Appeal of ANECIA MCCALL, on behalf of her daughter RAEAN COLLYMORE, et al.,* from action of the New York City Department of Education and the Explore Charter School regarding school utilization.

Decision No. 16,257

(July 14, 2011)

Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Mark Toews, Esq., of counsel

Law Offices of Eric J. Grannis, attorneys for respondent Explore Charter School, Eric J. Grannis, Esq., of counsel

KING, JR., Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the Explore Charter School (“Explore,” collectively “respondents”) in a public school building.  The appeal must be dismissed.

Petitioners are the parents of children who attend school at M.S. 002 Parkside Preparatory Academy in Brooklyn, New York (“M.S. 002”).  M.S. 002 serves students in grades six through eight and is located in the K002 building in Community School District 17 (“K002 building” or “the building”).  Also located in the K002 building is 75K141, a public “District 75 school” that serves students with disabilities in grades pre-kindergarten through eight at multiple locations in Brooklyn, including the K002 building (“P141K”).   During the 2010-2011 school year, M.S. 002 served approximately 402 students and P141K served 93 students with disabilities in grades six through eight.  Also located at K002 is Beacon, a community-based organization that offers after-school enrichment programs.

During the 2010-2011 school year, Explore served 476 students in grades kindergarten through eight and was temporarily located in K884, a DOE-leased building in Community School District 17.

On March 1, 2011, DOE issued an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) (collectively referred to as the “March 1 EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3).  Among other things, the March 1 EIS proposed that, starting in September 2011, M.S. 002, P141K and Explore would be co-located in the K002 building.  As part of the proposal, 75K141 would reorganize and shift certain services to its other locations in Brooklyn, thereby reducing enrollment at P141K to approximately 67-72 students in the 2011-2012 school year.  On April 4, 2011, a public hearing (the “April hearing”) was held regarding the March 1 EIS.

On April 12, 2011, DOE issued an amended EIS and BUP (collectively referred to as the “April 12 EIS”).  In its verified answer, DOE explains that it did so after receiving public comment and in light of the Commissioner’s decision in Appeal of Espinet, et al. (50 Ed Dept Rep, Decision No. 16,212).  According to DOE, the revised BUP includes additional information with respect to the proposed shared space plan and Beacon’s after-school programs.  On May 6 and 16, 2011, public hearings were held regarding the April 12 EIS, and on May 18, 2011, the Panel for Educational Policy (“PEP”) approved the proposal.  This appeal ensued.

Petitioners argue that DOE failed to comply with the notice and hearing requirements of Education Law §2590-h (2-a) in several respects.  Although the petition is not entirely clear, petitioners also raise several objections to the April 12 EIS, including that it:  (1) was based on inaccurate enrollment data; (2) inappropriately relied on New York City Building Code (“Building Code”) requirements, which allegedly fail to account for “the needs of children in an educational setting”; and (3) failed to properly consider the impact of the proposed co-location on affected students, including students with disabilities and English language learners (“ELLs”).  Petitioners further allege that the co-location will result in overcrowding and unsafe conditions at K002, particularly in the cafeteria and hallways.

Petitioners also argue that DOE violated Education Law §2853(3)(a-3)(C) because the BUP included with the April 12 EIS failed to provide an adequate justification of the feasibility of the proposed allocation of classrooms and shared resources and spaces between the charter and non-charter schools and how such proposed allocations and shared usage would result in an equitable and comparable use of building K002.  Petitioners specifically contend that DOE failed to consider M.S. 002’s need for classroom space for testing accommodations, language labs for ELLs, and for cafeteria purposes for students with food allergies.  Petitioners further claim that DOE’s analysis of the use of shared spaces is “flawed” and “distorted” because it assumes that students will use shared spaces starting at 7:20 a.m., prior to the actual start of the school day.  Petitioners allege that K002 is not designed to serve students in kindergarten through grade three and that DOE has not produced plans to equip K002 for such use and that DOE “failed to discuss the issue of including young kindergarteners and over-age middle school students ... in the same shared spaces.”  Petitioners request annulment of the determination to co-locate Explore in the K002 building.

Respondents generally deny petitioners’ allegations and contend that DOE substantially complied with all statutory requirements.

Initially, I must address two procedural issues.  In a postscript to a July 8, 2011 letter (“postscript”), petitioners’ attorney objects to my consideration of Explore’s verified answer.  The record indicates that, on June 30, 2011, in accordance with Commissioner’s regulation §276.11(e)(2), Explore served its answer on petitioners by overnight delivery, using the address petitioners’ attorney listed in the petition in the instant matter.  In his postscript, petitioners’ attorney explains that he moved to a new office at 5:00 p.m. on July 1, 2011 and asserts that “[f]or some reason, the delivery company was told, on July 1, 2011, to redeliver [Explore’s answer] to my home,” even though he apparently did not move to his new office until after delivery was attempted.  Petitioners’ attorney argues that “since we had absolutely no opportunity to review these papers before we replied, the hearsay contents therein should not be considered.”  Because the record indicates that Explore served its answer on June 30, 2011 via overnight mail using petitioners’ attorney’s address then on file, I find no merit to petitioners’ objections and have accordingly considered Explore’s verified answer.

By letter dated July 8, 2011, DOE objects to petitioners’ reply documents, which consist of a “reply memorandum of law,” an affidavit of a summer associate at petitioners’ attorney’s law office, and exhibits.  A reply in a charter school co-location appeal must be served within two business days of service of the answer (8 NYCRR §276.11[e][1]).  The answers in this appeal were served on June 30, 2011 in accordance with Commissioner’s regulations (8 NYCRR §276.11[e][2]).  While the record indicates that petitioners served their reply documents on Explore via overnight mail on July 5, 2011, petitioners did not serve such documents on DOE until July 6, 2011, outside the required time frame.  In a charter school co-location appeal, the Commissioner, in his sole discretion, may excuse the failure to timely serve a reply “for good cause beyond the control of the requesting party” (8 NYCRR §276.11[e][1]).  Petitioners’ attorney explains that he attempted to personally serve the documents at DOE’s attorney’s office at 6:45 p.m. on July 5, 2011, but DOE’s attorney had already departed and the building’s security guard would not accept service.  Petitioners’ attorney indicates that he then called DOE’s attorney, who agreed that he would accept service the next morning.  However, petitioners’ attorney fails to explain why he did not use overnight mail or e-mail as provided in the Commissioner’s regulations.  I find the excuse offered by petitioners to be insufficient and decline to excuse the delay.  Accordingly, the reply documents are untimely and have not been considered.

In addition, 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).  Petitioners’ reply documents contain information that should have been set forth in the petition and, for that additional reason, I decline to accept them.

Education Law §2590-h(2-a) was added in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a) requires the Chancellor of the City School District of the City of New York (“Chancellor”) to prepare an EIS for any proposed school closing or “significant change in school utilization” for any public school located within the City School District.  Education Law §2590-h(2-a) also prescribes notice and filing requirements for such statements.  As the Commissioner concluded in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review under Education Law §2590-h(2-a) is substantial compliance, and on the record before me I find that DOE substantially complied with the statute’s notice and filing requirements (seeAppeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).

Petitioners argue that DOE failed to comply with Education Law §2590-h(2-a)(c), which requires that the EIS be “made publicly available ... at least six months in advance of the first day of school in the succeeding school year.”  Petitioners allege that, “[b]y implication,” such provision also requires that the EIS “be made available to the non-English speaking parents in the requisite languages if their native languages represent a significant percentage of the school’s population.”  According to petitioners, DOE did not properly publish the EIS until May 5, 2011 – the date DOE allegedly published the EIS in Haitian Creole and Spanish – and, therefore, failed to provide public notice of the EIS within six months of the first day of school in the 2011-2012 school year.  I find no merit to this contention.  Contrary to petitioners’ conclusory assertions, Education Law §2590-h(2-a) contains no specific requirement that translations of an EIS be simultaneously published and filed with the EIS to meet the statutory deadline and petitioners cite no authority for their position.  DOE appropriately made any necessary translations available and no petitioner alleges that he or she was denied an opportunity to provide comment on the proposal due to lack of translation.[1]

Petitioners also maintain that the April 12 EIS was required to be filed at least six months in advance of the first day of school in the 2011-2012 school year.  I disagree.  As noted above, Education Law §2590-h(2-a)(c) requires that an EIS be filed “at least six months in advance of the first day of school in the succeeding school year.”  However, Education Law §2590-h(2-a)(d-1) authorizes the Chancellor to substantially revise a proposed school closing or significant change in school utilization so long as a revised EIS is published and filed in the same “manner” as a new one.  As the Commissioner noted in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), time and manner are generally two different things, and treating them otherwise here would only discourage the making of revisions in response to public comments, which would be contrary to the statute’s intent.  Accordingly, I find that the April 12 EIS was not subject to the same six-month requirement as the initial March 1 EIS (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).

Petitioners also claim that the May 16, 2011 hearing was untimely, but fail to clearly articulate their rationale for such claim.  For example, petitioners cite the 30- to 45-day timeline in §2590-h(2-a)(d), but they appear to assert it in relation to the April 12 EIS, to which it does not apply.  Moreover, for the reasons discussed above, I find no merit to petitioners’ contention that the April 12 EIS was not properly published until Spanish and Haitian Creole translations were made available on May 5, 2011.  In any event, to the extent that petitioners attempt to challenge the hearing timeline requirements of Education Law §2590-h(2-a) in relation to any necessary translations, petitioners do not allege that any petitioner required such a translation or was denied an opportunity to comment at the hearing.

Petitioners also argue that, even if the EIS was made publicly available on March 1, 2011, the May 16, 2011 hearing at M.S. 002 was untimely in violation of Education Law §2590-h(2-a)(d).  According to petitioners, in “accordance with the March 1 date, the public hearing must have been held between March 31, 2011 and April 15, 2011.”  However, the May 16 hearing at issue pertained to the revised April 12 EIS rather than the initial EIS, for which a hearing was held on April 4, 2011.  As respondents correctly note, Education Law §2590-h(2-a)(d-1) requires that, where, as here, a revised EIS is filed, “[n]o sooner than fifteen days following the filing of such revised [EIS], the chancellor ... shall hold a joint public hearing ... at the school that is subject to the proposed school closing or significant change in school utilization” (emphasis added).  There is no specific time frame prescribed within which a hearing must be held following revision of an EIS.  In this case, the hearing was held at M.S. 002 on May 16, 2011, more than 15 days after the revised EIS was filed on April 12.  Accordingly, petitioners’ claim has no merit.

     On the merits, petitioners allege that the April 12 EIS and BUP are deficient in several respects.  Education Law §2590-h(2-a)(b) requires that an EIS include, among other things:

Further, after a public school building has been selected for a proposed co-location, Education Law §2853(3)(a-3) requires that DOE develop a BUP that must be included within the EIS.  At a minimum, the BUP must include the following information:

The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115).  In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief (8 NYCRR §275.10; Appeal of Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners appear to argue that, because DOE initially considered co-locating Explore’s fifth through eighth grades, rather than kindergarten through eighth grade as described in the EIS, it “deceived” the M.S. 002 community and acted in “bad faith” during the co-location process.  I find no merit to this contention.  As explained above, the record supports a finding that DOE has substantially complied with the statutory requirements regarding the proposal process and, other than their conclusory assertions, petitioners have submitted no evidence to the contrary.  Indeed, DOE explains that, while it initially considered co-locating only Explore’s fifth through eighth grades at K002, it informed M.S. 002’s administrators and community of its proposal to co-locate all of Explore’s grades via telephone call to the principal on or about February 8, 2011 and at a Community Education Council meeting on February 15, 2011 – both of which occurred prior to the publication of the March 1, 2011 EIS, which fully described such proposal.  DOE further states that such proposal was also discussed at a parent meeting on March 3, 2011.  In any event, there is no statutory requirement that DOE engage in such consultation prior to issuing an EIS (seeAppeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).  Accordingly, I find that DOE provided sufficient information to the public to inform their comments on the proposal and that the record contains no evidence that DOE acted in bad faith in developing the EIS.

Petitioners contend that the data contained within the EIS was flawed in several respects and that, as a result, DOE failed to properly analyze the impact of the proposed co-location on M.S. 002 students.  First, petitioners argue that the enrollment projections contained in the EIS are “inaccurate” because they were based on enrollment data collected in October 2010 (402 students), rather than on “current” enrollment data (416 students).  To support their contention, petitioners have produced a DOE “register” dated May 20, 2011, which is well after the EIS was developed and published and the public hearings had concluded.  Moreover, the EIS specifically states that its enrollment data was obtained from the 2010-2011 audited register.[2]  While petitioners may disagree with the source of DOE’s data and its calculations, the record contains no evidence that, DOE acted arbitrarily or capriciously in relying on such data.

In the EIS, DOE explains that K002 currently has a target utilization rate of 40 percent.  Petitioners argue that this number conflicts with the 39 percent rate contained in the 2009-2010 “Enrollment Capacity Utilization Report” (the “Blue Book”).  According to petitioners, “[t]his calls into question the accuracy of all the numbers contained in the EIS.”  However, the EIS explicitly states that the utilization rate reported therein may differ from that published in the Blue Book.  The EIS explains:

Blue Book enrollment includes Long Term Absences (“LTAs”), students who have been absent continuously for 30 days or more as of October 31st 2009.  The building capacity figures quoted [in the EIS] are consistent with the Blue Book.  However, the building enrollment figures referenced throughout this EIS and used in the calculation of utilization rates only include the number of students estimated to be regularly attending the school, and thus does not include LTAs.  This methodology is consistent with the manner in which the DOE conducts planning and calculates space allocations and funding for all schools.

Even if petitioners were correct in their assertion that the target utilization rate is actually 39 percent[3] – a mere one percentage point lower than the rate utilized by DOE – this would further support DOE’s position that K002 is severely underutilized and that, even after the co-location, will still be operating well below capacity.  Based on the record before me, petitioners have failed to establish that DOE’s data and calculations are inaccurate or in any way improperly affected its analysis of the proposal’s impact on affected students.

Petitioners also argue that DOE’s reliance on Building Code requirements is “not functionally applicable and creates an inequitable division of shared spaces and overcrowding, thus resulting in unequal treatment and harm to the education of hundreds of children.”  Specifically, petitioners note that the Building Code sets the cafeteria’s capacity at 460 students and argue that this “figure is not indicative of the actual capacity of the cafeteria when it is used as a cafeteria because the tables and chairs take up more space than in an ordinary room.”  According to petitioners, there are currently 17 tables in the K002 cafeteria which can accommodate approximately 238 students and there “is no room or practical space for the placement of additional tables.”

To the contrary, in an affidavit, DOE’s Deputy Executive Director of the Office of Portfolio Management (“deputy director”) explains that cafeteria capacity is determined by the New York City School Construction Authority based on guidance provided by the New York City Building Code and the New York City Fire Department.  The deputy director asserts that the cafeteria has a capacity of 460 students and that such number “is indicative of the actual capacity of the space while being used as a cafeteria.”  Moreover, contrary to petitioners’ assertions that the K002 cafeteria can fit only 17 tables, DOE notes that, on May 17, 2011, M.S. 002 requested that 10 additional cafeteria tables be provided to K002.  Other than their conclusory assertions, petitioners submit no evidence to the contrary.  Accordingly, I find that they have not carried their burden with respect to this claim.

Although not clearly articulated, petitioners also appear to challenge DOE’s calculation of minimum class and classroom sizes for both general education students and students with disabilities.  Petitioners assert that the State Education Department (“Department”) mandates classroom sizes and that K002 currently operates both regular and special education classrooms that have less than the required square footage.  Accordingly, petitioners reason, “[b]ecause the EIS assumes the maximum amount of students per room [28], it is unlikely with the co-location, [such class and/or classroom sizes] will be feasible.”  To support their contention, petitioners cite a July 2004 guidance document published by the Department regarding state building aid for public school districts and facilities aid for Boards of Cooperative Educational Services (“guidance document”).  While petitioners urge that the guidance document “requires” certain minimum classroom sizes, such document clearly explains:

For many years the method for determining the extent of eligibility for building aid of [sic] any project involving a new instructional facility or an addition to an existing instructional facility involved the calculation of State-rated capacity.  However, the public sector seemed to consistently misinterpret this label as meaning the number of students that could be placed in a particular classroom.  This calculated number actually represented one part of the equation used to determine the maximum expenditures for contracts and for incidentals upon which Building Aid would be computed.  In reality, it had little or nothing to do with the actual number of students served in each instructional space within the building.  To help clarify the misinterpretation, the [Department] decided to change that terminology from State-rated capacity to Building Aid Units.

In its verified answer, DOE also asserts that the standards described in the guidance document “are relevant only to qualifications for obtaining state financial aid.”  Other than their conclusory assertions, petitioners provide no evidence to support their position and I cannot conclude that they have carried their burden on this claim.

Although not entirely clear, petitioners appear to argue that the EIS is deficient because it fails to adequately address the impact of the proposed co-location on M.S. 002 students.  Petitioners generally challenge the EIS on the ground that it “fails to fully account for the spatial needs of [M.S. 002] students while stripping the school of resources that it uses for ELL ... and Special Education [sic] students.”

Education Law §2590-h(2-a)(b)(ii) requires that an EIS include “the impacts of the proposed school closing or significant change in school utilization to any affected students.”  The law does not specify the information that an EIS should include to portray the impact on students and DOE is afforded a “considerable measure of discretion in this regard” (Mulgrew v. Bd. of Educ. of the City School Dist. of the City of New York, 75 AD3d 412 [1st Dept 2010]).  Moreover, as noted above, the purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, et al., 50 Ed Dept Rep, Decision No. 16,115). 

In this case, the April 12 EIS and BUP discuss the capacity of building K002, stating that, while K002 has a target capacity of 1,238 students, it served only 495 students in 2010-2011, yielding an estimated utilization rate of 40 percent.  The EIS also explains that, after the proposed co-location, K002 would serve approximately 917-950 students, yielding an estimated utilization rate of 77 percent.  The EIS also clearly explains that, due to K002’s under-utilization, M.S. 002 “is currently using a large number of excess rooms in the building....  If this proposal is approved, M.S. 002 will lose a number of these excess classrooms and will need to operate closer to its baseline allocation of rooms pursuant to the Citywide Instructional Footprint.”

However, the EIS notes that “DOE does not anticipate that the reduction of classroom space will impact the availability of instructional programming at M.S. 002.  In addition, the DOE does not anticipate that this proposal would impact M.S. 002’s existing enrichment activities or partnerships.”  The EIS also states that:

[S]chool leaders are empowered to make decisions about how to utilize the space allocated to the school.  Each principal, therefore, must make decisions about how and where students will be served within the space allocated to the school.  The DOE, however, will provide support to the schools to ensure that the schools use the space efficiently in order to maximize capacity to support student needs and maintain appropriate delivery of special education and related services to students.

Based on the record before me, I find that the EIS adequately describes the impact of the co-location on M.S. 002 and its students and I find no merit to petitioners’ contention that co-location will render M.S. 002 “permanently unable to expand.” 

Petitioners also contend that the BUP is “vague” and “does not take into account the specific needs” of ELLs and students with disabilities.  For example, petitioners allege that the EIS “simply states that students will continue to receive their mandated services but never specifies how they will do this given the less [sic] number of rooms available.”  However, DOE denies these assertions and contends that the EIS “considers and accounts for the needs of both” groups of students.  Specifically, the EIS states that the proposed co-location would have no impact on the types of classes and mandated services afforded to ELLs and students with disabilities.  Moreover, the record indicates that part of DOE’s proposal includes the redistribution of certain special education services from P141K to 75K141’s other sites, thereby reducing P141K’s enrollment at K002.  Finally, the EIS notes that M.S. 002 offers bilingual Haitian Creole classes and states that such classes will not be impacted by the co-location.  Petitioners have offered no proof to contradict such statements in the EIS or to otherwise indicate that students with disabilities or ELLs would be adversely impacted by the use of space as set forth in the EIS.

Petitioners also appear to argue that the EIS and BUP fail to consider the impact of the co-location on Explore’s elementary school students, citing concerns over safety and K002’s ability to accommodate young students.  However, no petitioner has alleged that he or she is the parent of a student attending Explore.  Consequently, petitioners lack standing to raise this claim.  In any event, DOE explains that the co-located schools will largely operate in separate areas of the building “thereby minimizing hallway interactions between students of the various schools.”  The BUP also explains that each DOE school or campus has a School Safety Committee responsible for addressing safety matters and developing school safety plans and that “DOE expects and anticipates that [the co-located schools] will be able to work cooperatively in order to ensure the safety of their students.”  DOE also notes that Explore will be providing its own furniture and equipment suitable for students in the elementary grades and that K002’s bathrooms are equipped to accommodate younger students.  Petitioners provide no evidence to the contrary.

Petitioners also contend that the hallways in K002 are “uniquely narrow and curved and will become overcrowded after the co-location,” causing students to be late to class and thus impacting their education.  While DOE acknowledges that K002 contains hallways with arched ceilings, it explains that 345 out of the 478 Explore students who will be co-located in K002 will be served in compartmentalized kindergarten through grade five classes, and will not be moving from classroom to classroom throughout the day.  DOE explains that the co-located schools will occupy separate areas of the building – P141K will be located on the first floor, M.S. 002 will be located on the second floor and part of the third floor, and Explore will be located on the fourth floor and part of the third floor.  As a result, DOE explains that “there would be only an additional 133 Explore sixth through eighth grade students traveling in the hallways between classes, which would not cause overcrowding or unsafe conditions in light of the fact that the building would remain underutilized subsequent to the proposed co-location.”  In her affidavit, the deputy director also notes that petitioners’ argument is based on the assumption that M.S. 002 and Explore will “have the same schedule and will be transitioning between periods and classes at the same time.”  However, she explains that, because M.S. 002 and Explore have different start and end times for their school days, they will likely operate on different schedules.  Based on the record, I find that petitioners have failed to carry their burden on these claims.

With respect to petitioners’ challenges to DOE’s proposed allocation of shared spaces, I note that decisions on the allocation of space in a school building containing multiple schools are complex, with needs changing over time, as programs and enrollments change.  Such decisions necessarily involve pedagogical judgments and cannot reasonably be expected to be made with scientific precision.  For those reasons, such decisions, like decisions on school closings, must be left to the sound discretion of local school officials, in this case DOE.  Accordingly, I will not substitute my judgment for that of DOE in determining whether the allocation and shared use of space in a building usage plan result in equitable and comparable use of the building.  Absent proof that DOE’s determination lacked a rational basis, it will not be set aside (Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254; cf. Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).

Petitioners first allege that the BUP’s allocation of shared spaces is “flawed” and has been “distorted to minimize the impact” on students.  Pursuant to the BUP, M.S. 002 will have 17 hours of weekly access to the library and 16 hours of weekly access in each of the dance, media and home economics rooms.  Explore will have access to each of these shared spaces for 14 hours weekly.  The BUP explains that M.S. 002 is allocated more access to such spaces than Explore because M.S. 002 serves a greater number of middle school students.  The crux of petitioners’ challenge, however, is that the BUP “falsely represented the amount of time” that each school will have access to such spaces because it assumes that each school’s use of such spaces will begin at 7:20 a.m. – prior to the start of the school day.  I agree with petitioners that, generally, including time prior to the start of the school day as part of such allocations is improper.  However, DOE asserts that any alleged error is harmless for several reasons.  According to the deputy director, even if such spaces are not used prior to the start of the school day, petitioners have failed to establish that the remaining schedule is inequitable as M.S. 002 still will be allocated comparatively more time in each such space based on its greater middle school enrollment.  DOE also points out that both M.S. 002 and Explore can modify their schedules to utilize the same total number of hours allocated to each school in the BUP by shifting their use of such shared spaces to other times of the day.  Based on the record before me, petitioners have not established that DOE’s allocation of such shared spaces is inequitable and I find that the BUP satisfies the requirements of Education Law §2853(3)(a-3)(2)(B) and (C).

Petitioners also challenge DOE’s allocation of cafeteria use as inequitable in several respects.  Petitioners allege that the allocation of cafeteria time in the BUP is based on an erroneous description of M.S. 002’s current lunch schedule.  Petitioners also complain that the BUP reduces M.S. 002’s current time in the cafeteria and that the proposed lunch schedule for M.S. 002 (10:50 a.m. to 11:45 a.m.) forces those students to eat “earlier in the day,” which will “negatively impact [their] ability to focus later in the day.”  Initially, I note that, as the Commissioner concluded in Appeal of Litichevsky, et al. (50 Ed Dept Rep, Decision No. 16,254), a determination of equitable and comparable use does not necessarily require exact proportionality.  In this case, the BUP states that cafeteria time was allocated to each school based on projected enrollment, capacity of the cafeteria, current use and grade levels served.  The BUP also states that “it may be necessary to shorten or change some of the current times that have been allocated to each of the co-located schools in the shared spaces this year so that all students in the building can be accommodated in the following school year” and explains that each school will be able to accommodate all of its students in the cafeteria within the proposed allocation of time.  While DOE admits that the BUP’s description of M.S. 002’s current lunch schedule was based on inaccurate information, it explains that such error “does not materially affect the feasibility of the proposed lunchroom schedule.”  According to the BUP, M.S. 002 will be allocated “sole access” to the cafeteria from 10:50 a.m. to 11:45 a.m.  DOE also notes that because M.S. 002’s projected 2011-2012 enrollment of 370-400 students is less than the cafeteria’s capacity of 460 students, M.S. 002 has a “variety of viable options” for scheduling its lunch period(s) within the time allotted.  The BUP explains that the proposed schedule is “equitable and comparable based on the fact that all students should be able to eat lunch between 10:50 a.m. and 1:00 p.m.”  Accordingly, I find that the BUP sufficiently addressed the requirements contained in Education Law §2853(3)(a-3)(2)(B) and (C) with respect to the cafeteria.

Petitioners also claim that the BUP lacks sufficient explanation regarding the allocation of cafeteria space with respect to existing students with disabilities.  I find no merit to petitioners’ objection.  Initially, I note that no petitioner alleges that he or she is the parent of a student with a disability served by P141K.  Consequently, I again find that petitioners lack standing to raise claims on their behalf.  In any event, the BUP clearly states that both Explore and P141K are allocated more time in the cafeteria than M.S. 002 “[g]iven the unique needs of [P141K’s] students” and because Explore “is projected to serve a larger number of students and more grade levels than M.S. 002 and [P141K].”  Likewise, I find no merit to petitioners’ assertions that the plan is “inappropriate because the BUP incorrectly assumes that P141K students have the same spatial needs as those who are not in a special education school.”  To the contrary, as noted above, the BUP specifically allocates more cafeteria time to P141K in order to accommodate its students’ needs and states that Explore will need to schedule its lunch periods in shifts of either 239 or 160 students at a time to ensure that the cafeteria’s capacity of 460 is not exceeded.  Moreover, the BUP states that the maximum number of students in the cafeteria at any time would be 311 – well below the actual cafeteria capacity.  On this record, petitioners have not carried their burden with respect to this claim.

I note that, with respect to students with disabilities and ELLs, the information required under the statute for a BUP requires information pertaining to charter and non-charter school students in general and, although the space needs of these groups should be considered in determining the classroom and use of shared space, the BUP does not specifically require a detailed analysis regarding each student subgroup within those schools (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  Petitioners have not established that DOE’s treatment of M.S. 002 students is inequitable as compared to the charter school, nor have they established that students with disabilities or ELL students attending M.S. 002 would be denied equitable access as compared to charter school students (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).

Petitioners also contend that the BUP does not sufficiently justify how the shared usage plan would result in an equitable and comparable use of classrooms as required by Education Law §2853(3)(a-3)(2)(C).  Petitioners contend that, based on the allocation of classrooms as described in the BUP, M.S. 002 will have 3 to 7.5 more students per class in grades six through eight than Explore.  According to petitioners, “this is an inequity that is not addressed or justified.”  Respondents disagree and DOE specifically contends that Explore’s programming has not yet been finalized.

According to the BUP, the justification of feasibility and equitability is based on DOE’s “Instructional Footprint” (“Footprint”).  The Footprint sets forth the baseline number of rooms that should be allocated to a school based on the grade levels served by the school and the number of classes per grade.  For existing schools, the Footprint is applied to the current number of classes and the projected class size in a school and is confirmed by a walk-through of the building by DOE staff.  For grades six through twelve, the Footprint assumes that students move from class to class and that classrooms should be programmed at maximum efficiency.  The Footprint allocates one full-size classroom for each general education or Collaborative Team Teaching section and a full-size or half-size classroom to accommodate each self-contained special education section (or class) served by the school.  The BUP further states that, while the Footprint sets forth a baseline space allocation, school leaders are empowered to make decisions about how to utilize the space allocated to the school.  Moreover, according to the BUP, DOE will provide support to the schools to ensure that they use the space efficiently in order to maximize capacity to support student needs and maintain appropriate delivery of special education and related services to students.

The record indicates that, for 2011-2012, the total space allocated to M.S. 002 is 15 full-size classrooms and five half-size classrooms to serve its 370-400 students in 17 sections, including three self-contained special education sections.  Explore will receive 21 full-size classrooms and two half-size classrooms to serve its 478 kindergarten through grade eight students in 18 sections.  Finally, P141K will receive eight full-size classrooms and one half-size classroom to serve its 67-72 special education students.  Petitioners bear the burden of proof, and based on the record before me, I find that the BUP satisfies the requirement of Education Law §2853(3)
(a-3)(2)(C).  Petitioners have not established that either M.S. 002’s or P141K’s allocation is inequitable as compared to Explore’s allocation.  Moreover, the BUP does not on its face dictate class size and discretion is provided to school leaders on how to utilize the space provided.  Finally, I do not interpret the statute’s equitable and comparable requirement to mean that class sizes must be exactly the same (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).

Petitioners also complain that M.S. 002’s students with food allergies frequently use empty classrooms to eat lunch and that, after the co-location, such rooms will be unavailable for such use.  To the contrary, the deputy director explains that only two M.S. 002 students currently have food allergies and that those students are able to eat in the cafeteria without any risk “because they self-monitor and self-regulate what they eat.”  The deputy director also explains that, should any M.S. 002 student need separate lunchroom accommodations in the future, “they may eat lunch in any one of the classrooms allocated to M.S. 002 that will be empty because M.S. 002 students will be in the cafeteria, or they may eat in any administrative office space, or empty resource room.”

Petitioners also claim that the proposal will prevent M.S. 002 from providing classroom space for students who require testing accommodations for required State assessments.  However, DOE correctly explains that, contrary to petitioners’ assertions, the Department does not require that all elementary and intermediate State assessments be administered on the same day.  Moreover, while DOE explains that it is its practice to administer such assessments on the same day, “[i]f for any reason a school cannot administer state tests on the same day, an alternate testing schedule will be authorized upon viable request and in adherence with state testing procedures.  An alternate testing schedule could, for example, allow schools to stagger administration times by grade level or accommodation type on testing day, which would ... allow for more efficient and flexible use of space, thereby reducing the number or rooms needed.”

Other than their conclusory assertions, petitioners have submitted no evidence to the contrary with respect to students with food allergies or those requiring testing accommodations.  I therefore find that they have failed to carry their burden with respect to these claims.

I note that the record contains a copy of DOE’s May 17, 2011 Public Comment Analysis (“analysis”), which indicates that the issues raised by petitioners in the instant appeal were also raised and addressed by DOE through the public comment process.  The record in this case indicates that DOE provided sufficient information in the EIS to inform public comment.  As set forth above, I cannot conclude from the record before me that DOE’s decision was arbitrary, capricious or lacked a rational basis and find that petitioners have not met their burden of proof.

I am compelled to comment on one final matter.  Together with its verified answer, Explore has submitted an affidavit from its Managing Director of Operations (“managing director”).  Although not directly relevant to the claims raised in the instant appeal regarding the April 12 EIS and BUP, the managing director explains that, since the PEP’s approval of the co-location proposal, school officials at M.S. 002, P141K and Explore have worked collaboratively to address several concerns raised in this appeal.  For example, the managing director explains that Explore has agreed to modify the lunch schedules such that its students will use the cafeteria at the beginning and the end of the time allotted for lunch at K002 under the BUP.  The managing director also states that the schools have agreed that, to minimize potential congestion at arrival and dismissal time, Explore’s students will use a different entrance to K002 than M.S. 002 and P141K students.  With respect to concerns about elementary school students sharing bathrooms with older students, the schools have agreed that, since Explore and M.S. 002 will be sharing the third floor, Explore’s students will only use the bathroom on that floor with an adult present.  Additionally, Explore will use three classrooms that are less than 560 square feet and count these as full-size classrooms toward its total classroom allocation.  Such cooperation and collaboration are at the heart of any successful co-location, and I encourage the parties to continue to work together to ensure the success of such plan.

I have considered petitioners’ remaining contentions and find them to be without merit.

THE APPEAL IS DISMISSED.