David J. Butler Direct Phone: 202.373.6723 Direct Fax: 202.373.6418 firstname.lastname@example.org
January 14, 2013 Via Facsimile and U.S. Mail James P. DeLorenzo Assistant Commissioner Office of P-12 Education: Office of Special Education State Education Department, University of the State of New York Room 301M EB, 89 Washington Avenue Albany, NY 12234
Re: East Ramapo Central School District - Your Letter Dated December 19, 2012 re: Special Education
Dear Assistant Commissioner DeLorenzo: This firm has been appointed special counsel to the Board of Education of the East Ramapo Central School District ("ERCSD" or "the District"). On behalf of ERCSD, we write in response to your letter of December 19, 2012 to the District's Superintendent, Dr. Joel Klein, in which you relay your office's findings of alleged non-compliance by the District with federal and state laws and regulations governing the educational placement of students with disabilities and resolution of parental challenges to the District's recommended placements. Your letter directs the District to take certain corrective actions. For the reasons explained below, we respectfully but forcefully disagree with your office's findings and conclusions. We believe that you have misapplied and misinterpreted applicable federal and state laws and regulations to the circumstances addressed in your letter, and that your office is without authority to demand the corrective action you have ordered. As we explain further below, we believe that ERCSD has conducted itself fully in accordance with applicable law in the processes it has followed with respect to the challenged special education resolution meetings and agreements, and has done so in a manner that is designed to serve the best interests of the District's students and taxpayers. Under applicable law, the decisions reached by ERCSD in the resolution agreements your letter challenges are decisions that are reserved for the considered judgment of the District and the affected students' parents. That regulatory scheme leaves no room for second-guessing by your office. As such, we believe that the criticism and demands contained in your December 19 letter are not only wrong, but are also wholly unauthorized.
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James P. DeLorenzo January 14, 2013 Page 2 ERCSD would welcome the opportunity to address these issues with you in a cooperative and constructive manner. On behalf of the District, we therefore respectfully request that you provide dates for such an in-person meeting at your earliest opportunity.
Final Agency Action
As an initial matter, it is not clear whether you intend your letter and summary of findings to constitute a final agency action for purposes of Article 78. While your letter does not state that it is a final agency action, it does not provide ERCSD with an opportunity for a hearing, or even invite a formal response. Rather, it makes supposed factual findings, purports to apply legal standards, and imposes certain corrective measures. Those actions tend to indicate that your letter is final agency action, and appealable. See Block 3066, Inc. v. City of New York, 89 A.D.3d 655, 656 (N.Y.A.D. 2 Dept. 2011). The ambiguity regarding your letter is further exacerbated by the unusual way in which ERCSD received notice of your findings, conclusions and directives. See Metropolitan Museum Historic Dist. Coalition v. De Montebello, 20 A.D.3d 28, 35 (N.Y.A.D. 1 Dept. 2005). It appears that your office first released your December 19, 2012 letter to the press on December 21, 2012. 1 The full text of your letter was then posted on the Newsday website on December 23, 2012. 2 But your December 19, 2012 letter was not delivered to ERCSD until December 27, 2012—a full week after your letter was first distributed to the press.' Given the seriousness of the issues you purport to address in your letter, it would have made sense to pursue rapid, reliable delivery of your letter to ERCSD, so that the issues you raise could be addressed expeditiously by the District. Your apparent choice to distribute your accusatory findings and conclusions to the press a full week before providing any actual notice to the District is troubling. Such behavior raises questions about your office's motivation, impartiality and interest in working with ERCSD to resolve outstanding issues in a collegial and constructive manner. ERCSD would prefer to work through these issues with your office rather than resort to adversary proceedings. However, to the extent your letter is a final agency action, ERCSD has a limited period of time within which to challenge your rulings, and needs to move forward with that challenge. C.P.L.R. § 217. We therefore request prompt clarification from you on whether you intend your letter to be "final agency
See Meaghan E. Murphy, State to East Ramapo: Special-Ed Violations Continue, Newsday (Dec. 21, 2012) available at http://www.newsday.com/search/state-to-east-ramapo-special-ed-violationscontinue-1.4364167. 2 See Meghan E. Murphy, State Delays Action on 2 East Ramapo Complaints, Newsday (Dec. 23, 2012), available at http://www.newsday. com/search/state-de lays-action-on-2 -east-ramapocomplaints-1.4369517. 3 See Attach. A, December 19, 2012 letter with ERCSD Clerk's date-stamp showing receipt on December 27, 2012.
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James P. DeLorenzo January 14, 2013 Page 3 action." In the absence of such requested clarification, ERCSD will have no choice but to file a protective Article 78 appeal before the limitation period expires. Such a course of action would be regrettable if no such confrontation is actually necessary. We will now address the findings and conclusions in your December 19 letter:
Findings With Respect To Documentation
Your letter finds that ERCSD has "failed to produce documentation to verify that the District has corrected outstanding noncompliance" relating to the District CSE's placements of students with disabilities in private schools, which were identified by your office in an April 2010 special education monitoring review, and in a February 2012 follow-up review. That "finding" misreads your office's earlier direction regarding next steps. Nothing in the April 2010 directives from your office purports to require ERCSD to produce "documentation to verify that the District has corrected outstanding noncompliance." Rather, the April 2010 Compliance Assurance Plan provides that the CSE's compliance with IEP documentation requirements will be verified by the Regional Associate, who will be reviewing selected records. If the Regional Associate has concluded that particular student records do not meet regulatory documentation standards, you need to inform the District exactly which records fail to comply, and to explain their specific deficiencies, so that proper supplementation or correction can be made (if necessary) and the CSE's documentation practices can be improved. As of this date, however, no such deficiencies have been brought to the District's attention.
IEP Implementation and Resolution Agreements
Your letter asserts that ERCSD has violated 8 NYCRR § 200.4(e). That provision generally requires School Districts to implement students' IEPs. After its purported review and analysis of the records relating to 21 resolution meetings between ERCSD and parents for the 2012-2013 school year, your office criticized ERCSD for "allowing one district representative to unilaterally determine the placement for students with disabilities," and concluded that the challenged practice is inconsistent with state and federal law, because the resulting agreements "override CSE LRE placement recommendations." We disagree.
First, we dispute your finding of any sort of "pattern or practice" by the District of failing to implement CSE recommendations. You provide no evidence to support that conclusion. According to your letter, your office reviewed a total of 21 resolution meetings for the District's 2012-13 school year. Those 21 files represent less than 2% of the CSE recommended placements for the year, since there are close to 2,000 "classified" students in the District who receive yearly IEPs. (As you know, there are a much larger number of students who are reviewed by the CSE who are either not classified, or whose parents refuse or ignore the CSE recommendation and placement without pursuing a due process challenge.) Your conclusion that ERCSD has a "clear intent and pattern to circumvent IDEA and remove the IEP decision-making process from the CSE" because
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James P. DeLorenzo January 14, 2013 Page 4 less than 2% of the CSE's recommended classified placements are amended pursuant to a statutorily authorized settlement process is patently unreasonable, and is an unfair conclusion to draw from the evidence. Second, we disagree with your conclusion that a Board of Education, or its authorized designee, lacks authority to agree to amend a student's IEP in order to resolve a parental challenge to a CSE recommended placement. Your letter fails to cite any legal authority to support your assertion, and there is none. As you are aware, both federal and state law provide that resolution meetings are a required first step in any parent's due process challenge to a CSE recommended placement. As described in the applicable law, those resolution meetings are the place "where the parents of the student discuss their complaint and the facts that form the basis of the complaint, and the school district has the opportunity to resolve the complaint." 8 NYCRR § 200.5(j)(2); 20 U.S.C. § 1415(f)(1)(B). And, according to applicable regulations, resolution meetings are designed to be "a valuable chance to resolve disputes before expending what can be considerable time and money in due process hearings." 71 Fed. Reg. 46701 (Aug. 14, 2006). As you also know, when a parent files a challenge to the recommendation of a CSE, the IDEA requires a School District to convene a resolution meeting with the parent. That resolution meeting must be attended by a School District representative with decision making authority, and any relevant members of the CSE to which the parent and the School District agree in advance. 20 U.S.C. § 1415(f)(1)(B). If an agreement between the parent and the School District is reached at the resolution meeting, the parties must execute a legally binding agreement, which is then enforceable in state and federal court. Id.; 34 C.F.R. §300.510. Federal law authorizes school districts to agree to reimburse parents for private school tuition to resolve IEP disputes. Indeed, your office requested guidance from the U.S. Department of Education on this point, and was specifically informed that federal law does not limit a school district's ability "to offer or include parental reimbursement in a mediation or settlement agreement" and "does not limit [a school district's] ability to reimburse a placement in a private school that has not been approved by the State to provide special education" in order to resolve a dispute. Attachment B, Letter from Melody Musgrove, Director, Office of Special Education Programs, U.S. Dept. of Education, to Rebecca H. Cort, VESID-New York State Education Dept. (Jan. 5, 2011). Federal law is also clear that in resolving parental IEP disputes, a School District is empowered to agree with parents to amend an IEP without seeking "approval" of the amendment by the CSE. Federal regulatory guidance on the 2006 amendments to IDEA explain the process for resolution agreements, and unequivocally provides that "[u]nless the agreement specifically requires that the IEP Team reconvene, there is nothing in the Act or these regulations that requires the IEP Team to reconvene following a resolution agreement that includes IEP related matters." 71 Fed. Reg. 46703 (Aug. 14, 2006).
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James P. DeLorenzo January 14, 2013 Page 5 State law is equally clear that a School District and parents may agree to amend a student's CSE recommended IEP and placement without convening a meeting of the CSE, and nothing in the New York Education Law imposes a limitation on the ability of the School District to agree with a parent to change a student's CSE recommended placement. N.Y. Educ. Law § 4402(3)(b)(ii) provides that, notwithstanding the CSE's recommendations, "in making changes to a student's individualized education program ... the parent ... and the school district may agree not to convene a meeting of the committee on special education for the purpose of making those changes, and instead may develop a written document to amend or modify the student's current individualized education program" where "the parent ... makes a request to the school district for an amendment to the individualized education program and the school district and such parent ... agree in writing. . . ." See also 8 NYCRR 200.4(g)(2)(i) ("the parent and the school district may agree not to convene a meeting of the committee on special education ... and instead may develop a written document to amend or modify the student's current IEP [when] ... the parent makes a request to the school district for an amendment to the IEP and the school district and such parent agree in writing"). That is exactly the process that ERCSD follows to resolve parents' challenges to a CSE recommended placement, and that practice is fully in accordance with applicable law. Third, your letter suggests that the CSE's placement recommendation cannot be overridden by the Board of Education pursuant to an agreement with a parent. But that's not the way the law works. Under the clear statutory and regulatory scheme, the Board of Education, as the elected representatives of the District, is statutorily empowered to reach agreement with parents as to the proper educational placement for their child, irrespective of the CSE's recommendation, provided that the agreement is in the best interests of the District and would not deny the student the statutorily required free appropriate public education ("FAPE"). N.Y. Educ. Law § 4402(3)(b)(ii); 8 NYCRR § 200.5(j)(2); 8 NYCRR 200.4(g)(2)(i); 20 U.S.C. § 1415(f)(1)(B). Indeed, the U.S. Department of Education has expressly stated that notwithstanding a CSE's recommendations, resolution agreements "may supersede an existing IEP," and that the "contents of settlement agreements are left to the parties who execute a settlement agreement." 71 Fed. Reg. 46703 (Aug. 14, 2006). Further, federal regulations suggest that not even State Education Agencies are authorized to substitute their judgment as to the appropriateness of a student's placement, provided the placement is mutually agreed upon by both the School District and the parent. Because federal law "strongly encourage[s] parties to resolve a complaint at the local level without the need for the [State] to intervene," agreements reached through mediation or resolution sessions are enforceable in state and federal courts, and State Education Agencies have no authority to approve or disapprove such agreements. 71 Fed. Reg. 46605. Fourth, your letter contends that New York law limits a school district's authority to resolve IEP-related disputes, because the regulations provide that, in the event a Board of Education disagrees with the recommendation of the CSE, the Board
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James P. DeLorenzo January 14, 2013 Page 6 may remand the recommendation back to the CSE for further consideration. The problem with your analysis is that the referral back process is inapplicable to resolution meetings. A resolution meeting is not prompted by a Board's disagreement with a recommendation of a CSE. A resolution meeting is prompted by a parent's disagreement with the CSE recommendation. And, as you concede, if a parent disagrees with the CSE, the parent has the right to engage in a resolution session with the School District pursuant to 8 NYCRR § 200.5(j)(2). As explained above, any agreement reached by the District and the parent in the resolution session is fully enforceable, and need not be approved by the CSE.
Fifth, your letter suggests that there is something improper about most of the resolution meetings that your office reviewed, because the parent complaints that initiated the resolution process were in the form of letters from parents "stating that they disagreed with the CSE placement recommendation," rather than in a formal complaint. We do not understand your point. We are not aware of any reason why a letter cannot constitute a proper due process complaint. And it is clear that the format of a parent's due process complaint is not a proper basis on which to deny a resolution meeting to which the parent is entitled by law. 20 U.S.C. § 1415. But even if there was something deficient about a particular due process complaint that your office reviewed, it would make no difference. IDEA provides that a due process complaint notice "shall be deemed to be sufficient unless the party receiving the notice notifies the hearing officer and the other party in writing that the receiving party believes the notice has not met the requirements" of the statute. 20 U.S.C. § 1415. In each of the cases involved, the District had no difficulty understanding the parental challenge. And, in any event, at the resolution meeting stage of the process, no hearing officer has yet been assigned to the matter, so there would be no one to whom the sufficiency of the complaint could be raised under the regulations. Finally, you object to the fact that, in some instances, only one District representative attends resolution meetings and signs resolution agreements on behalf of ERCSD. There is no legal basis for your objection, and your letter cites none. In the case of ERCSD, both Art Jakubowitz and Dr. Elizabeth Cohen -- ERCSD's usual designees at resolution meetings -- also sit on the CSE. Both representatives are knowledgeable about each student's particular case. State and federal law are clear that the School District and the parent must agree to the attendees of any resolution meeting. 20 U.S.C. § 1415(f)(I); 34 C.F.R. § 300.510; 8 NYCRR § 200.5(j)(2)(i). If the School District and the parent agree that one representative is enough, and that no other members of the CSE are necessary to discuss the complaint, then no other CSE members may attend.
For each of the foregoing reasons, we believe that your challenges with respect to ERCSD's resolution meetings are lacking in merit, and should be reconsidered.
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James P. DeLorenzo January 14, 2013 Page 7
Resolution Agreements are in the District's Best Interests
Your letter's directive that ERCSD immediately cease negotiating resolution agreements to settle parental disputes is legally unsupportable. Moreover, the directive betrays a stunning insensitivity to the crushing financial consequences of such an instruction -- particularly on a school district that you know to be under severe financial duress. Ordinarily, ERCSD would not discuss publicly its settlement considerations, for fear of compromising likely future settlement negotiations. However, the very public nature of your accusations, and your conclusions that the District's resolution agreements are somehow financially irresponsible, requires a public response. Quite simply, resolution agreements often make financial sense, and are in the best interests of the District. And, had your office taken the time to consider the financial implications of the settlements it was reviewing, you would have seen that the District has been successful in limiting special education expenses by reaching resolution agreements that have saved the District millions of dollars each year. Indeed, if the District is required to comply with your corrective action directive, and is forced to litigate all parental challenges to CSE recommendations and related IEP disputes, the resulting costs will likely bankrupt the District. The cost of litigating a single IEP placement dispute to completion -- including attorneys' fees, the cost of an impartial hearing, administrative costs, the cost of appeals to the State Review Officer, through final resolution in a state or federal court, and the risk of liability for parents' attorneys' fees in the case of a loss -- can amount to hundreds of thousands of dollars. If required to litigate IEP disputes rather than settling them, ERCSD will be required to pay those substantial litigation costs in addition to whatever costs ERCSD will ultimately incur to provide special education services to the student, irrespective of whether ERCSD wins or loses the litigation. For just one example, in 2006, ERCSD litigated and lost a parent's IEP challenge which sought a placement in the Kiryas Joel School District. Attachment C, Stipulation of Settlement at 2, Pheifer ex. rel. T.R., v. East Ramapo Central School Dist.,7:10-cv06730-JFM (S.D.N.Y.). After prevailing in an appeal before the State Review Officer, the parents sought reimbursement of their attorneys' fees in the amount of $199,350.00. ERCSD was able to settle the attorneys' fees portion of the case for $99,550.00. Id. at 3. However, that cost was in addition to the District's cost to reimburse the parents for the Kiryas Joel placement that the parents had demanded, and in addition to the District's own attorney fee and other administrative costs incurred in litigating the case. ERCSD does not have hundreds of thousands of dollars to spare. The imposition of such a burden on the District for every parental challenge to a CSE recommendation makes no sense. Moreover, in many instances -- particularly in the 21 resolution meetings your office reviewed -- parents challenge the CSE recommendation and demand placement in a private school program that costs substantially less than the placement or programs
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James P. DeLorenzo January 14, 2013 Page 8 recommended by the CSE. For example, of the 21 resolution meetings your office reviewed, ERCSD agreed with parents to place 11 children for special education services in the Rockland Institute for Special Education ("RISE"). RISE is an approved special education school that, in ERCSD's experience, provides excellent services. Tuition at RISE is approximately $25,000 per year. A placement for similar services at a BOCES facility will cost ERCSD, on average, between $70,000 and $90,000 per year. Indeed, RISE tuition is less even than the $31,416 per capita cost to the District of providing services to students with special needs in the ERCSD public schools. Cost savings from less expensive non-public school placements, and avoidance of costly litigation, save millions of District dollars that are needed desperately for other programs. It is also worth noting many of the 21 children for which a resolution meeting was held for the 2012-2013 school year were already attending special education classes in a non-public school. Under IDEA's pendency provisions, even if ERCSD opted to litigate a parent's IEP objections, the child would be entitled to stay in the current placement and ERCSD would have to continue paying tuition during the pendency of the litigation, including appeals. Even a most cursory cost-benefit analysis of resolution agreements will yield the undeniable conclusion that, in most cases, settlement makes far more economic sense than litigation. You have also raised the objection that special education placements pursuant to resolution agreements may not result in a student being placed in the least restrictive environment ("LRE"). We think you will agree that the LRE analysis must be made on a case by case basis. But, LRE is not the controlling factor where, to resolve a dispute, parents and the District agree to a placement that (i) serves the interests of the District, (ii) provides an appropriate education for the student, (iii) respects parents' input and is necessary to obtain parental consent, and (iv) results in substantial cost savings to the District. See 34 C.F.R. § 300.300(b)(1) (school district "must obtain informed consent from the parent of the child before the initial provision of special education and related services to the child."). Indeed, the courts have recognized that "[w]hile mainstreaming is an important objective, ... the presumption in favor of mainstreaming must be weighed against the importance of providing an appropriate education to handicapped students." Briggs v. Board of Educ. of State of Conn., 882 F.2d 688 (2d Cir. 1989); P. ex rel. Mr. and Mrs. P. v. Newington Bd. of Ed., 546 F.3d 111, 120 n.4 (2d Cir. 2008) (noting that courts consider "the costs of the supplementary aids and services necessary to maintain the child in the regular-classroom environment" as part of the LRE analysis). And other courts have explicitly recognized that the cost of mainstreaming is a relevant consideration in determining whethera school district has complied with the LRE mandate. Oberti v. Bd. of Educ., 995 F.2d 1204, 1218 n. 25 (3d Cir.1993); Daniel R.R. v. Bd. of Educ., 874 F.2d 1036, 1048 (5th Cir.1989); Sacramento City Unif. School Dist., Bd. of Educ. v. Rachel H. ex. rel. Holland, 14 F.3d 1398, 1404 (9th Cir. 1994). "These circuits' LRE tests acknowledge the fiscal reality that school districts with limited resources must balance the needs of each disabled child with the needs of the other children in the district." L.B. ex rel. KB. v. Nebo School Dist., 379 F.3d 966, 977 (10th Cir. 2004).
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James P. DeLorenzo January 14, 2013 Page 9 Although ERCSD has not hesitated to pay substantial costs to provide a FAPE to a student when recommended by the CSE and approved by the State, the cost of special education is a major drain on the District's finances, and imperils the District's ability to provide mandated services to all of the District's students, both public and private. Anything ERCSD can do to reduce its special education financial burden while still living up to its special education obligations -- including satisfaction of parental concerns and wishes -- should be embraced rather than enjoined. Similar concerns motivate ERCSD's resolution agreements with parents that result in placements in the Kiryas Joel school system for the provision of special education services in a bilingual setting. In ERCSD's view, parental preferences for their children to be educated in a bilingual setting are not facially unreasonable, and the benefits and cost savings of expeditiously settling such disputes serves the legitimate interests of the District, the students, and their parents. 4
Your letter purports to impose upon ERCSD four required corrective actions. Each is addressed below. 1. You have required ERCSD to continue submitting paper applications for approval for State reimbursement for private school placements. This process is inconvenient, wastes time and resources, and we do not understand why it is required as an "enforcement action." Moreover, the unnecessary use of paper applications has resulted in significant delays and inconsistency in the State's responses to the District's applications for reimbursement. Nevertheless, while ERCSD disagrees with your conclusions, and expects that you will promptly provide the specific records that your office has determined lack the required documentation so that appropriate amendments or supplementation may be made, ERCSD will continue to submit paper applications for State reimbursement. 2. You purport to require ERCSD to "immediately cease and desist its practice of routinely allowing one District representative to unilaterally determine the placement for students with disabilities and override the CSE LRE placement recommendations." You further purport to require ERCSD to comply with the regulatory dispute resolution processes, and to ensure that CSE recommendations are implemented. This directive is internally inconsistent, and appears to be based on a false premise. ERCSD already complies with the statutory resolution process. As explained above, ERCSD does not allow any representative to "unilaterally" determine any student's placement and "override" the CSE. The resolution agreements your office reviewed are bilateral agreements between the District's authorized representatives (who also are members of the CSE), and
As an aside, your letter's characterization of Kiryas Joel as not being LRE is wrong. Kiryas Joel is a public school, and is not a segregated facility for special needs children.
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James P. DeLorenzo January 14, 2013 Page 10 parents. Resolution agreements are also subject to the approval of a majority of the Board of Education. School Districts are statutorily authorized to resolve parental IEP challenges, and to agree with parents to amend a student's IEP in whole or in part, without involvement of the CSE. We do not believe that your office has authority to override a Board of Education's broad discretion to resolve parental challenges to recommendations of the CSE. 3. You have required the CSE to review the IEPs of all students in private or out of district placements for the provision of Yiddish/English bilingual programming, and to submit a plan for developing in-District programs to meet the needs of such students. The law already requires the CSE to periodically review all IEPs, and the CSE will continue to fulfill its mandate. ERCSD would like to discuss with your office the establishment of high quality and cost-effective Yiddish/English bilingual programming in the District, designed to meet the special education needs of District students. ERCSD would be grateful for any technical assistance your office can provide for the development of such a program.
4. You have required ERCSD to post to its website a Notice to the Community summarizing the findings of non-compliance related in your letter. Your direction does not specify when ERCSD must post the Notice. Because ERCSD disputes the accuracy of your findings of non-compliance for the reasons stated above, ERCSD declines to post the Notice unless and until you confirm that your letter constitutes a final agency action, and/or that action is upheld in court.
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James P. DeLorenzo January 14, 2013 Page II For all of the foregoing reasons, ERCSD disagrees with the findings, conclusions and directives of your December 19 letter. We urge you to reconsider. And, in any event, we again request the courtesy of a prompt response to the opening questions in this letter regarding whether your letter is intended to be final agency action. Should you require further explanation of the District's position on any of the issues addressed in this letter, please let me know. I look forward to hearing from you.
David . Butler
Dr. John King, Commissioner Ken Slentz, Assistant Commissioner Jacqueline Bumalo Sean Dwyer East Ramapo CSD Board of Education Arthur Jakubowitz Dr. Elizabeth Cohen Dr. Joel Klein, Superintendent
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