties’ remaining contentions. 

THE APPEAL IS DISMISSED.

END OF FILE