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Decision No. 17,085

Appeal of DEMOCRACY PREP ENDURANCE CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 17,085

(May 10, 2017)

Gibson, Dunn & Crutcher LLP, attorneys for petitioner, Andrea E. Neuman, Esq., of counsel

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

Berlin, Acting Commissioner--Petitioner, Democracy Prep Endurance Charter School (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it 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 in part.

Petitioner is authorized by the Board of Regents (“Regents”) and currently serves students in grades 6 through 10.[1]  Its initial charter was issued in 2010, at which time it was authorized to serve students in sixth through eighth grade.  Petitioner first opened for instruction in the 2012-2013 school year serving students in sixth grade.  It added grade seven in the 2013-2014 school year and grade eight in the 2014-2015 school year.

In March 2015, the Regents approved a revision to petitioner’s charter authorizing it to expand to serve students in grades 9 and 10.  Commencing in the 2015-2016 school year, in addition to serving students in sixth through eighth grade, petitioner expanded to serve students in ninth grade, and, in the 2016-2017 school year, petitioner expanded to serve students in tenth grade.[2]

In March 2017, the Regents renewed petitioner’s charter for a five-year term.  The Regents also approved another revision to petitioner’s charter authorizing it to expand to serve students in grades 11 and 12, and kindergarten through grade 4 (“elementary school expansion”).  Commencing in the 2017-2018 school year, petitioner will expand to serve students in grade 11, and, in the 2018-2019 school year, petitioner will expand to serve students in grade 12.  According to its charter, petitioner plans to begin its elementary school expansion in the 2017-2018 school year by serving students in kindergarten.  It plans to add an additional elementary grade each year through the end of its current charter term in 2022, when it will serve students in kindergarten through grade 4, as well as grades 6 through 12.

By letter to DOE dated December 22, 2016, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its expansion to grades 11 and 12, as well as its elementary school expansion commencing in the 2017-2018 school year.[3],[4]  By letter dated February 21, 2017, DOE acknowledged petitioner’s request for co-location space, but stated that “[w]e will not be extending an offer of space at this time.”[5]  This appeal ensued.

Petitioner asserts that DOE failed to offer it a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, at no cost to petitioner, in violation of its statutory obligation to do so.  It seeks an order directing DOE to comply with its statutory obligation under Education Law §2853(3)(e)(5) and pay petitioner rental assistance for students in all grades for which the school has been approved to provide instruction during the term of its charter.

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 failed to offer it facilities 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, by letter dated December 22, 2016, petitioner requested co-location space in a public school building for its eleventh and twelfth grade expansion commencing in the 2017-2018 school year, as well as its planned elementary school expansion.  The record indicates that, in its February 21, 2017 response, DOE stated 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 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 response only that it would not be extending an offer of space.  As it did not 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, 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 its expansion to grades 11 and 12, the record in this case indicates that petitioner was approved by its charter entity in March 2017 to expand to serve students in grades 11 and 12.  The record indicates that petitioner will expand to serve students in grade 11 in the 2017-2018 school year, and will expand to serve students in grade 12 in the 2018-2019 school year, expansions for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level commencing with its expansion to grade 11 in the 2017-2018 school year.  Petitioner has, thus, met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly-owned space (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 commencing with the 2017-2018 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grades 11 and 12 for which it has 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 newly-added grade 11, commencing in the 2017-2018 school year and grade 12, commencing in the 2018-2019 school year, and in each remaining year of the school’s current charter term and any subsequent renewal term, provided that the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion for grades 11 and 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 2017-2018 school year in the first year) and the positive difference of the charter school’s enrollment in the then-current school year (i.e. the 2017-2018 school year in the first year) minus the charter school’s enrollment in the school year prior to the first year of expansion (i.e. the 2016-2017 school year).  As noted above, DOE is obligated to pay for facilities for the school’s expansion to grades 11 and 12 in each year of the school’s current charter term and any subsequent renewal term, provided that the charter school serves the grades encompassed by the charter referenced herein.

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

With respect to its elementary school expansion, as noted above, in its petition, petitioner states that it “has yet to determine whether it will commence operation of its newly-authorized elementary school grades in the 2017-2018 school year.”  In response to a letter from my Office of Counsel directing petitioner, pursuant to Commissioner’s regulations §276.11(g), to submit an affidavit indicating  the grades the school will serve commencing in the 2017-2018 school year, the chair of petitioner’s board of trustees submitted an affidavit stating that the school will expand to commence operation of newly-authorized grade 11 and that “[w]ith this expansion, Democracy Prep will enroll students in grades 6 through 11 in the 2017-2018 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).  Although petitioner’s December 22, 2016 letter to DOE requested space for its elementary school expansion commencing with the 2017-2018 school year, petitioner has not clearly demonstrated that it is entitled to the relief requested for its elementary school expansion.  It provides no information regarding when it will require additional space for its elementary school expansion and acknowledges in its petition that it “has yet to determine” when such expansion will occur.  As petitioner has not established that it requires additional space due to such expansion, petitioner has failed to meet its burden.  Accordingly, this claim must be dismissed.

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that respondent comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner for newly-added grade 11 commencing with the 2017-2018 school year and grade 12 commencing with the 2018-2019 school year, and for each remaining year of the current charter term and for any subsequent renewal term provided that, in any such renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to the grade-level expansion that is 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 and the positive difference of the charter school’s enrollment in the then-current school year minus the charter school’s enrollment in the school year prior to the first year of expansion.

END OF FILE

 

[1] Petitioner serves grades 6 through 8 in Community School District (“CSD”) 5 and grades 9 and 10 in CSD 4.

 

[2] Petitioner previously appealed DOE’s failure to offer space in response to its September 15, 2014 request for co-location space for its expansion to grades 9 and 10.  On May 29, 2015, a decision was issued ordering DOE to comply with the requirements of Education Law §2853(3)(e)(5) with respect to such expansion (see Appeal of Democracy Prep Endurance Charter School, 54 Ed Dept Rep, Decision No. 16,762).

 

[3] I note that petitioner requested space to expand to serve students in elementary grades, including grade five.  However, with respect to the school’s elementary grade expansion, the record indicates that at its March 2017 meeting, the Regents approved a revision to the school’s charter to serve students in kindergarten through grade four.

 

[4] I note, however, that in its petition, the school asserts that it “has yet to determine whether it will commence operation of its newly-authorized elementary school grades in the 2017-2018 school year.”

 

[5] According to the chair of the school’s board of trustees, as a result of DOE’s failure to offer space, the school will need to negotiate a new lease for private space.

 

[6] 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).