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In a letter delivered to the Portsmouth School committee yesterday and released to the media today, an attorney representing a group of Elmhurst parents fighting the school closing has threatened action in Superior Court.

Those identified in the letter — Jonathan Harris, Edward Lopes, Detcha Malone, Michael Daly and additional parents — claim there was a procedural error in the decision to close the school. "Pursuant to RI Admin Code 21-2-41:1.14, entitled 'Closing Schools,' 'A district must notify RIDE in writing six months prior to the sale, lease, demolition, or other removal from service of any school facility in the district's jurisdiction," says the letter to School Committee chair Dick Carpender from attorney Christopher Hultquist of Darrow Everett LLP. "[M]y clients are planning on seeking relief in Newport County Superior Court to obtain a declaration that the procedure by which the School Committee intends to execute its plan violates carefully prescribed regulations enacted by the Rhode Island Department of Education (RIDE) concerning the process that a school department must follow before closing a school."

Contacted by e-mail, Jon Harris made this statement to hard deadlines: "It is apparent at this time that the Portsmouth School Administration and Portsmouth School Committee did not follow proper procedure in filing the statutory six month notice prior to closing Elmhurst School. As such, the appropriate direction of the school committee would be to immediately vote to rescind the plan to close Elmhurst School."

The regulation cited by the parents' attorney, which is on the last page of a 26-page RIDE document called "RIDE SCHOOL CONSTRUCTION REGULATIONS," is followed immediately by a mechanism for seeking variances, RIDE 1.15 WAIVER: "Any request for a waiver of any provision of these regulations shall be governed by the 'Protocol for Granting Variances to Regulations of the Board of Regents or Regulations of the Commissioner' (May 1993)."

I contacted Elliot Krieger and David Abbott in the Commissioner's office at RIDE to seek clarification on whether such variances were possible in these circumstances.

Elliot Krieger, Office of the Commissioner, said, "I will leave it to David to weigh in on whether a variance is required; however, the regulation you cite is the part of the school-construction regulations, and it has more to do with whether the state is paying "housing aid" for the school building. The intent is to ensure that the state is not continuing to pay for construction costs, renovations, interest, etc. on any school building no longer in use. Decisions on school closing remain local decisions and do not need approval from the state."

At this evening's meeting, the school committee announced that they have retained the law firm of Brennan, Recupero, Cascione, Scungio & McAllister, LLP to represent the district in the Elmhurst appeal.