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Decision No. 16,241

Appeal of MICHAEL MULGREW, as President of the UNITED FEDERATION OF TEACHERS, Local 2, American Federation of Teachers, AFL-CIO, THE NEW YORK STATE CONFERENCE OF THE NAACP, THE ALLIANCE FOR QUALITY EDUCATION, and HELENA CLAY from action of the Board of Education of the City School District of the City of New York, Joel I. Klein, as Chancellor of the City School District of the City of New York and the Democracy Preparatory Charter School regarding school utilization.

Decision No. 16,241

(June 8, 2011)

Stroock & Stroock & Lavan LLP, attorneys for petitioners, Alan M. Klinger, Esq., of counsel

Adam S. Ross and Carol L. Gerstl, Esqs., co-attorneys for petitioners

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education and Chancellor, Emily Sweet, Esq., of counsel

Pillsbury Winthrop Shaw Pittman LLP, attorneys for respondent Democracy Preparatory Charter School, David A. Crichlow and Tameka M. Beckford-Young, Esqs., of counsel

KING, Jr., Acting Commissioner.--Petitioners challenge actions of the City School District of the City of New York and Joel I. Klein,[1] as Chancellor of the City School District of the City of New York (“DOE respondents”), relating to the co-location of Democracy Preparatory Charter School (“Democracy Prep”) (collectively “respondents”) in a public school building during the 2010-2011 school year.  The appeal must be dismissed.

Democracy Prep is a charter school formed pursuant to Article 56 of the Education Law.  In the 2008-2009 school year, when Democracy Prep served students in grades six through eight, it operated at a private facility located in Harlem.  Democracy Prep’s enrollment was expected to outgrow this facility, so it approached the New York City Department of Education (“DOE”) about the possibility of co-locating some students in a public school building.  As a result, in February 2009 DOE announced that Democracy Prep would be given four to six classrooms in the M197 building in Community School District 5 (“M197 building”) for the 2009-2010 school year.[2]  Also located in the M197 building is John B. Russworm, P.S. 197 (“P.S. 197”), a public school currently serving students in grades pre-kindergarten though five.

In the 2009-2010 school year, Democracy Prep operated from its private facility and the M197 building, where it co-located its sixth grade with P.S. 197.  In June 2010, DOE notified the principal of P.S. 197 that Democracy Prep would remain in the M197 building for the 2010-2011 school year.  Democracy Prep was given four additional classrooms in the building and currently serves students in grades six and seven there.  This appeal ensued.[3]

Petitioners contend that the decision to allow Democracy Prep to remain in the M197 building during the 2010-2011 school year and to give it additional classroom space constitutes an extension and expansion of its co-location with P.S. 197 and is a “significant change in school utilization” within the meaning of Education Law §2590-h(2-a).  Petitioners, therefore, maintain that DOE respondents were obligated to comply with certain procedural requirements set forth in Article 52-A of the Education Law, as amended by Chapter 345 of the Laws of 2009 (“2009 amendments”), including the requirements of Education Law §2590-h(2-a),[4] prior to this “extension and expansion,” but claim that they failed to do so.  Petitioners seek a declaration that the DOE respondents’ failure to comply with the 2009 amendments was arbitrary and capricious.   In addition, petitioners seek an order prohibiting the DOE respondents from “unilaterally continuing to significantly [change] the utilization of M197” and requiring them to “comply with their obligations under Article 52-A.”

DOE respondents do not dispute that the 2009 amendments were not complied with in this instance, but argue that they were not required to do so.  Specifically, they contend that the decision announced in February 2009 to allow Democracy Prep to co-locate with P.S. 197 was intended to effectuate an indefinite co-location, and that Democracy Prep’s “continued presence” in the M197 building in the 2010-2011 school year was merely a “continuation” of a co-location that originated prior to the June 30, 2009 effective date of the 2009 amendments.  In addition, and with respect to classroom space, they assert that at the time of the initial decision to co-locate Democracy Prep with P.S. 197, it was “anticipated” that additional rooms in the M197 building - beyond those provided for the 2009-2010 school year - would be available for the charter school’s use in the future.  Therefore, DOE respondents argue that the 2009 amendments do not apply to the “ancillary decision, post amendment” to permit Democracy Prep to continue co-locating with P.S. 197 and serve additional grades in the M197 building.  In addition, respondents contend that petitioners’ appeal is moot.  Finally, Democracy Prep contends that the petition fails to state a cause of action against it.

I will first address petitioner’s reply and memoranda of law.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  Therefore, while I have reviewed petitioners’ reply and memoranda of law, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in respondents’ pleadings.

In addition, by letter dated February 22, 2011, DOE respondents requested permission to submit an additional affidavit.  Petitioners do not explicitly oppose this request, but ask that I also consider a responding letter dated March 4, 2011 (“March 4 letter”).  DOE respondents’ additional affidavit contains information that was both not fully available until after the submission of its answer and is directly related to issues raised in this appeal.  Therefore, it is accepted for consideration.  With respect to petitioners’ March 4 letter, however, I find that it raises claims not included in their petition.  While section 276.5 of the Commissioner’s regulations permits the submission of additional evidence, it cannot be used to add new claims against respondents for which notice has not been provided (seee.g.Appeal of D.W. and N.W., 50 Ed Dept Rep __, Decision No. 16,144; Appeals of Cass, et al., 46 id. 321, Decision No. 15,521).  Accordingly, while petitioners’ March 4 letter is accepted, to the extent that it raises new claims, I will not consider them.

Finally, DOE respondents submit a letter dated March 8, 2011 in response to petitioners’ March 4 letter.  Petitioners do not object.  Accordingly, I will consider DOE respondents’ March 8 letter to the extent that it responds to those portions of petitioners’ March 4 letter that also have been accepted.

Democracy Prep argues that the appeal should be dismissed against it for failure to state a cause of action.  Specifically, Democracy Prep contends that none of petitioners’ allegations are predicated on its actions.  However, a determination in petitioners’ favor could adversely affect Democracy Prep, making it a necessary party to the appeal (seeAppeal of Porter, 50 Ed Dept Rep __, Decision No. 16,196; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Accordingly, petitioners were directed, pursuant to §275.1 of the Commissioner’s regulations, to join Democracy Prep as a party, and I decline to dismiss the petition as against it.

However, the appeal must be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of a Student with a Disability, 48 Ed Dept Rep 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937; Appeal of Embro, 48 id. 204, Decision No. 15,836).  Here, petitioners seek an order directing DOE to “comply with their obligations under Article 52-A” and prohibiting them from “unilaterally continuing to significantly [change] the utilization of M197.”  The record indicates, however, that DOE respondents have determined to “extend and expand” Democracy Prep’s co-location with P.S. 197 beyond the 2010-2011 school year, and that they are treating that proposal as a “significant change in school utilization” under Education Law §2590-h(2-a) and have prepared an educational impact statement (“EIS”) relating thereto.  Accordingly, insofar as petitioners demand compliance with the procedures set forth in Article 52-A, as amended, and specifically with Education Law §2590-h(2-a), their request for relief is moot.[5]

Petitioners, however, argue that, despite DOE respondents’ treatment of Democracy Prep’s future co-location with P.S. 197 as a “significant change in school utilization” under Education Law §2590-h(2-a), an exception to the mootness doctrine applies and a justiciable controversy remains.  An appeal which is moot, nevertheless, will be entertained where the controversy presented is of a character which is likely to recur not only with respect to the same parties, but with respect to others as well (seee.g.Appeal of Muench, 45 Ed Dept Rep 508, Decision No. 15,397).

However, in this matter the only controversy clearly raised is a factual one; namely, whether the decision to co-locate Democracy Prep in the M197 building and allow it to expand in the 2010-2011 school year was made before or after the effective date of the 2009 amendments.[6] As noted above, DOE contends that this decision predated the 2009 amendments while petitioners contend that it did not.  I find that this is not a case in which an exception to the mootness doctrine is warranted, as it raises an issue which is necessarily fact specific and can be addressed in a subsequent appeal (seee.g.Appeal of N.C., 40 Ed Dept Rep 445, Decision No. 14,522).  In addition, I am unable to determine from this record how likely, if at all, this issue is to recur.  The issuance of an EIS relating to the co-location of Democracy Prep in M197 renders this appeal moot, and it must be dismissed.

Moreover, the appeal must be dismissed to the extent it requests declaratory relief.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310 (Appeal of a Student with a Disability, 48 Ed Dept Rep 411, Decision No. 15,899; Appeal of Waechter, 48 id. 261, Decision No. 15,853).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

END OF FILE.

[1] Dennis M. Walcott is currently the Chancellor of the New York City Department of Education.

[2] The record reflects that Democracy Prep utilized six classrooms in the M197 building during 2009-2010 school year.

[3] Petitioners commenced this appeal on August 24, 2010, and thereafter, by directive pursuant to §275.1 of the Commissioner’s regulations, joined Democracy Prep as a respondent.

[4] Specifically, petitioners assert that DOE failed to comply with the 2009 amendments in that they failed to complete an Educational Impact Statement (“EIS”), provide appropriate notice of the EIS to certain required groups and to the public, and failed to conduct required hearings.

[5] In their answer, DOE respondents initially asserted that they “planned” on issuing an EIS and complying with the procedural requirements of Education Law §2590-h(2-a) in the future if they proposed to site Democracy Prep in the M197 building beyond the 2010-2011 school year.  In response to this, petitioners argued that this “promise” was not sufficient to render the appeal moot.  Since submitting its answer, however, DOE prepared, published and filed an EIS regarding a proposal to “extend and expand” Democracy Prep’s co-location in the M197 building.  Accordingly, it appears that DOE is engaged in its promised actions, and I, thus, need not address whether DOE’s “plan” alone would have rendered the appeal moot.

[6] Petitioners argue that DOE respondents’ “treatment” of Democracy Prep’s future co-location as a “significant change in school utilization” amounts to a refusal to recognize that any extension and expansion of its co-location with P.S. 197 actually is a “significant change in school utilization.”  However, based on DOE respondents’ pleadings, I am unable to conclude that that is their position.  Likewise, I am not able to find that petitioners have raised an issue regarding whether the DOE respondents were/are required to comply with the 2009 amendments regardless of whether its decision to co-locate Democracy Prep with P.S. 197 was, in fact, made before the effective date of the 2009 amendments.  Accordingly, I need not address either of these issues.