Opinion
November 13, 1980
Appeal from the Erie Supreme Court.
Present — Simons, J.P., Hancock, Jr., Schnepp, Doerr and Witmer, JJ.
Order unanimously reversed, without costs, and petition dismissed, without prejudice to any administrative action deemed advisable. Memorandum: Respondent appeals from an order denying its motion to dismiss petitioners' CPLR article 78 petition challenging its decision to close Hillside Elementary School and to reassign the students to other schools in the district. Respondent contends that review of the school closing decision is within the exclusive jurisdiction of the Commissioner of Education and is not initially reviewable in a CPLR article 78 proceeding (Education Law, § 310). The general rule is that an appeal to the commissioner is the exclusive remedy where the issue involves "the professional judgment and discretion of those responsible for the administration of public schools" (Matter of Bokhair v Board of Educ., 43 N.Y.2d 855, 856, citing James v Board of Educ., 42 N.Y.2d 357; accord Hoffman v Board of Educ., 49 N.Y.2d 121; Donohue v Copiague Union Free School Dist., 47 N.Y.2d 440). Where, however, a statutory or constitutional provision is the basis of the dispute or where discrete issues of law are present which do not involve matters of policy, review of a school board's decision by the courts is proper (see James v Board of Educ., supra, pp 365-366). Petitioners seek to review a discretionary decision involving the exercise of professional judgment in a school matter which does not raise a constitutional or statutory issue or a discrete question of law, i.e., whether an elementary school should be closed in the light of various considerations such as finances and safety. Petitioners' exclusive remedy is an appeal under section 310 Educ. of the Education Law.