Does closing a Bronx Renewal school violate state law? Public advocate thinks so, but legal argument is murky

At a contentious public hearing last week, members of the Panel for Educational Policy voted to close five schools in Mayor Bill de Blasio’s “Renewal” turnaround program.

But even before the vote took place, the public advocate’s office raised the possibility that the decision to close a south Bronx middle school could violate state law.

“We are particularly concerned about the proposal to close J.H.S. 145, since it is a zoned middle school and should not be closed without a vote of Community Education Council,” Public Advocate Letitia James wrote in a letter to schools Chancellor Carmen Fariña.

James’s argument, according to the letter, is that state law gives local Community Education Councils control over rezoning, so closing a zoned school amounts to changing zone lines and usurping the CEC’s power.

It’s a position that has earned some traction in the past.

In 2009, then-Public Advocate Betsy Gotbaum, the United Federation of Teachers, and the New York Civil Liberties Union were part of a lawsuit against former Mayor Michael Bloomberg’s education department, arguing that the closure of three elementary schools would represent a change in zone lines because there would no longer be any zoned schools left for families to choose from. The city ultimately withdrew the plan.

But would such a lawsuit convince the education department to back off its more recent closure plans?

Education department officials say there is a key difference this time around: When J.H.S. 145 closes, there will still be other zoned options.

“The decision to close it will in no way amount to a change in zoning lines, as there are still two schools in this zone that will give students zoned priority – Urban Science Academy and New Millennium Business Academy Middle School,” education department spokesman Michael Aciman wrote in an email. “The public advocate is wrong.”

It’s unclear why the public advocate’s office singled out J.H.S. 145: Two other middle schools the city is planning to shut down next school year also give students living in the zone priority in admissions. A spokeswoman for the public advocate’s office declined to explain their argument.

J.H.S. 145 was the most contentious in this round of closures, and many in the school community said the city did not adequately support it, despite the promise of additional resources from the mayor’s turnaround program.

Marilyn Espada, Community Education Council president for District 9, which includes J.H.S. 145, said the council is considering legal action — though it had not yet formally taken any steps. “My focus is getting this school to stay open,” she said in an interview.

The United Federation of Teachers, which was a plaintiff in the 2009 lawsuit against the city and has been vocal in its opposition to the closure, did not comment directly on the legal argument. “We are reviewing the case,” a spokeswoman said.

A potential legal battle would likely be difficult to win, according to David Bloomfield, an education law expert at Brooklyn College and the CUNY Graduate Center.

“Even though the public advocate’s theory is intriguing, it’s likely that the closure process supersedes CEC approval,” he said. “Any number of schools that have been closed are zoned schools.”