Decision No. 16,782
Appeal of ALEXANDRO ACOSTA, on behalf of his daughter MAREA, et al.,* from action of the New York City Department of Education and Success Academy Charter School – Bronx 3 regarding school utilization.
Decision No. 16,782
(June 29, 2015)
Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz and Laura D. Barbieri, Esqs., of counsel
Zachary W. Carter, Corporation Counsel, attorney for respondent New York City Department of Education, Chlarens Orsland, Esq., of counsel
Emily A. Kim, Cara M. Ciuffani, Daniel N. Soleimani, and Katherine M. Wojewoda, Esqs., attorneys for respondent Success Academy Charter School – Bronx 3, of counsel
BERLIN, Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the temporary co-location of grades three through five of Success Academy Charter School – Bronx 3 (“SA – Bronx 3”) (collectively with DOE “respondents”) in public school building X145 (“the building” or “building X145”), in Community School District (“CSD”) 9, beginning in the 2015-2016 school year. The appeal must be dismissed.
Petitioners are the parents of students who attend either Arturo Toscanini J.H.S. 145 (“J.H.S. 145”), Urban Science Academy, or New Millenium Business Academy Middle School (“New Millenium Academy”). J.H.S. 145, Urban Science Academy, and New Millenium Academy are existing district middle schools located in building X145 and serving students in grades six through eight. Building X145 also houses an Alternate Learning Center (“ALC M.S. 145”), which provides an educational setting for students in grades six through eight who are serving a suspension of up to 90 days. According to the petition, “25% of Petitioners have children who have been found by the [DOE] to have educational disabilities sufficient to warrant Individual Education Plans [sic]” but those parents are not named in the caption because “the privacy of the children involved prevents the inclusion of the individual names.”
On March 6, 2015, DOE issued an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3). The March 6 EIS proposed, among other things, to temporarily co-locate grades three through five of SA – Bronx 3 in building X145 with J.H.S. 145, Urban Science Academy, New Millenium Academy, and ALC M.S. 145 beginning in the 2015-2016 school year. SA – Bronx 3 is an existing public charter elementary school serving students in kindergarten through second grade in building X146 in CSD 8, which plans to expand to serve students in kindergarten through grade twelve. According to the EIS, SA – Bronx 3 will offer kindergarten through grade two in the X146 building and grades three through five in the X145 building, which is located 0.6 miles from the X146 building. SA – Bronx 3 will add one grade per year until it serves grades three through five in the X145 building in 2017-2018. The EIS also explains that, before the end of the three-year co-location, DOE will re-evaluate the proposal to determine the long-term siting location for SA – Bronx 3, including the possibility of SA – Bronx 3 students remaining at the X145 building for grades three through five or all or part of these grades moving to a new site.
On April 16, 2015, a joint public hearing (“hearing”) was held regarding the March 6 EIS and BUP, and on April 29, 2015, the Panel for Educational Policy (“PEP”) approved the proposed co-location. This appeal ensued.
Petitioners challenge DOE’s determination to co-locate SA – Bronx 3 in the X145 building. They allege that the March 6 EIS and BUP give “pro-forma lip service” to J.H.S. 145, Urban Science Academy, and New Millenium Academy’s ability to “carry out their programs” and to provide legally-mandated services to students with disabilities and English Language Learner (“ELL”) students. Petitioners assert that DOE violated Education Law §§2853(a-3)(2) and 2592-h(2-b)(i), (ii), and (vii) by “failing to use any language other than general assurances that the three schools will be able to carry out [their] programs.” Specifically, they allege that the March 6 EIS and BUP fail to address how the three schools will be able to comply with DOE’s Renewal Program, which requires increased services to students, with diminishing building space, and provides no detail about how SA – Bronx 3 elementary-age students will function with middle school students. Petitioners further contend that DOE’s proposal fails to adequately address the safety issues associated with combining middle and elementary school students in the same building.
Respondents deny petitioners’ allegations and contend that DOE complied or substantially complied with all statutory requirements. Respondents maintain that DOE’s actions were neither arbitrary nor capricious and were at all times rational acts of professional educational discretion, lawful, proper, and in conformity with applicable law, and that petitioners have not met their burden of demonstrating a clear legal right to the relief requested. In addition, respondents assert that the appeal should be dismissed for improper verification. SA – Bronx 3 also asserts that petitioners lack standing and objects to petitioners’ reply.
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[,] 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[a-5]).
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]). The answers in this appeal were served on June 12, 2015 by overnight mail, in accordance with Commissioner’s regulations (8 NYCRR §276.11[e]). Therefore, the reply should have been served no later than June 16, 2015. Petitioners did not provide an affidavit of service along with their reply. The Federal Express package in which the reply was mailed indicates that petitioners’ attorney shipped the reply on June 18, 2015. In a charter school co-location appeal, the Commissioner, in his or her sole discretion, may excuse the failure to timely serve a reply “for good cause beyond the control of the requesting party” and the reasons for such failure “shall be set forth in the ... reply” (8 NYCRR §276.11[e]). Petitioners’ attorney submitted an affidavit along with two replies and a “reply memorandum of law” in which she purports to set forth an explanation for her failure to effect timely service as required by such regulation. She states that on Friday, June 12, 2015, the attorney for SA – Bronx 3 “requested the opportunity to serve us by email, a request to which we consented. However, we did not expect to receive the Respondents’ papers after hours on Friday.” As a result, according to petitioners’ attorney, she was “effectively precluded” from working on the reply over the weekend since she “did not receive it prior to leaving for the weekend.” In addition, she notes that given the voluminous responses from both respondents, “sufficient cause exists for any lateness in service or filing.” I find petitioners’ excuse to be insufficient, especially considering that petitioners’ attorney consented to receive SA – Bronx 3’s answer by e-mail on June 12, and therefore, she knew or should have known to check her e-mail that day. In addition, due to the intervening weekend, petitioners had until Tuesday, June 16, to serve their reply. Accordingly, the reply must be rejected as untimely and has not been considered.
Respondents assert that the appeal should be dismissed for improper verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified by the oath of at least one of the petitioners. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46 Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46 id. 260, Decision 15,501). Further, if the appeal is brought from the action of the trustee or board of trustees or board of education of a school district, verification of the answer shall be made by any person who is familiar with the facts underlying the appeal (8 NYCRR §275.5[a]). If two or more respondents are united in interest, verification of the answer shall be made by at least one of them who is familiar with the facts (8 NYCRR §275.5[a]). Annexed to the petition are two verifications: one by petitioners’ attorney, Arthur Schwartz (“Schwartz Verification”) and one by Beatrice Richardson (“Richardson Verification”). Mr. Schwartz is not a petitioner, and therefore, the Schwartz Verification is improper (see Appeal of Valdez, 54 Ed Dept Rep, Decision No. 16,651).
While Ms. Richardson is one of the petitioners named in the caption, respondent SA – Bronx 3 asserts that it was not served with the Richardson Verification until June 10, 2015, by e-mail, and in any event, Ms. Richardson does not have personal knowledge of any facts in the petition relating to Urban Science Academy, New Millennium Academy, and ALC M.S. 145. In appeals commenced pursuant to Education Law §2853(3), “[t]he petition shall be served in the manner prescribed in subdivision (a) of section 275.8 of this Title, together with all of petitioner’s affidavits, exhibits and supporting papers and petitioner’s memorandum of law, if any” (8 NYCRR §§276.11[c], 275.8[a]). The petition submitted to my Office of Counsel contained the requisite verification from petitioner Richardson. However, petitioners should have included a copy of the verification with the papers served on respondents, and I will not excuse this omission because petitioners are represented by counsel (see Appeal of Dupras, 47 Ed Dept Rep 741, Decision No. 15,757; cf. Appeal of J.H. and T.H., 54 Ed Dept Rep, Decision No. 16,687; Appeal of W.B., 54 id., Decision No. 16,662; Appeal of Carangelo, 49 id. 217, Decision No. 16,006; Appeal of M.M., 42 id. 323, Decision No. 14,870). Therefore, the appeal in its entirety must be dismissed for failure to serve a proper verification in accordance with 8 NYCRR §§276.11(c)(1) and 275.8(a).
Moreover, as respondents note, the Richardson Verification is insufficient as it does not ensure that the pleading is properly verified based on the collective knowledge of the parties (see Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660). According to the petition, Ms. Richardson is the parent of a student enrolled in J.H.S. 145. As such, she does not have personal knowledge of any facts in the petition relating to Urban Science, New Millennium Academy, and ALC M.S. 145 (see Appeal of Touré, et al., 54 Ed Dept Rep, Decision No. 16,660). Accordingly, even if petitioners’ attorney properly served the Richardson Verification, the claims relating to Urban Science, New Millennium Academy, and ALC M.S. 145 would be dismissed for improper verification.
The appeal also 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). While petitioners allege that they are all parents of children currently attending one of the schools in building X145, none of the petitioners claim that any of their children will attend a school in X145 once the co-location commences in the 2015-2016 school year, nor do they specify which grades their children attend in the current school year. As no petitioner demonstrates that he or she is directly affected by the co-location, they all lack standing, and the appeal must be dismissed (see e.g. Appeal of K.W., 52 Ed Dept Rep, Decision No. 16,457; Appeal of T.T., et al., 51 id., Decision No. 16,361; Appeal of Collier, et al., 51 id., Decision No. 16,289).
Moreover, to the extent petitioners assert that the March 6 EIS does not address the needs of the building’s existing special education and ELL population, I note that no petitioner alleges that he or she is the parent of a student with a disability or an ELL student. Consequently, I find that petitioners lack standing to the extent they attempt to raise claims on behalf of such students (Appeal of Valdez, 54 Ed Dept Rep, Decision No. 16,651; Appeal of McCall, et al., 51 id., Decision No. 16,257). In any event, I note that the EIS indicates that “[t]he existing ICT [Integrated Co-Teaching], SC [Self-Contained] and SETSS [Special Education Teacher Support Services] will continue to be provided, and current and future students with disabilities will continue to receive mandated services in accordance with their individualized education programs (“IEP”).” The EIS also indicates that “all ELL students will continue to receive mandated services.” Petitioners have offered no proof to contradict such statements in the EIS or to otherwise demonstrate that students with disabilities and ELL students would be adversely impacted by the use of space as set forth in the EIS (see Appeal of Valdez, 54 Ed Dept Rep, Decision No. 16,651; Appeal of Litichevsky, et al., 50 id., Decision No. 16,254).
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 §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. 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).
Education Law §2590-h(2-a)(b) requires that an EIS include the following:
- 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;
- the impacts of the proposed school closing or significant change in school utilization to any affected students;
- an outline of any proposed or potential use of the school building for other educational programs or administrative services;
- 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;
- 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;
- the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and
- 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.
Further, pursuant to Education Law §2853(3)(a-3), after a public school building has been selected for a proposed co-location, DOE is required to develop a BUP that must be included within the EIS. At a minimum, the BUP must include the following information:
- the actual allocation and sharing of classroom and administrative space between the charter and non-charter schools;
- 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 non-charter school students as provided to charter school students;
- 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;
- building safety and security;
- communication strategies to be used by the co-located schools; and
- collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee ... (Education Law §2853 [a-3][A-F]).
The appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Espinet, et al., 50 id., Decision No. 16,212; Appeal of Battis, et al., 50 id., Decision No. 16,115). In addition, and also with respect to a BUP, the Commissioner will not substitute his or her 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 (see Appeal of Anderson, 51 Ed Dept Rep, Decision No. 16,259; Appeal of Litichevsky, et al., 50 id., 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., 48 id. 348, Decision No. 15,882).
Petitioners appear to argue that the temporary co-location of SA – Bronx 3’s grades three through five would adversely affect the ability of the three existing schools to successfully participate in DOE’s Renewal Program, which is designed to improve troubled schools’ student outcomes with enhanced support and oversight. However, petitioners provide no specific facts or evidence to support their contentions and merely state in a conclusory manner that the co-location will require the schools “to give up space and resources, [and] undermine their ability to implement new Renewal programs and services for students that require space and to offer extended learning time.” Contrary to petitioners’ allegations, the EIS provides that the proposal will not affect the Renewal Program, including any tailored ancillary services, extended instruction time, or additional resources the schools may receive as a result of the Renewal Program. Indeed, respondent DOE submitted an affidavit from the executive superintendent of the School Renewal Program who explains that the strategies underlying such program are not “typically dependent on additional physical space or physical improvements, but rather on educational strategies, community partnerships, training and robust DOE oversight.”
In any event, to the extent petitioners assert that building X145 has insufficient space for the proposed temporary co-location, they have failed to meet their burden. The record indicates that X145 is currently underutilized and will continue to be underutilized at the end of the three-year period. According to the BUP, building X145 has the capacity to serve 1,737 students. Currently, building X145 serves approximately 920 students, yielding a utilization rate of 53%. Beginning in the 2015-2016 school year, SA – Bronx 3 will serve students in third grade. SA – Bronx 3 will add one grade per year until it reaches its full complement of grades in the X145 building, serving grades three through five in 2017-2018. In 2017-2018, when SA – Bronx 3 is at full scale in X145, approximately 1,070-1,280 total students will be served in X145, yielding a projected utilization rate of approximately 62-74%.
Further, according to the EIS, before the end of the temporary three-year co-location, DOE will re-evaluate this proposal to determine the long-term siting for SA – Bronx 3. This includes the possibility of SA – Bronx 3’s grades three through five remaining at the X145 building or all or part of these grades moving to a new site. Any resulting significant changes will be described in a future EIS and will be subject to separate approval by the PEP in accordance with Chancellor’s Regulation A-190.
Petitioners also assert that that DOE failed to adequately address the safety issues regarding co-locating middle and elementary school students in the same building. I note that previous Commissioner’s decisions have upheld the co-location of elementary school students and middle school students as well as the co-location of elementary and high school students (see e.g., Appeal of Williams, et al., 53 Ed Dept Rep, Decision No. 16,548; Appeal of Wright, 52 id., Decision No. 16,457; Appeal of T.T., 51 id., Decision No. 16,361; Appeal of McCall, 51 id., Decision No. 16,257). Education Law §2853(3)(a-3)(2)(D) states that the BUP must address “building safety and security,” but does not specify the information that a BUP should include and DOE is afforded a “considerable measure of discretion in this regard” (see Mulgrew, et al. v. Bd. of Educ. of the City School Dist. of the City of New York, et al., 75 AD3d 412 [1st Dept 2010]). 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 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. Accordingly, I conclude that petitioners have failed to establish that the BUP is in any way deficient in this respect.
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: GLADYS ALVAREZ, parent of Brailin Aleman; NECHELLE ARMSTEAD, parent of Shante; ANDREA ANTIGUA, parent of Felix Manuel Paulino; SUSANA ARROYO, parent of Shannon; ERIKA BATISTA, parent of Victor Perez; VILMA BERNUDEZ, parent of Crystal Tirado; APRIL BLACK, parent of Issac Lynch; MARIANA BONIFACIO DE ORTIZ, parent of Manuel Orti; SILVIA BRITO, parent of Jose Severin; CHANELLE BROWN, parent of Andrew Alston; SANTIAGO CABRERA, parent of Franchezcka and Francisco; KARINA CADLE, parent of Zachary Robateau; CLAUDIA CARDOSO, parent of Ashlee Melendez; IOMARA CASSO, parent of Jeremy; ANA CASTILLO, parent of Mariangylis Rodriguez; AMALFIS CERDA, parent of Moises Bautista; MARITZA CHIRINO, parent of Jessy Palacios; JUAN CONTRERAS, parent of Wendy and Nayely; SHARON CROSS, parent of Tahj Martin; JOSE CRUZ, parent of Johan; XENIA CRUZ, parent of Emily Cuevas; EDITH CUATILE, parent of Daniel Lopez; DANIEL TESHA, parent of Djon Brazier and Dazani Brazier; JAMEL DAVIS, parent of Jenell and Mhea; JESSIE DAVIS, parent of Royston Phipps; TANYA DEJESUS, parent of Darius; LISSETTE DEL C MEDINA, parent of Nicaury Taveras; CARMEN DE LA CRUZ, parent of Alam Astacio; ZOILA DE LUNA parent of Ditmas Perez; CEDRIC DEW JR, parent of Elijah Lee; MAGDALENA ESPINOZA, parent of Gabriela Martinez; ROSA FERMIN, parent of Jordy Rosarios; MARIA FERMIN, parent of Zahira; GAFRATU FLATIOU, parent of Yahiza and Hawawu; ANTONIO FLORES, parent of Christian Campis; NOMINATO FOFANA, parent of Aichatou; RUBYATOU FOFANA, parent of Mohamadou; MILEDY FRIAS, parent of Anthony; DANNY FUENTES, parent of Andres Bruzan Michael; CARMEN GARCES, parent of Alondra Uribe; BEATRIZ GARCIA, parent of Kelvin; SHARON GARDENHIRE, parent of Gerald; CARLOS GONZALEZ, parent of Carlos; ISABELLE GONZALEZ, parent of Jasmyn; JUDNA GONZALEZ, parent of Andres Brujan; MARIA GONZALEZ DE ESPINAL, parent of Yasneiry Plasencia Gonzalez; ROSANNA GRULLON, parent of Jeslin Duran; MARINO GUABA, parent of Marino and Anthony; MARGARET GUADALUPE, parent of Justin Moore; LINDA GUERRJDO, parent of Juan Alvarez; MIGUEL GUZMAN, parent of Jennifer,; LAUREEN HALL, parent of Luis Shar; LYDIA HAMPTON, parent of Lillian Atkinson; FREDDY HENRIQUEZ, parent of Jeanelle,; JAVIER HERNANDEZ, parent of Oscar Flores; STEPHANIE HERNANDEZ, parent of Chelsy Rodriguez; JENNY HIDALGO, parent of Emmy; DJAMILATOU IDRISSOU, parent of Shams Gebreel; NICHOLAS JONES, parent of Hope Gittens; DOUSSOU KEITA, parent of Sandaly Kourama,; DAVID KELLY, parent of Beatrice; GLORJA KHAN, parent of Tristan; KELLY LANDSMAN, parent of Justin Fahie; MARIA LEONARDO, parent of Joel Perez; LIANA LIPEDUSI, parent of Keith Roberts, SONIA LIZARDO, parent of Ariel; CHANEL LORA, parent of Justin Caraballo; ERICKSON LOPEZ, parent of Jolm Lopez Peralta; SANDRA LOPEZ, parent of Jsabela; FANY LUCERO, parent of Yadira Orellana; NEFTALI MALDONADO, parent of Neftali; DEYSI MANCEBO, parent of Neysi Bovia; TAYSHA MANNERS, parent of Tiara and Tiana Masso; CHIFFON MARSHALL, parent of Larnya Bradley; CATALINA MARTINEZ, parent of Jamil Suazo; KEILYN MARTINEZ, parent of Kimberlee Rivas; MARLENE MARTINEZ, parent of Lauren Perez; ROSANNA MARTINEZ, parent of Aylin Reyes; WRJLEY MCINNIS, parent of Matthew McInnis; YNELDA MEJIA DE VELASQUEZ, parent of Ysrael; DINA MENA, parent of Dina; FELICIANO MENDEZ, parent of Christopher; GRACE MENSAH parent of Raphael and Rachel Marto; GISSELL MIRANDA, parent of Alexandria and Michelle; LUDENNY MONTILLA RODRIGUEZ, parent of Sandy and Sainy; CARLOS MOSQUERA, parent of Diana Mosquera-Lopez; DEVAUGHN MORGAN, parent of Nimeesha; ROBERTO MUNOZ, parent of Angel; CAROLINA NUNEZ CEPEDA, parent of Jharnbieris De Pena; WANDALIS NUNEZ, parent of Aliyah Paredes; MARGARITA OLMEDO, parent of Richard; LUCRECIA ORTIZ, parent of Madeline and Zuleima Baez; TERRY OUTLAW, parent of Aiyana; ROBERTO PAULINO, parent of Luz Reyes; FLOR PAULINO, parent of Luz Reyes; JUAN PEGUERO, parent of Isaneris; CARMEN PEREZ, parent of Kevin Matilde; DIANA B. PEREZ, parent of Bianmy De La Cruz; FRANKLIN PEREZ, parent of Luiz; YAHAIRA PEREZ DE CASTILLO, parent of Steward Perez and Raydira Perez; MISAEL PORTILLO, parent of Ivonne Urias Silva; INEZ QUEZADA, parent of Leslie; FLOR RAMIREZ, parent of Miguez Breton and Massie Olivares; HERMINIA REYES, parent of Christofer; BEATRlCE RlCHARDSON, parent of Beatrice Kelly; JACQUELINE RIVERA, parent of Jacquewry Polanco; JOCELYN RODRIGUEZ, parent of Lianis; ROSIO RODRIGUEZ, parent of William; YINAIRA RODRIGUEZ, parent of Rafael and Luis Diaz; CARMEN ROMERO, parent of Corina and Jessie Genao; ESPERANZA ROMERO, parent of Carlos Romero; NIDIA ROSARIO, parent of Jason Frias; MYRNA SANCHEZ, parent of Johnny Rosado; ONEIDA SANTOS, parent of Oscar; LUBERTHA SIMMONS, parent of Angelique Green; ALTAGRACIA SOSA, parent of Abril Arias; LUSCRIDA SOTO, parent of Ariel Pena; SAFIATOU SOUMAH, parent of Bagayoko Mah; DIONADA SUAREZ, parent of Tiara Sandoval; MARIA TAVERAS, parent of Emily Saloman; OLOGARIO TEUTLE, parent of Luis; DIGNO TEJADA, parent of Christopher; LILIAN TEJEDA, parent of Brian Martinez; RAMON TORRES, parent of Enmanuel; FATOU TOUNKARA, parent of Niouma Drame; FATOUMATA TOUNKARA , parent of Mariame Fox; MAKALE TOUNKARA, parent of Diaraye Kake; MOHAMMED TOURAY, parent of Sata; CRYSTAL TURNER, parent of Dae'Quan; NORMA VALERA, parent of Mykell De Los Santos; SUSANA VARGAS, parent of Ariana and Tatiana Lopez; ROBERT VILLEGAS, parent of Naisha; ALBACEL Y VILORIO DE REYES, parent of Albany Santos Vilorio; RAYMUNDA VIVALDO, parent of Almurosa Diaz; MELODY WALKER, parent of Nylah Warren; HELLENNA WILLIAMS, parent of Asha Browne; GAIL WILSON, parent of Michael Ogarro.
 The record indicates that eight PEP members voted in favor of the proposal, while five members voted against it.
 Section 276.11(c)(2) of the Commissioner’s regulations requires that the petition in an expedited appeal pursuant to Education Law §2853(3) contain a specific form notice, or it shall be deemed non-expedited (8 NYCRR §276.11[c]-). Petitioners’ notice does not include the required language, including any reference to Education Law §2853(3), and also contains the wrong dates for service and filing of the answer. Although I have considered this appeal on an expedited basis due to an administrative error on the part of the State Education Department, I remind petitioners in appeals commenced pursuant to Education Law §2853(3) to review and use the exact form notice in 8 NYCRR §276.11(c)(2) to ensure that such appeals are treated on an expedited basis.
 Despite a request from my Office of Counsel, petitioners’ attorney did not provide such affidavit.
 Indeed, the petition states that “25% of Petitioners have children who have been found by [DOE], to have educational disabilities sufficient to warrant Individual Education Plans [sic]. The names of these parents can be supplied, if necessary, but in a public document the privacy of the children involved prevents the inclusion of the individual names.”