Appeal of JENNIFER GEIGER, et. al.,[1] from action of the Board of Education of the Northport-East Northport Union Free School District and Superintendent Robert Banzer regarding school closure.

Decision No. 18,169

(August 2, 2022)

Ingerman Smith, LLP, attorneys for respondent, John H. Gross, Esq., of counsel

ROSA., Commissioner.--Petitioners challenge a determination of the Board of Education of the Northport-East Northport Union Free School District (the “board” or “respondent”) to proceed with a plan to reorganize instructional delivery among the district’s school buildings.  The appeal must be dismissed.

On June 20, 2019, respondent engaged SES Study Team, LLC (“SES”) to identify “opportunities [for the district] to provide quality educational programs more effectively.”  The board charged SES with conducting an enrollment projection/demographic study, a pupil/facilities capacity analysis, and a program delivery study of options and associated services.  This included “consideration of the possibility of closing District schools.”

In an email dated September 25, 2019, community members were informed that the board had initiated “a [f]uture [s]tudy process” and would assemble a community advisory committee (“CAC”) to provide options to the board for consideration.  Respondent established the CAC on November 7, 2019, which consisted of 46 members.  

Over the course of several months, the CAC met to examine and discuss drafts of studies completed by SES.  On July 31, 2020, SES submitted its final report, which outlined five different school closure “scenarios” for the board to consider.

At an October 14, 2020 board meeting, the superintendent provided an overview of the report to the community. 

At a December 3, 2020 board meeting, the board approved a modified version of one of the scenarios provided by SES, referred to in the record as “Adapted Scenario A” (the “closure plan”).  The board directed the administration “to take all necessary actions to proceed[,] including, but not limited to, the educational impact study [“EIS”], for the 2021-22 school year.”  This scenario would result in the closure of two of the district’s elementary schools—Dickinson Avenue Elementary (“Dickinson”) and Bellerose Elementary (“Bellerose”)—as well as the restructuring of the remaining four elementary schools to serve grades K-4 and the middle schools to serve grades 5-8.  This appeal ensued.  Petitioner’s request for interim relief was denied on January 22, 2021.

Petitioners argue that the decision to proceed with the closure plan on December 3, 2020 was arbitrary, capricious, and contrary to sound educational policy.  Petitioners maintain that respondents failed to adequately plan or budget for the closure plan.  Petitioners further contend that respondents failed to present the community with an assessment of the costs associated with implementation of the plan.  Petitioners seek a determination that the December 3, 2020 vote was arbitrary and capricious.

Respondents contend that petitioners’ arguments are premature because the board made no final decision with respect to the closure of Dickinson and Bellerose at the December 3, 2020 board meeting.  Respondents also contend that the board’s action was a rational decision based on its “collective judgment and deliberation.”

First, I must address a procedural matter.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  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 as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; see generally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

The approval of the closure plan at the December 3, 2020 board meeting did not represent a final decision by the board to close Dickinson and Bellerose.  The board’s approval merely directed the district “to take all necessary actions to proceed including, but not limited to, the [EIS], for the 2021-2022 school year.”  Thus, at minimum, respondent committed to conducting an EIS prior to closing any school buildings.  Education Law § 402-a (1) authorizes, and recommends, that a board of education convene an advisory committee and prepare an EIS prior to a proposed school closing.  An EIS must consider, among other things,

the current and projected pupil enrollment; the ramifications of such closing upon the community; initial costs and savings resulting from such closing; the effect of closing on the costs of instruction, administration, transportation, and other support services; and the ability of other schools in the district to accommodate pupils if such school buildings close.

(Education Law § 402-a [1]-[2]).  The superintendent affirms that, consistent with Education Law § 402-a, the board subsequently established a school closure advisory task force to prepare an EIS, which was required to be filed by April 8, 2021.  Moreover, the superintendent avers that the board will review the completed EIS and, following a public comment period, make a final determination regarding the selection and implementation of the closure plan.

Additional evidence in the record confirms the preliminary nature of the closure plan.  For example, a February 11, 2021 letter from the superintendent explains that “the closing of school buildings is a herculean task ... that could not be accomplished in a few months during the summer.”  The superintendent reiterated that “the Board has not made a final determination regarding” the closure of the elementary schools, indicating that any such determination will be made following the completion of the EIS.  Additionally, a 2021 letter from elementary school principals to district parents states that “[t]he closing of school buildings requires significant planning to ensure that students are able to transition successfully,” and if the “final decision of the Board is to ultimately close the Dickinson … and Bellerose …, we cannot wait to begin preparing for this possibility and risk having our students miss out on important educational milestones.”

For all of the above reasons, the appeal must be dismissed as premature (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of Anderson, 51 id., Decision No. 16,259; compare Appeal of Tancredi, 57 id., Decision No. 17,381; Appeals of Luciano and Hatton, 50 id., Decision No. 16,153).  I have considered petitioners’ remaining arguments and find them to be without merit.

THE APPEAL IS DISMISSED.

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