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Decision No. 17,063

Appeal of SUCCESS ACADEMY CHARTER SCHOOLS – NYC, on behalf of SUCCESS ACADEMY CHARTER SCHOOL – BRONX 1, SUCCESS ACADEMY CHARTER SCHOOL – BRONX 2, SUCCESS ACADEMY CHARTER SCHOOL – HARLEM 3, SUCCESS ACADEMY CHARTER SCHOOL – HARLEM 4 and SUCCESS ACADEMY CHARTER SCHOOL – HARLEM 5, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,063

(March 15, 2017)

Emily A. Kim, Jessie M. Ferguson and Aaron M. Safane, Esqs., attorneys for petitioner

Zachary W. Carter, Corporation Counsel, attorney for respondent, Evan Schnittman, Esq., of counsel

ELIA, Commissioner.--Petitioner, Success Academy Charter Schools – NYC (“SACS – NYC”), an existing education corporation with authority to operate Success Academy Charter School – Bronx 1 (“SA Bronx 1”), Success Academy Charter School – Bronx 2 (“SA Bronx 2”), Success Academy Charter School – Harlem 3 (“SA Harlem 3”), Success Academy Charter School – Harlem 4 (“SA Harlem 4”) and Success Academy Charter School – Harlem 5 (“SA Harlem 5”) (collectively “the SA Schools”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner, on behalf of each school, a co-location site in a public school building or space in a privately-owned or publicly-owned facility at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be sustained.

Petitioner is authorized by the Board of Trustees of the State University of New York (“SUNY”) to operate the SA Schools.  SA Bronx 1 and SA Bronx 2 opened for instruction in the 2010-2011 school year and, according to petitioner, currently serve students in kindergarten through grade seven.  The charters for both schools were renewed in 2015 for five-year terms.[1]  Both schools will add grade 9 in the 2018-2019 school year and grade 10 in the 2019-2020 school year.

SA Harlem 3 and SA Harlem 4 opened for instruction in the 2008-2009 school year.  The charters for both schools were renewed in 2013 for five-year terms.  According to petitioner, both schools currently serve students in kindergarten through grade nine.[2]

SA Harlem 5 opened for instruction in the 2010-2011 school year and, according to petitioner, currently serves students in kindergarten through grade 7.[3]  Its charter was renewed in 2015 for a five-year term.  It will add grade 9 in the 2018-2019 school year and grade 10 in the 2019-2020 school year.

According to the parties, on October 20, 2016, SUNY approved a second renewal of each of the SA Schools’ charters,[4] with authority to provide instruction to students in kindergarten through grade 12.

By letter to DOE dated July 29, 2016, petitioner requested space in public school buildings for “the high school grades (9-12)” of each of the SA Schools in accordance with Education Law §2853(3)(e), commencing with the 2018-2019 school year.  By letters dated December 2, 2016, DOE acknowledged petitioner’s July 29, 2016 request for space for the SA Schools’ high school grades, but stated that “[w]e will not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE denied its request for space and failed to offer approved high school space for the SA Schools in violation of its statutory obligation to do so.  It seeks an order directing DOE to provide rental assistance for the SA Schools’ high school grades.

Respondent requests that the appeal be dismissed in its entirety.

Preliminarily, I note that this appeal was commenced pursuant to Education Law §2853(3)(e), which was added by Part BB of Chapter 56 of the Laws of 2014.  Education Law §2853(3)(e)(3) provides that a charter school in the City School District of the City of New York shall have the option of appealing the “city school district’s offer or failure to offer a co-location site through ... an expedited appeal to the commissioner” pursuant to Education Law §310 and the procedures prescribed in Education Law §2853(3)(a-5).  Pursuant to Education Law §2853(3)(e)(3), in any such appeal, the standard of review shall be the standard prescribed in Civil Practice Law and Rules (“CPLR”) §7803.

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).

Petitioner asserts that DOE denied its request for space for the SA Schools and failed to offer it approved high school space for the SA Schools in violation of Education Law §2853(3)(e).  Education Law §2853(3)(e) provides that, in the City School District of the City of New York, charter schools that require additional space due to an expansion of grade level approved by their charter entity for the 2014-2015 school year or thereafter, and request co-location in a public school building, shall be provided access to facilities.  The statute also requires that, within the later of five months after a charter school’s written request for co-location and 30 days after the charter school’s charter is approved by the charter entity, the city school district shall offer the charter school either a co-location site in a public school building approved by the board of education as provided by law at no cost to the charter school, or space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no cost to the charter school (Education Law §2853[3][e][1]).

Here, on July 29, 2016, petitioner made a written request for co-location space in a public school building for the SA Schools’ “high school grades (9-12)” commencing with the 2018-2019 school year.  The record indicates that in its responses, DOE stated only that it would “not be extending an offer of space at this time.”  However, in the event that DOE did not offer petitioner a co-location site for the SA Schools in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately-owned or other publicly-owned facility at the expense of the city school district and at no cost to petitioner.  Instead, DOE indicated in its responses only that it would not be extending an offer of space.  As DOE did not offer petitioner space for the SA Schools in a privately-owned or other publicly-owned facility at the expense of the city school district and at no cost to petitioner, DOE failed to comply with the requirements of Education Law §2853(3)(e)(1).

The standard of review in an appeal pursuant to Education Law §2853(3)(e) is the standard prescribed in CPLR §7803, which lists questions that may be raised in a proceeding brought pursuant to Article 78.  The question set forth in CPLR §7803(1) is whether the body or officer failed to perform a duty enjoined upon it by law.  The question set forth in CPLR §7803(3) is whether a determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion, including abuse of discretion as to the measure or mode of penalty or discipline imposed.  Although Education Law §2853(3)(e)(3) does not specify which specific provision of CPLR §7803 applies, I find that under either subdivision (1) or (3), petitioner has carried its burden of establishing the facts and law upon which it seeks relief.

With respect to SA Bronx 1 and SA Bronx 2, the record indicates that both schools have been approved by SUNY to expand to serve students in grades 9 through 12, for which petitioner requested space.  They will serve students in grade 9 in the 2018-2019 school year, grade 10 in the 2019-2020 school year, and grades 11 and 12 in the subsequent two school years, expansions for which they require additional space.  Therefore, on the record before me, petitioner has established that SA Bronx 1 and SA Bronx 2 require additional space due to an expansion of grade level that was approved by their charter entity for the 2014-2015 school year or thereafter.  Petitioner has, thus, met all the statutory criteria and I am constrained to find that petitioner is entitled either to a co-location or to an offer of private or other publicly-owned space for SA Bronx 1 and SA Bronx 2 (see Education Law §2853[3][e]).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner rental assistance based on student enrollment in the newly-added grade level(s) for which SA Bronx 1 and SA Bronx 2 have been approved to provide instruction.[5]  Specifically, with respect to an existing charter school whose expansion of grade level is approved by its charter entity, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article ... the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, DOE must pay petitioner for SA Bronx 1’s and SA Bronx 2’s newly-added grade(s), commencing in the 2018-2019 school year, an amount attributable to their expansion for grades 9 through 12 that is equal to the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the then-current school year (i.e. the 2018-2019 school year) and the positive difference of each school’s enrollment in the then-current school year (i.e. the 2018-2019 school year) minus each school’s enrollment in the school year prior to the first year of expansion (i.e. the 2017-2018 school year).

With respect to SA Harlem 3 and SA Harlem 4, the record indicates that both schools have been approved by SUNY to expand to serve students in grades 9 through 12, for which petitioner requested space.  They will serve students in grade 9 in the 2018-2019 school year and will ultimately serve students through grade 12 in the 2021-2022 school year, expansions for which they require additional space.  Therefore, on the record before me, petitioner has established that SA Harlem 3 and SA Harlem 4 require additional space due to an expansion of grade level that was approved by their charter entity for the 2014-2015 school year or thereafter.  Petitioner has, thus, met all the statutory criteria and I am constrained to find that petitioner is entitled either to a co-location or to an offer of private or other publicly-owned space for SA Harlem 3 and SA Harlem 4 (see Education Law §2853[3][e]).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner rental assistance based on student enrollment in the newly-added grade level(s) for which SA Harlem 3 and SA Harlem 4 have been approved to provide instruction.[6]  Specifically, with respect to an existing charter school whose expansion of grade level is approved by its charter entity, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article ... the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, DOE must pay petitioner for SA Harlem 3’s and SA Harlem 4’s newly-added grade(s), commencing in the 2018-2019 school year, an amount attributable to their expansion for grades 9 through 12 that is equal to the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of each school’s basic tuition for the then-current school year (i.e. the 2018-2019 school year) and the positive difference of each school’s enrollment in the then-current school year (i.e. the 2018-2019 school year) minus each school’s enrollment in the school year prior to the first year of expansion (i.e. the 2017-2018 school year).[7]

With respect to SA Harlem 5, the record indicates that it has been approved by SUNY to expand to serve students in grades 9 through 12, for which petitioner requested space.  SA Harlem 5 will expand to serve students in grade 9 in the 2018-2019 school year, grade 10 in the 2019-2020 school year, and grades 11 and 12 in the subsequent two school years, expansions for which it requires additional space.  Therefore, on the record before me, petitioner has established that SA Harlem 5 requires additional space due to an expansion of grade level that was approved by its charter entity for the 2014-2015 school year or thereafter.  Petitioner has, thus, met all the statutory criteria and I am constrained to find that petitioner is entitled either to a co-location or to an offer of private or other publicly-owned space for SA Harlem 5 (see Education Law §2853[3][e]).

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner rental assistance based on student enrollment in the newly-added grade level(s) for which SA Harlem 5 has been approved to provide instruction.[8]  Specifically, as noted above, with respect to an existing charter school whose expansion of grade level is approved by its charter entity, “if the appeal results in a determination in favor of the charter school, the city school district shall pay the charter school an amount attributable to the grade level expansion ... that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and ... (ii) for a charter school which expands its grade level, pursuant to this article ... the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, DOE must pay petitioner for SA Harlem 5’s newly-added grade(s), commencing in the 2018-2019 school year, an amount attributable to its expansion for grades 9 through 12 that is equal to the lesser of the actual rental cost of an alternative privately-owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the then-current school year (i.e. the 2018-2019 school year) and the positive difference of the charter school’s enrollment in the then-current school year (i.e. the 2018-2019 school year) minus the charter school’s enrollment in the school year prior to the first year of expansion (i.e. the 2017-2018 school year).

In this instance, petitioner also has not been afforded the opportunity to select alternative privately-owned sites for the SA Schools and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of alternative privately-owned sites so that DOE can determine whether such rental cost is less than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

Nothing herein should be construed to prevent respondent from offering petitioner co-location space for the SA Schools in the future.

In light of this disposition, I need not consider petitioner’s remaining contentions.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that respondent comply with the requirements of Education Law §2853(3)(e)(5) and pay petitioner, commencing with the 2018-2019 school year, for the SA Schools’ newly-added grades 9 through 12, in accordance with this decision.

END OF FILE

 

[1] Pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of the records pertaining to the SA Schools on file with the State Education Department.

 

[2] Respondent denies this allegation and affirmatively states that both schools currently serve students in kindergarten through grade eight.  However, the parties do not dispute that SA Harlem 3 and SA Harlem 4 will be serving grade 9 in the 2018-2019 school year.  In this appeal, petitioner is challenging DOE’s failure to offer space for the SA Schools’ high school grades commencing in the 2018-2019 school year.  

 

[3] In its petition, petitioner alleges that SA Harlem 5 opened for instruction in the 2011-2012 school year.  However, respondent denies this claim and pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of the records pertaining to the school on file with the State Education Department, which indicate that SA Harlem 5 opened for instruction in the 2010-2011 school year.

 

[4] The renewal applications were received by the State Education Department on January 3, 2017 to be acted upon by the Board of Regents on or before April 3, 2017 (Education Law §2852[5-a]).

 

[5] To be eligible for an apportionment pursuant to Education Law §3602(6-g) where the charter school has prevailed in an appeal to the Commissioner pursuant to Education Law §2853(3)(e), DOE must document all expenses incurred pursuant to Education Law §2853(3)(e)(5) for each such charter school for the term of the charter indicated in the Commissioner’s decision, including any renewals pursuant to Education Law §2851(4), provided that the charter school serves the grades encompassed by the charter that was the subject of the Commissioner’s decision (see New York State Education Department, Update on Facilities Assistance Guidance for NYC Charter Schools, dated November 3, 2016).  I note that, in this instance, petitioner requested co-location space only for grades 9 through 12 commencing in the 2018-2019 school year and any rental assistance to which petitioner would be entitled is limited accordingly (see Appeal of Brilla College Preparatory Charter School, 54 Ed Dept Rep, Decision No. 16,735; Appeal of Metropolitan Lighthouse Charter School, 54 id., Decision No. 16,770).

 

[6] See footnote 5.

 

[7] The verified petition submitted by petitioner states that SA Harlem 3 and SA Harlem 4 currently serve students in kindergarten through grade nine.  However, the record before me, including the records of which I have taken administrative notice, do not clearly establish the schools’ authority to serve grade nine prior to the 2018-2019 school year.  As noted above, 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).  Accordingly, based on this record, I cannot conclude that SA Harlem 3 and SA Harlem 4 were authorized to serve grade nine prior to the 2018-2019 school year and therefore find that, for purposes of the formula prescribed in Education Law §2853(3)(e)(5), the first year of expansion for SA Harlem 3 and SA Harlem 4 in this regard is the 2018-2019 school year.

 

[8] See footnote 5.