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Decision No. 16,290

Appeal of MYRNA MEDINA CORNIER, on behalf of her son JONATHAN, from action of the New York City Department of Education and the Brooklyn Prospect Charter School regarding school utilization.

Decision No. 16,290

(August 18, 2011)

South Brooklyn Legal Services, attorneys for petitioner, John C. Gray and Nancy Bedard, Esqs., of counsel

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

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

Petitioner is the parent of a child who attends P.S. 667 Sunset Park High School (“Sunset Park”), a public school in Brooklyn, New York.

During the 2010-2011 school year, Sunset Park, BPCS and P.S. 371 Lillian Rashkis (“Lillian Rashkis”) were all located in the K564 building in Community School District 15 (“K564 building” or “the building”).  Lillian Rashkis is a District 75 public school serving students with disabilities in grades nine through twelve.  Lillian Rashkis provided services to 77 students during the 2010-2011 school year and is expected to provide services to approximately 80 students during the 2011-2012 school year.

According to the record, Sunset Park, BPCS and Lillian Rashkis have been co-located in the K564 building since the 2008-2009 school year.  BPCS’s co-location with Sunset Park and Lillian Rashkis was originally scheduled to end after the 2010-2011 school year when BPCS would move permanently into a private facility.  However, the private facility will not be completed and ready for BPCS’s occupancy for the 2011-2012 school year.

On March 4, 2011, DOE issued an Educational Impact Statement (“March 4th EIS”) pursuant to Education Law §2590-h(2-a) which proposed to “re-site” BPCS for the 2011-2012 school year.  Under the proposed “one year temporary co-location,” BPCS would move from the K564 building to seven transportable classroom units (“TCUs”), referred to as K979, located on the grounds of public school building K032 (“K032 building”) for the 2011-2012 school year while its permanent facility is readied for occupancy.

Under this proposal, BPCS would have been co-located with P.S. 32 Samuel Mills Sprole (“P.S. 32”) elementary school and New Horizons School (“New Horizons”), a DOE middle school, as well as a community-based organization, Good Shepherd Services.  BPCS was to be housed in the TCUs - K979 - attached to the K032 building and would use shared spaces in K032, including, but not limited to the cafeteria, gymnasium and library.  DOE also issued a Building Utilization Plan (“BUP”), which, interalia, indicated the number of rooms that would be allocated to BPCS, P.S. 32 and New Horizons and the proposed allocation of shared space for the co-location in K979 and K032.

Subsequently, on April 15, 2011, DOE issued what it designated as a “Revised EIS” (“April 15th EIS”) which proposed to allow BPCS to be co-located for one additional school year in building K564 with Sunset Park and Lillian Rashkis and “to expand by one additional grade.”  DOE also issued another BUP “which now outlines the number of rooms that will be allocated to [BPCS], Sunset Park, and [Lillian Rashkis] and the proposed allocation of shared spaces....”

On or about June 20, 2011, a joint public hearing was held regarding the April 15th EIS.  On June 27, 2011, DOE’s Panel for Educational Policy (“PEP”) voted to approve the proposal to continue BPCS’s co-location and expansion in the K564 building.  This appeal ensued.

Petitioner contends that DOE failed to comply with the requirements of Education Law §2590-h(2-a) in a number of respects.  Petitioner asserts, interalia, that the April 15th EIS was a new co-location proposal, not a revision of the March 4th EIS, because Sunset Park and Lillian Rashkis were not identified as affected schools in the March 4th EIS.  Petitioner also argues that, consequently, the April 15th EIS was issued in violation of Education Law §2590-h(2-a)(c), because it was not issued six months in advance of the first day of school in the succeeding school year, as required by that statute.  Petitioner further asserts that BPCS’s co-location and expansion in the K564 building will create overcrowding and adversely affect the instructional programs and students in both Sunset Park and Lillian Rashkis.  Petitioner seeks the annulment of the June 27, 2011 PEP vote.  Petitioner also seeks an order prohibiting DOE from co-locating BPCS in the K564 building on the grounds that it has not proposed a “legal” plan for doing so.

DOE maintains that this appeal is moot because it has determined not to proceed with the challenged proposal to co-locate BPCS in the K564 building, as authorized by the June 27, 2011 PEP vote.[1] 

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, petitioner seeks the annulment of the June 27, 2011 PEP vote approving BPCS’s co-location and expansion in the K564 building for the 2011-2012 school year.  She seeks an order prohibiting DOE from co-locating and expanding BPCS in the K564 building.  However, the record indicates that DOE has determined not to proceed with the challenged co-location and expansion of BPCS in the K564 building.  Additionally, according to the record, on or about July 22, 2011, BPCS entered into a private lease agreement with Bishop Ford Central Catholic High School (“Bishop Ford”) and, therefore, it no longer has a need to co-locate in the K564 building.  Thus, petitioner’s request for relief is moot.

Petitioner, however, argues that, despite DOE’s decision not to proceed with BPCS’s co-location in the K564 building, the appeal should not be considered moot.  Petitioner claims that, “[a]lthough the co-location ... seems unlikely ... it remains a possibility ....”  Petitioner notes that BPCS has not submitted an answer stating whether it agrees with DOE’s determination not to proceed with BPCS’s co-location in the K564 building and argues that, thus, there are no assurances or binding agreements that this co-location will not occur.  Petitioner speculates that there is risk that BPCS’s lease with Bishop Ford “could be” abandoned.

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 Mulgrew, et al., 50 Ed Dept Rep, Decision No. 16,241; Appeal of Muench, 45 id. 508, Decision No. 15,397).  However, I am unable to determine from this record how likely, if at all, the issue of BPCS’s co-location in the K564 building is to recur.  DOE’s determination not to proceed with BPCS’s co-location in the K564 building and BPCS’s private lease agreement to co-locate with Bishop Ford render this appeal moot, and it must be dismissed.  I note that, through its attorney’s affirmation in this appeal, DOE has committed that it will not proceed with the proposed co-location.  Accordingly, I find such commitment binding for purposes of the co-location proposal at issue in this appeal.

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 Mulgrew, et al., 50 Ed Dept Rep, Decision No. 16,241; Appeal of a Student with a Disability, 48 id. 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] DOE has submitted an “Affirmation of Counsel in Response to Petition,” to which submission petitioner does not object.  I, therefore, deem the affirmation to constitute DOE’s answer pursuant to §276.11(e)(1) of the Commissioner’s regulations.