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Decision No. 16,548

 

 Appeal of JUMAANE D. WILLIAMS, as City Council Member of District 45,individually and as a taxpayer residing in Brooklyn, et al.,* from action of the New York City Department of Education and New American Academy Charter School regarding school utilization.

Decision No. 16,548

(September 5, 2013)

Advocates for Justice, attorneys for petitioners, Arthur Z.Schwartz and Laura D. Barbieri, Esqs., of counsel

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

Kirkland & Ellis LLP, attorneys for respondent New American Academy Charter School, Jay P. Lefkowitz, P.C. andDevora W. Allon, Samara Penn and John Robinson, Esqs.,of counsel

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

Petitioners, for the most part, are parents who allege that they have children who attend one of DOE’s high schools on the Tilden Campus in building K415 (“K415building” or “the building”). Approximately 20 petitioners are identified as students attending school in the building. Three petitioners are identified as Brooklyn residents and taxpayers.

The building houses three schools, Kurt Hahn Expeditionary Learning School (“Kurt Hahn”), It Takes a Village Academy (“It Takes a Village”) and Cultural Academy for the Arts and Sciences (“Cultural Academy”). All three schools serve students in grades nine through twelve.

New American is a new charter school authorized to serve students in grades kindergarten through five. It is scheduled to open and serve students in kindergarten and

first grade for the 2013-2014 school year and will add one grade each year until it reaches grade five in 2017-2018.

On January 11, 2013, DOE issued an Educational Impact Statement (“EIS”) and Building Utilization Plan (“BUP”)(collectively referred to as the “EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3) proposing the co-location of New American in the building. A public hearing was held on February 20, 2013 and, on March 20,2013, the Panel on Educational Policy (“PEP”) voted to approve the co-location of New American in the building beginning in the 2013-2014 school year. This appeal ensued.

On May 1, 2013, the principals of the existing schools in the building and the principal of New American (“Building Council”) met with DOE’s Office of Space Planning to discuss the allocation of space for the 2013­2014 school year. Based on that meeting, on May 15, 2013,DOE issued a revised BUP to reflect the consensus reached at the meeting and posted the revised BUP. The PEP was scheduled to vote on the revised BUP on June 19, 2013,after the record in this appeal was complete.

Petitioners challenge the proposed co-location. They allege that it poses significant safety and security concerns and will limit access to and use of classrooms and shared space. In addition, they allege that the enrollment information relied upon by DOE is flawed.

Respondents generally deny petitioners’ allegations. They raise several procedural defenses including that petitioners lack standing to maintain the appeal and that petitioners have not demonstrated a clear legal right to the relief requested.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which 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 2

set forth in [Education Law §2853(3)(a-

3)(2)(B)] (Education Law §2853[3][a­

5]).However, because the notice of petition 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.

Initially, I will address the procedural issues. Respondents assert that petitioners have not demonstrated that they have standing to maintain the appeal. Specifically, respondents contend that the petition does not indicate that petitioners will attend school at K415during the 2013-2014 school year or that they have minor children who will attend school at K415 during the 2013­2014 school year. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

Petitioner parents do not allege that their children will attend K415 during the 2013-2014 school year, the year that New American is scheduled to open in the building, nor do they specify which grade(s) their children attend. Petitioner students do not allege that they will attendK415 during the 2013-2014 school year, nor do they specify which grade(s) they attend. I note that, although petitioners had an opportunity to reply to each affirmative defense pursuant to Commissioner’s regulations §276.11(e),they failed to do so. As the parent and student petitioners failed to demonstrate that they are directly affected by the co-location, they lack standing, and the appeal must be dismissed as to them (see e.g. Appeal of T.T., et al., 51 Ed Dept Rep, Decision No. 16,361; Appeal of Collier, et al., 51 id., Decision No. 16,289).

Respondents also allege that those petitioners who are pursuing the appeal as residents and taxpayers lack standing. District residents have standing to challenge an allegedly illegal expenditure of district funds (Appeal of 3

Strade, et al., 48 Ed Dept Rep 73, Decision No. 15,797;Appeal of Russo, 47 id. 429, Decision No. 15,744; Appeal of Houdek, 47 id. 415, Decision No. 15,740). However, status as a resident taxpayer of a school district does not, in and of itself, confer standing to challenge a board of education’s actions concerning its students (see e.g. Appeal of Hertel, 49 Ed Dept Rep 267, Decision No. 16,021;Appeal of Schiavi, 40 id. 615, Decision No. 14,569; Appeal of Chapman, et al., 40 id. 558, Decision No. 14,556).Petitioners bringing this appeal as residents and taxpayers do not assert an illegal expenditure of district funds nor do they allege actions such as fraud, waste or collusion on the part of district officers that would impact their rights as a taxpayer (see Appeal of Roth, 50 Ed Dept Rep,Decision No. 16,171). Accordingly, the resident and taxpayer petitioners lack standing and the appeal must also be dismissed as to them.

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009). Among other things, Education Law §2590­h(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. 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).

An EIS is required to include:

i. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;

ii. the impacts of the proposed school closing or significant change in school utilization to any affected students; 4

iii. an outline of any proposed or potential use of the school building for other educational programs or administrative services;

iv. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;

v. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;

vi. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and

vii. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status. Education Law §2590-h(2-a)(b).

Further, pursuant to Education Law §2853(3)(a-3),after a public school building has been selected for a proposed co-location of a charter school, DOE is required to develop a BUP which must be included within the EIS. At a minimum, the BUP must include:

A. the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;

B. a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non­5

charter school students as provided to charter school students;

C. justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;

D. building safety and security;

E. communication strategies to be used bythe co-located schools; and

F. collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee...(Education Law §2853 [3][a-3][2][A-F]).

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 (see also Appeal of Espinet, et al., 50 Ed DeptRep, Decision No. 16,212). In addition, and also with respect to a BUP, the Commissioner will not substitute judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result inequitable and comparable use of the building (see Appeal 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 (Appeal 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., 48id. 348, Decision No. 15,882). I note that petitioners submit no affidavits or other evidence – including the EIS and/or BUP – to support the allegations made in the petition.

Petitioners object to the proposed co-location and assert that a more detailed analysis of the proposal is required. While they do not articulate specific challenges to any particular provision of the EIS, they generally assert that the EIS lacks specificity and that the BUP is sufficiently flawed such that the high schools in building 6

K415 will be unable to maintain their programming. In addition, they allege that the proposed co-location poses significant safety and security concerns and will limit access to and use of classrooms and shared space. They also allege that the enrollment information relied upon by DOE is flawed.

On this record, petitioners have failed to carry their burden of proof with respect to these claims. Other than their speculative assertions, petitioners have produced no evidence to indicate that the DOE acted arbitrarily, capriciously or without a rational basis.

With respect to petitioners’ challenge to the sufficiency of the EIS, while an EIS is required to address the information listed in Education Law §2590-h(2-a)(b),DOE is afforded a considerable measure of discretion in determining how best to do this in light of the statute’s purpose (i.e., to inform public comment) (see e.g., Mulgrew

v. Bd. of Educ. of the City School District of the City of New York, 75 AD3d 412; Appeal of Batt is, et al., 50 Ed DeptRep, Decision No. 16,115). Contrary to petitioners’ claims, I find that DOE has substantially complied with the requirements of Education Law §2590-h(2-a)(b).

In addition, other than conclusory assertions, petitioners provide no evidence to support their position that the co-location will be unsafe. As noted above, the BUP must include building safety and security information. Here, the BUP provides that every school must have a School Safety Committee and further explains the committee’s role and responsibilities, including developing a comprehensive School Safety Plan which is submitted to the New York City Police Department (“NYPD”) for final approval and certification. Pursuant to the BUP, School Safety Plans are updated annually in order to address changing security needs and the School Safety Committee can recommend changes at any other time when it is necessary to address security concerns.

Regarding petitioners’ concern that New American’s elementary students will not be scanned or pass through metal detectors when entering the building, DOE’s chief portfolio officer noted in her affidavit that NYPD is responsible for setting the policy regarding who is scanned at schools and that DOE and the NYPD have agreed that elementary students across the city should not be subject to scanning. In addition, she stated that all adults visiting New American will be required to pass through a metal detector. 7

Further, with respect to petitioners’ concern that co­ locating an elementary school with high schools is unsafe for students, the EIS states that DOE, in consultation with the Building Council will, where possible, allocate contiguous and dedicated space to the elementary school students to ensure the safety of all students. Moreover, as noted above, on May 1, 2013, DOE’s Office of Space Planning met with the K415 Building Council and, in conjunction with the Building Council, determined that while New American will share the first and second floors with the other existing schools in the building, its classrooms will be located away from hallways that high school students frequent. In addition, New American will have a designated stairway for access to the cafeteria. Further, New American’s director of development stated in an affidavit that a staff member from New American will be stationed in the hallway essentially preventing any high school students from entering New American and vice versa. Moreover, DOE’s chief portfolio officer indicated in her affidavit that multiple schools in the city with elementary and high school students located on one campus have maintained safety on campus. Accordingly, petitioners have not met their burden of proving that the co-location of New American in the same building as high schools will be unsafe.

Petitioners have also failed to meet their burden with respect to their claim that the proposed co-location will limit access to and use of specialized classrooms and shared space. The EIS discusses the capacity of K415 and indicates that the building is underutilized and that the proposed co-location is not expected to impact instructional programming. Indeed, the EIS indicates that, in the 2017-2018 school year, when New American is at full capacity, the building will have a utilization rate of only61 – 70 percent. In addition, according to the BUP, the existing high schools in the building will receive space in excess of their baseline allocation under the Citywide Instructional Footprint. Further, according to the BUP, certain specialty rooms were not included in the allocation of space for an individual school.

With respect to petitioners’ claim that additional space is required to build labs for career and technical education (“CTE”) programs, the EIS discusses the CTE programs and indicates that they are in development and have not yet been approved by the State Education Department.

With respect to petitioners’ claim that resource rooms may have to be moved or eliminated, I note that no petitioner alleges that he or she is a student with a disability or that he or she is the parent of a student with a disability. Consequently, I find that, if the appeal were not dismissed on procedural grounds, petitioners would lack standing to raise this claim (Appeal of McCall, et al., 51 Ed Dept Rep, Decision No. 16,257).In any event, the EIS clearly states that all students in the K415 building who currently receive mandated special education services will continue to receive such services.

Contrary to petitioners’ claim that the proposed co­location will require changes to the physical structure of various rooms to accommodate elementary school students, the EIS indicates that no construction is required. In addition, New American’s director of development stated in her affidavit that the bathroom facilities were inspected by a New American representative and it was determined that the facilities are appropriate for students in grades kindergarten through five.

Petitioners also challenge the allocation of space with respect to the gym. However, the original BUP contains a proposed shared space schedule and provides that time in the gymnasium be allocated relative to the projected enrollment of each school. According to the schedule, New American and Kurt Hahn will utilize Gymnasium C, and New American is allocated six hours weekly while Kurt Hahn is allocated 25.5 hours weekly. In her affidavit, the chief portfolio officer indicated that the allocations will allow for all high school students to meet their graduation requirements. With respect to petitioners’ claim about space for recess during inclement weather, the director of development for New American indicated that there are two other common spaces in the building that each seat 75 students and could be used for indoor activities for New American.

In addition, while not clearly articulated, petitioners appear to argue that DOE’s enrollment projections are flawed. 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 (Appeal of McCall, etal., 51 Ed Dept Rep, Decision No. 16,257). Further, to the extent petitioners argue that the high schools should be expanded or that there are better alternatives to the co­location, they have failed to produce any evidence that DOE acted arbitrarily or capriciously in making its decision.

They have also failed to produce any evidence that DOE failed to consider the co-location’s impact on the “neighborhood.” Indeed, as required by Education Law §2590-h(2-a)(b), the EIS addresses the co-location’s impact on the community.

I note that the record contains a copy of the DOE’s Public Comment Analysis, which indicates that many of 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.

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

THE APPEAL IS DISMISSED. END OF FILE

* The following individuals are also listed as petitioners: OSWALD BAPTISTE, individually and as a parent and natural guardian of K.B., infant; SHARON BATSON-GUERRA, individually and as a parent and natural guardian of R.W. ,infant; SONIA BENT, individually and as a parent and natural guardian of C.M. and H.B., infants; GEORGE BERKLEY, individually and as a parent and natural guardian of L.B., infant; RYAN AND JACQUELIN BOYCE, individually and as a parent and natural guardian of Y.B., infant; DANA BRIDGEWATER, individually and as a parent and natural guardian of D.B., infant; DOROTHY BROWN, individually and as a parent and natural guardian of J.D., infant; CLARABROWN-HARRIS, individually and as a parent and natural guardian of Q.H., infant; MARIE CELION, individually and as a parent and natural guardian of M.C., infant; SANDRACLARKE, individually and as a parent and natural guardian of P.C., infant; DELCETA COLE, individually and as a parent and natural guardian of A.C. and F.W., infants; BEVERLYCORT, individually and as a parent and natural guardian of Y.C., infant; HOROLDO COURTNEY-MURRAY, individually and as a parent and natural guardian of C.M., infant; FELISIADALTON, individually and as a parent and natural guardian of J.D., infant; ANTHONY AND SANDRA DAVIS, individually and as a parent and natural guardian of K.D., infant; MARIEDOMOND, individually and as a parent and natural guardian of I.K., infant; PETERGAYE FEARON, individually and as a parent and natural guardian of S.M., infant; YVONNE 10

FORREST, individually and as a parent and natural guardian of S.J., infant; ANGELA FRANCIS, individually and as a parent and natural guardian of T.F., infant; DENYSE GREENE, individually and as a parent and natural guardian of N.J., infant; ANNETTE HEADLEY, individually and as a parent and natural guardian of A.W., infant; RATASHA IRVIN, individually and as a parent and natural guardian of S.I., infant; DONNA JOHNSON, individually and as a parent and natural guardian of D.J., infant; LUTHER LOHR, individually and as a parent and natural guardian of I.L., infant; FREDERIC MALLEFRON, individually and as a natural guardian of S.M., infant; SHERRYANN MORANT, individually and as a parent and natural guardian of M.C., infant; LESLIE PHILLIPS, individually and as a parent and natural guardian of J.P., infant; MICHAEL QUICK, individually and as a parent and natural guardian of M.Q., infant; MADGE ROBERTS, individually and as a parent and natural guardian of R.R., infant; SHERMA SANDY, individually and as a parent and natural guardian of Y.S., infant; KELLY SMITH, individually and as a parent and natural guardian of K.I., infant; MONICA SMITH, individually and as a parent and natural guardian of A.M., infant; JACQUELINE SPRINGER, individually and as a parent and natural guardian of R.S., infant; CECILWALTON, individually and as a parent and natural guardian of S.W., infant; ERIC WATERMAN, individually and as a taxpayer residing within District 18, LENORE WHIGHAM, individually and as a parent and natural guardian of M.B., infant; TRACEY WILLIAMS, individually and as a parent and natural guardian of L.C., infant; MARTIN YOUNG, individually and as a taxpayer residing within District 18;AND, STEPHEN ABRAMS, SHAWN BRATHWAITE, BRANDON BROWN,ANJORN CAVIA, OMAR CHARLES, KENDALL CLARKE, COURTNEY MURRAY, ALEX DARKNA, SHANICE GILKES, KEVIN ORDON, KABARHAMPTON, CIVIL HARRYSON, KEVIN HENDRICKS, KARL JEAN SAMANO,SHANA-KAYE KHANS, ROBERTO MAURICE, ISHMEAL MILLS, CARLTONSOOKDEO, JUSTIN VENTOUR, DANIEL WEETHES, individually and as students attending school on the Samuel J. Tilden School Campus.