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Decision No. 16,646

Appeal of LETITIA JAMES, Member of the New York City Council and Public Advocate of the City of New York – Elect, ADVOCATES FOR JUSTICE, CLASS SIZE MATTERS, and NEW YORK CITY PARENTS UNION from action of the New York City Department of Education, et al.,* regarding school utilization.

Appeal of LETITIA JAMES, Member of the New York City Council and Public Advocate of the City of New York – Elect, NEW YORK COMMUNITIES FOR CHANGE, ADVOCATES FOR JUSTICE, CLASS SIZE MATTERS, and NEW YORK CITY PARENTS UNION from action of the New York City Department of Education, et al.,* regarding school utilization.

Decision No. 16,646

(August 18, 2014)

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

Zachary W. Carter, Esq., Corporation Counsel, attorney for respondent New York City Department of Education, Chlarens Orsland and Charles Carey, Esqs., of counsel

Arnold & Porter LLP, attorneys for respondent Charter Schools, Susan L. Shin, Mary E. Sylvester, Ian Jay and Ryan Gersovitz, Esqs., of counsel

BERLIN, Acting Commissioner.--In two separate appeals, petitioners challenge the New York City Department of Education’s (“DOE”) Panel for Educational Policy’s (“PEP”) October 15 and October 30, 2013 approvals of proposals to co-locate charter schools and traditional public schools in public school buildings.[1]  Because the appeals present similar questions of fact and law, they are consolidated for decision.  The appeals must be dismissed.

Petitioners, as named in the captions, are Letitia James, Member of the New York City Council and Public Advocate of the City of New York - Elect;[2] New York Communities for Change (“NYCC”); Advocates for Justice; Class Size Matters; and New York City Parents Union (“NYCPU”).  According to the petition, Advocates for Justice, counsel for petitioners in this appeal, is a public interest legal foundation which provides and supports legal representation for parents and students throughout the City of New York in matters involving co-locations of schools; Class Size Matters is a not-for-profit corporation which advocates for smaller class sizes in New York City public schools; and NYCPU is a New York not-for-profit corporation with members at public schools throughout the City of New York.

Respondents are DOE and certain charter schools at various stages of the charter approval process.

Between August 29 and September 30, 2013, respondent DOE issued Educational Impact Statements (“EISs”), including Building Utilization Plans (“BUPs”) where required, proposing co-locations of both charter schools and traditional public schools, in over 40 public school buildings.  Thereafter, DOE held joint public hearings concerning the co-location proposals.  On October 15 and October 30, 2013, the PEP approved the co-location proposals.  These appeals ensued.

On November 25, 2013, petitioners filed with my Office of Counsel a Notice of Petition and Petition dated November 15, 2013, which is Appeal No. 19916.  Also on November 25, 2013, petitioners filed with my Office of Counsel a Notice of Amended Verified Petition, and First Amended Verified Petition dated November 22, 2013 (Appeal No. 19917) and instructed my Office of Counsel to treat it as “the operative pleading.”  By letter dated December 4, 2013, my Office of Counsel advised petitioners that there is no authority for the amendment of pleadings in an appeal to the Commissioner and advised petitioners’ attorney to provide written notification regarding whether they intended to withdraw Appeal No. 19916 (Notice of Petition and Petition dated November 15, 2013).  By letter dated December 6, 2013, petitioners’ attorney advised my Office of Counsel that petitioners were not withdrawing Appeal No. 19916.  The only difference between the two appeals is the addition of NYCC as a petitioner in Appeal No. 19917.  Accordingly, as described above, the appeals have been consolidated for decision.

In both appeals, petitioners assert that respondent DOE violated the Education Law and acted in an arbitrary and capricious manner when it approved co-location proposals on October 15 and October 30, 2013.  Specifically, petitioners claim that the EISs were boilerplate, pro-forma documents, not prepared in accordance with the requirements of Education Law §2590-h(2-a), with little or no actual analysis of the proposed co-locations, and no analysis concerning the impact on programs for students with disabilities or English language learners (“ELLs”).  They also claim that the EISs made “overly generous” estimates of the space available in the “receiving” school buildings and did not take into account the actual use of space in the buildings.  In addition, petitioners claim that the “co-locations will likely push class sizes above the goals in the NYC’s contracts for excellence plan ... or prevent lower class sizes in the future.”  They assert that the Citywide Instructional Footprint[3] (“Footprint”) has redefined a full size classroom and that the EISs fail to analyze how many classrooms will be above those limits.  They also assert that classrooms above those limits will negatively affect student safety and that class sizes will increase to an extent that students in the building will be unable to receive a sound basic education.  Petitioners further assert that new, small schools are more expensive to run and that the EISs did not include any discussion regarding anticipated costs to renovate space to accommodate the co-locations.

Additionally, petitioners claim that the PEP gave only cursory attention to the EISs, the PEP and other staff did no independent analysis of the co-location proposals, no PEP member read the transcripts of the public hearings, and the PEP ignored the opinions of parents and administrators that the buildings had inadequate space for the proposed co-locations.  Further, petitioners claim that in many cases the charter school being approved for co-location in a public school building did not have a charter.

Respondents contend that the determinations were acts of professional educational discretion made in a lawful and rational manner, were in compliance with Education Law §2590-h(2-a), and were neither arbitrary nor capricious.  Respondents also contend that the appeal should be dismissed because petitioners lack standing, as untimely, for failure to join necessary parties and for failure to state a claim upon which relief may be granted.  Respondent charter schools further claim that the petition does not contain a clear and concise statement of petitioners’ claims showing that they are entitled to relief in violation of §275.10 of the Commissioner’s regulations and that I lack the authority to grant the relief sought by petitioners.

The appeals were 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 set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

However, because the notices of petition did not comply with the requirements of §276.11(c)(2) of the Commissioner’s regulations, petitioners’ appeals were deemed to be non-expedited appeals 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 these appeals.[4]

Initially, I will address the procedural issues.  Petitioners submitted replies and memoranda of law in both appeals.  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).  Therefore, while I have reviewed the replies, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.  Similarly, a memorandum of law should consist of arguments of law (8 NYCRR §276.4).  It may not be used to add belated assertions or exhibits that are not part of the pleadings (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).  To the extent petitioners’ memoranda of law contains new allegations that are not set forth in the pleadings, I have not considered them.

Pursuant to §276.5 of the Commissioner’s regulations, respondent charter schools requested permission in both appeals to submit a memorandum of law and affirmations from the Chief Legal Officer to Success Academy Charter Schools and from an associate at the law firm representing respondent charter schools with exhibits attached to each affirmation.  The new allegations and exhibits submitted for the first time in respondent charter schools’ memoranda of law have not been considered (Appeal of Bruning and Coburn-Bruning, 48 Ed Dept Rep 84, Decision No. 15,799; Appeal of Wright, 47 id. 202, Decision No. 15,668).

The appeals must be dismissed for lack of standing.  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).

Petitioners assert that petitioner James, representing citizens of New York as Public Advocate, has standing and that Advocates for Justice, representing affected public school children; Class Size Matters, representing parents of affected public school children; and NYCPU, representing parents of school children, have organizational standing.  Petitioners make no specific assertions with respect to NYCC’s standing.

Specifically, petitioners assert that petitioner James has standing as the New York City Public Advocate because she is “tasked with the duty of protecting the rights of individual citizens” and has “functional responsibility” within the “zone of interest” at issue in this case, “that of NYC parents and children and their need for quality public education.”  Petitioners appear to argue that petitioner James, as Public Advocate, has capacity[5] to bring this appeal.[6]  However, petitioners have not demonstrated that petitioner James has standing.  To establish standing, petitioner James must show that she suffered specific injury in fact and that the injury sustained falls within the zone of interests protected by the statute (see Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761).  Her status as a City elected official, does not, in and of itself, confer standing to challenge the PEP’s co-location determinations on behalf of her constituents (see Matter of Montgomery v. Metropolitan Transportation Authority, 25 Misc3d 1241[A]; Urban Justice Center, et al. v. Pataki, et al., 10 Misc3d 939, affd 38 AD3d 20; Appeal of Williams, 53 Ed Dept Rep, Decision No. 16,548).  The allegation that she is bringing this appeal on behalf of the citizens of New York who are aggrieved as a result of the PEP’s votes does not establish specific injury or interest required for standing (see Matter of Montgomery v. Metropolitan Transportation Authority, 25 Misc3d 1241[A]; cf. Silver v. Pataki, 96 NY2d 532, 539-540 [Speaker of the Assembly, as legislator, has standing to challenge an alleged unconstitutional veto that nullified his vote]).  Petitioners have failed to allege that petitioner James has herself been aggrieved by the PEP’s votes or that she is bringing this appeal on behalf of parents of students or students who will be attending schools in the buildings approved for co-locations.  Accordingly, petitioner James lacks standing to maintain this appeal.

Petitioners also argue that Class Size Matters and NYCPU meet the three-part test for organizational standing.  In order to establish organizational standing, petitioners must demonstrate that one or more of their respective members has standing to sue, that the interests advanced in the matter are sufficiently germane to the individual members’ purposes such that the organization is an appropriate representative of those interests, and that the participation of the individual members is not required to assert this claim (Society of Plastics Indus. v. County of Suffolk, 77 NY2d 761, 775).  With respect to the first part of the test for organizational standing, petitioners assert that Class Size matters and NYCPU each represent public school children or parents of public school children and that these children and their parents would have standing to appeal because the proposed co-locations would impact the course of education at schools the children currently attend.  While petitioners assert that Class Size Matters and NYCPU represent parents of school children, they fail to allege that any of their individual members are parents of students who will be attending schools in the buildings approved for co-locations.  As petitioners fail to establish that Class Size Matters and NYCPU have members who are directly affected by the PEP’s determination to approve the co-location proposals, they do not meet the first part of the test for organizational standing.  Accordingly, they lack standing and the appeal must be dismissed as to them. 

Similarly, Advocates for Justice lacks standing, as petitioners generally allege only that Advocates for Justice represents affected public school children.  With respect to NYCC’s standing, petitioners fail to demonstrate how it has standing beyond the general claim set forth in the petition that “many” of its 5,000 members “have children in the NYC Public Schools with learning disabilities or the need to learn English.”  Therefore, the appeal must be dismissed as to NYCC.  Further, I note that none of the petitioners allege that they represent parents of students disabilities or students with disabilities or parents of ELL students or ELL students who will be attending schools in any of the buildings approved for co-locations.  Consequently, petitioners lack standing to raise claims on their behalf (see Appeal of Kroening, 53 Ed Dept Rep, Decision No. 16,579; Appeal of T.T., 51 id., Decision No. 16,361).  Accordingly, because all petitioners lack standing, the appeal must be dismissed in its entirety.

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

THE APPEALS ARE DISMISSED.

END OF FILE

*The following charter schools are also listed as respondents:

American Dream Charter School

Mott Hall Charter School

Uncommon Charter High School 3

Invictus Preparatory Charter School

Success Academy Charter School – New York 2

Success Academy Charter School – Crown Heights

Success Academy Charter School – New York 3

Success Academy Charter School – New York 4

Success Academy Charter School – New York 1

Success Academy Charter School – New York 5

Success Academy Charter School – New York 6

Success Academy Charter School – Harlem 4

Girls Preparatory Charter School of the Bronx

Compass Charter School

Explore Exceed Charter School

Coney Island Preparatory Public Charter School

Achievement First North Brooklyn Preparatory Charter School

 

 

[1] One of the proposals listed in the petition, to expand M.S. 260 Clinton School for Writers and Artists (02M260) from grades 6-8 to grades 6-12 in School Building M868 beginning in the 2015-2016 school year, is not identified as a co-location on the PEP’s October 30, 2013 Panel Meeting list.  Rather, it is described as a re-siting and grade expansion.

 

 

 

[2] When the petition was filed on November 25, 2013, petitioner James was a New York City Council Member and the Public Advocate of the City of New York – Elect.  She is currently the Public Advocate

of                                                                                                                                                                                                                                                                                                                          the City of New York.

[3] The EIS attached as Exhibit A to the affidavit of the Chief Portfolio Officer in DOE’s Office of Portfolio Management explains that the footprint guides space allocation and use in City schools.

 

[4] Petitioners also challenge the co-location of traditional public schools in public school buildings.  The provisions of Education Law §2853(3)(a-5) do not apply to such challenges.

 

[5] “Capacity to sue is a threshold matter allied with, but conceptually distinct from, the question of standing.  As a general matter, ‘capacity concerns a litigant’s power to appear and bring its grievance before the court’ (Community Bd. 7 v. Schaffer, et al., 84 NY2d 148, 155)” (Silver v. Pataki, 96 NY2d 532, 537).

 

[6] Having determined that Petitioner James lacks standing, I need not address the issue of whether, as the Public Advocate for the City of New York, she has capacity to bring this appeal.