We are met here with a question of educational administration which can rival, mutatis mutandis, the situation with which the courts were confronted in Brown v Board of Educ. (347 US 483, 349 US 294) and its progeny.
With the deficiency in educational achievement at JHS 123, as outlined in the opinion of the majority, it was incumbent upon the Chancellor and the Board of Education, not just to set standards and goals, but to take action for improvement with "all deliberate speed”. Instead, the school was closed.
Even if one were to equate the school with a bookstore selling sexually explicit material (see, People ex rel. Arcara v Cloud Books, 68 NY2d 553, per Wachtler, Ch. J), there would still have to be an examination of less restrictive corrective measures.
Should the administration and/or the teachers be changed? Should there be enhanced remedial opportunities for the students? It is arbitrary and capricious, if not simply ludicrous, to close the school. (See, People v Macbeth Realty Co., 63 AD2d 908.) One cannot have a bill of attainder against a building. The building is not contended to be structurally unsound; it is not alleged to be asbestos-ridden.
While one can accept the conclusion of the Chancellor, in the confused state of the facts, as to the substandard performance of the students at the school, one cannot fault the building. Moreover, under any view of the evidence, there are good students at the school who are being punished by being transferred from their neighborhood, because of a default which is not of their making.
*288No question of "educational wisdom” is here postulated (see, New York City School Bds. Assn. v Board of Educ., 39 NY2d 111) nor is there any infringement of professional pedagogic judgment (see, James v Board of Educ., 42 NY2d 357). To close the school is to abdicate educational responsibility. Educational policy is not made in a vacuum. To set educational standards and curriculum requirements is one thing, but no good is achieved by nihilism.
The judgment of the Supreme Court (Katz, J.) did not, as the majority opinion would have it, interfere with an educational determination. It set aside a nullity, and left a school for which policy can be made.
The judgment appealed from, vacating the Chancellor’s directive, should be affirmed.
Milonas and Smith, JJ., concur with Sullivan, J.; Kupferman, J. P., dissents in an opinion.
Judgment, Supreme Court, Bronx County, entered on September 11, 1987, reversed, on the law, the petition denied, the cross motion to dismiss granted and the Chancellor’s directive reinstated, without costs and without disbursements.