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Decision No. 16,454

Appeal of STUDENTS WITH DISABILITIES, by their parents, from action of the New York City Department of Education, Harlem Success Academy Charter School 2 and Harlem Success Academy Charter School 3 regarding school utilization.

Decision No. 16,454

(January 29, 2013)

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

Emily A. Kim and Daniel Soleimani, Esqs., attorneys for respondents Harlem Success Academy Charter School 2 and Harlem Success Academy Charter School 3

KING, Jr., Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the fifth grades of the Harlem Success Academy Charter School 2 (“HSA 2”) and the Harlem Success Academy Charter School 3 (“HSA 3”) (collectively “respondents”) for the 2012-2013 school year in a public school building.  The appeal must be dismissed.

Petitioners are parents of students classified as having disabilities who bring this action individually and on behalf of their children.  During the 2011-2012 school year, the students attended school at P.S. 208 Alain L. Locke Magnet School for Environmental Stewardship (“P.S. 208”).  P.S. 208 serves students in grades three through five and is located in tandem buildings[1] M185 and M208 (“M185/M208 building” or “the building”).  Also located in the M185/M208 building is P.S. 185 Early Childhood Discovery and Design Magnet School (“P.S. 185”) serving students in grades kindergarten through two, and offering a full-day pre-kindergarten program.  In addition, P226M (“P226M@P208M”), a public “District 75 School,” is located in the M185/M208 building, as is Harlem Link Charter School, which serves students in kindergarten through fifth grade.

HSA 2 is an existing charter school authorized to serve students in grades kindergarten through five.  It currently serves students in kindergarten through fourth grade in building M030 where it is co-located with P.S. 30 and P138M@P030M, a public “District 75 School.”  However, the record indicates that M030 can accommodate only HSA 2’s kindergarten through fourth grade students.

HSA 3 is also an existing charter school authorized to serve students in grades kindergarten through five.  It currently serves students in kindergarten through fourth grade in building M101 where it is co-located with Mosaic Preparatory Academy, a choice elementary school, and P811M@P101M, a public “District 75 School.”  However, the record indicates that M101 can accommodate only HSA 3’s kindergarten through fourth grade students.

On February 2, 2012, DOE issued an Educational Impact Statement (“EIS”) and a Building Usage Plan (“BUP”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3) proposing the co-location of the fifth grades of HSA 2 and HSA 3 in the M185/M208 building.  Subsequently, on February 28, 2012, DOE issued an amended EIS and amended BUP (collectively referred to as the “February 28, 2012 EIS”).  The February 28, 2012 EIS proposed that, for the 2012-2013 school year, HSA 2’s and HSA 3’s fifth grades would be co-located in the M185/M208 building, along with P.S. 185, P.S. 208, P226M@P208M, and Harlem Link Charter School.  The DOE’s Panel for Educational Policy (“PEP”) approved the February 28, 2012 EIS on March 21, 2012.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and provides for an expedited process for appeals to the Commissioner of Education regarding the location or co-location of a charter school within a public school building in the City School District of the City of New York.  Specifically, the expedited process is available for appeals involving:

the determination to locate or co-locate a charter school within a public school building and the implementation of and compliance with the building usage plan developed pursuant to [Education Law §2853(3)(a-3)] ... [and/or] the revision of a building usage plan ... on the grounds that such revision fails to meet the standards set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

However, because the notice of petition served upon respondent DOE did not comply with the requirements of §276.11(c)(2) of the Commissioner’s regulations, petitioners’ appeal was deemed to be a non-expedited appeal pursuant to §276.11(c)(3) of the Commissioner’s regulations.  As a result, the provisions set forth in Part 275 of the Commissioner’s regulations, rather than those set forth in §276.11, apply to this appeal.

Although the petition is not entirely clear, petitioners appear to argue, among other things, that the proposal to co-locate the fifth grades of HSA 2 and HSA 3 in the M185/M208 building is arbitrary and capricious because DOE failed to “identify” pertinent facts found in its own documents.  Petitioners also argue that the proposal to co-locate is arbitrary and capricious because it will result in an unfair and inequitable distribution of space.  In addition, they argue that their children have suffered and will suffer harm and injury to their right to a free and appropriate education.

Respondents contend that the co-location decision was a reasonable and rational exercise of discretion and was neither arbitrary nor capricious.  They also raise several procedural defenses including that the petition was not properly or timely served and that petitioners’ replies are not timely.

I will first address petitioners’ replies.  A reply shall be served within 10 days after service of the answer to which it responds (8 NYCRR §275.14[a]).  If the answer has been served by mail, the date of mailing and the four days subsequent thereto shall be excluded in computing the 10-day period (8 NYCRR §275.14[a]; Appeal of a Student with a Disability, 48 Ed Dept Rep 98, Decision No. 15,803; Appeal of Jacoby, 47 id. 321, Decision No. 15,710).

HSA 2 and HSA 3’s affirmation of service indicates that their answer was served by overnight mail on May 14, 2012.  Pursuant to Commissioner’s regulation §275.14(a), petitioners’ reply should have been served no later than May 29, 2012.  Respondents HSA 2 and HSA 3 acknowledge receiving the reply on June 4, 2012.  By letter dated June 18, 2012 to my Office of Counsel, petitioners argue that they served their reply within 14 business days, and that therefore, their reply is timely.  As noted above, however, petitioners did not comply with the notice requirements of §276.11(c)(2) of the Commissioner’s regulations and the provisions of §276.11 of the Commissioner’s regulations, which define days as business days, do not apply in this appeal.  Except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal (Appeal of Stieffenhofer, 48 Ed Dept Rep 231, Decision No. 15,846; Appeal of a Student with a Disability, 48 id. 146, Decision No. 15,821).  Accordingly, petitioners’ reply to HSA 2 and HSA 3’s answer is untimely and has not been considered.

With respect to the timeliness of petitioners’ reply to respondent DOE’s answer, the parties dispute when petitioners received DOE’s answer.[2]  Respondent DOE’s affirmation of service indicates that its answer was served by mail on May 10, 2012.  Pursuant to Commissioner’s regulation §275.14(a), petitioners’ reply should have been served no later than May 24, 2012.  In correspondence to my Office of Counsel dated May 25, 2012 and May 30, 2012, petitioners indicated that they did not receive DOE’s answer.  On May 30, 2012, my Office of Counsel sent a letter to petitioners by overnight mail and enclosed a copy of respondent DOE’s answer.  In addition, in that correspondence, petitioners were advised that their reply was due on May 24, 2012 and that because that date had passed, they should include with their reply an explanation why their reply was late and request that the Commissioner accept it.[3]

Petitioners’ reply to respondent DOE’s answer is dated June 26, 2012.  Petitioners do not assert that respondent DOE’s answer was untimely.  Rather, as an explanation for their late reply, petitioners assert that they had difficulty receiving respondent DOE’s answer.  Even using May 30, 2012 (the date DOE’s answer was mailed via overnight mail to petitioners by my Office of Counsel) as the date of mailing, petitioners’ reply should have been served no later than June 13, 2012.  I find the explanation offered by petitioners to excuse their delay to be insufficient.  Accordingly, the reply is untimely and has not been considered.

In addition to being untimely, petitioners’ replies improperly contain new allegations that were not raised in their petition.  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).

The appeal must be dismissed as untimely.  The regulations of the Commissioner of Education require that an appeal to the Commissioner be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR §275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No. 15,879).  Here, petitioners challenged DOE’s March 21, 2012 determination to co-locate the fifth grades of HSA 2 and HSA 3 for the 2012-2013 school year in the M185/M208 building.  However, petitioners did not serve respondents HSA 2 and HSA 3, both of which are necessary parties (seeAppeal of Porter, 50 Ed Dept Rep, Decision No. 16,196; Appeal of Murray, 48 id. 517, Decision No. 15,934), until April 23, 2012, more than 30 days after the determination they are challenging and petitioners have not demonstrated good cause for the delay.  The appeal is therefore untimely and must be dismissed.

In addition, §275.8(a) of the Commissioner’s regulations specifically states: “A copy of the petition together with all of petitioner’s affidavits, exhibits, and other supporting papers ... shall be personally served on each named respondent....”  The regulations further provide that within five days after service, the original petition, together with the affidavit of verification and an affidavit proving the service of a copy thereof, shall be transmitted to my Office of Counsel (8 NYCRR §275.9[a]).  In an affidavit filed with HSA 2 and HSA 3’s answer, the Director of External Affairs of Success Academy Charter Schools stated that the copy of the petition that was served on respondents HSA 2 and HSA 3 was “missing pages 8, 15, 16, as well as all of the exhibits referenced therein.”  In the petition filed with my Office of Counsel, page 8 includes several allegations related to petitioners’ claim that the co-location will have a negative impact on one of the students.  In addition, it includes claims regarding the standing of one of the parents.  Pages 15 and 16 list the requests for relief.  I note that the petition filed with my Office of Counsel also includes a list describing Exhibits A through G[4]; however, there is no Exhibit G included with petitioners’ papers.  I find that petitioners failed to comply with the regulations of the Commissioner set forth above because they failed to serve a complete petition and all exhibits on HSA 2 and HSA 3.

Similarly, petitioners failed to comply with the regulations of the Commissioner with respect to the petition they served on respondent DOE. Respondent DOE alleges that the only copy of the petition that was served on it within the 30-day time period to commence an appeal was missing pages 12 and 16-18, and did not include any exhibits.  Respondent DOE submitted an affirmation dated April 30, 2012 and attached as an exhibit a copy of the petition that was served on it.  Pages 12 and 16-18 and the exhibits were not contained in the copy of the petition that was attached to respondent DOE’s affirmation. Page 12 of the petition filed with my Office of Counsel contains allegations related to petitioners’ claim that the proposal to co-locate is arbitrary and capricious because DOE failed to “identify pertinent facts” found in its own documents relating to enrollment, capacity and utilization.  Page 16 includes requests for relief 7-12, and pages 17 and 18 list the exhibits.  The petitions filed with my Office of Counsel and served upon respondents were not complete.  Material discrepancies exist among the petitions and exhibits filed with my Office of Counsel and those which were served upon respondents.  The failure to serve the complete petition and the exhibits on respondents denied them a meaningful opportunity to respond to the contents contained therein and present a defense in this appeal (seeAppeal of Whittaker, 52 Ed Dept Rep, Decision No. 16,424; Appeal of D.S. and D.S., 45 id. 289, Decision No. 15,327).  Accordingly, the appeal must be dismissed.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits.  As noted in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (seealsoAppeal of Espinet, et al., 50 Ed Dept Rep, Decision No. 16,212).  In addition, and also with respect to a BUP, the Commissioner will not substitute his judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  Accordingly, absent proof that DOE’s determination regarding the allocation and shared use of space lacked a rational basis, it will not be set aside (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  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).

While petitioners do not articulate specific challenges to any particular provision of the February 28, 2012 EIS, they appear to assert generally that the proposed co-location is arbitrary and capricious on several grounds.  Specifically, petitioners argue that DOE failed to “identify” pertinent facts found in its own progress reports, which petitioners allege establish that district schools that are co-located with Success Academy charter schools suffer harm to their “student performance and academic progress.”  Petitioners also appear to argue that there are better alternatives to the co-location proposal, such as HSA 2 and HSA 3 remaining in their current location, and that DOE acted arbitrarily and capriciously in not pursuing such alternatives.  Petitioners also appear to assert generally that the proposed co-location will result in an inequitable allocation of space and that their children will lose access to facilities in the building, including the art room and library.

On this record, petitioners have failed to carry their burden of proof with respect to these claims.  Other than their anecdotal and speculative assertions, petitioners have produced no evidence to indicate that DOE acted arbitrarily, capriciously or without a rational basis.  Indeed, in its verified answer, DOE asserts that progress report scores for other schools co-located with Success Academy charter schools “have stayed the same or improved during the period of co-location.”  Moreover, the February 28, 2012 EIS explains that the proposal is not expected to impact current or future instructional programming at M185/M208 and that students with disabilities will continue to receive their mandated special education services.  The February 28, 2012 EIS also states that the building has the capacity to accommodate the proposed co-location and has “sufficient space to provide all these schools with at least their baseline room allocations under the Citywide Instructional Footprint (‘Footprint’)” and the February 28, 2012 BUP explains that, while DOE has proposed a shared space plan, “Building Councils are free to deviate from the proposed [plan] to accommodate specific programmatic needs of all special populations or groups within each school as is feasible and equitable....”  The February 28, 2012 BUP further states that the building has three libraries and that while library access is currently allocated to each school on an “as-needed basis,” under DOE’s proposal “time in the library should be allocated to all schools based on the relative projected enrollment for each school.”

On this record, petitioners have not met their burden of establishing that DOE’s determination to co-locate HSA 2 and HSA 3 in the M185/M208 building for the 2012-2013 school year was arbitrary, capricious or lacked a rational basis.

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

THE APPEAL IS DISMISSED.

END OF FILE.

[1]According to the February 28, 2012 Educational Impact Statement, “[t]andem buildings” are “two separate buildings with separate entrances, which are joined by a central core containing a shared gymnasium, auditorium, and cafeterias.”

[2] I note that respondent DOE made several attempts to deliver its answer to petitioners, including by electronic mail on June 21, 2012, receipt of which was acknowledged by one of the petitioners.

[3] Petitioners were also advised to ensure that they had provided adequate mail delivery information.

[4]There is some confusion about Exhibit G.  On page 11 of the petition filed with my Office of Counsel, paragraph 46 describes Exhibit G as a “‘CEC Presentation October 2011,’ Step 1.”  On page 18, in a list of exhibits, Exhibit G is described as “NYC DOE Progress Report” and is followed by a link to the New York City Department of Education’s website.  A handwritten note in the margin states “No Hard copy – parent volunteers w/limited resources.”  The link provided in Exhibit G is to the Progress Report page of the Performance and Accountability section of the New York City Department of Education’s website.  No documents meeting such descriptions of Exhibit G were attached to the petition filed with my Office of Counsel.