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Decision No. 17,124

Appeal of ICAHN CHARTER SCHOOL 6 from action of the New York City Department of Education regarding school utilization.

Decision No. 17,124

(July 18, 2017)

Simpson Thacher & Bartlett LLP, attorneys for petitioner, William T. Russell, Jr., David Elbaum and Meredith Karp, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Thomas B. Roberts, Esq., of counsel

ELIA, Commissioner.--Petitioner, Icahn Charter School 6 (“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 other 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”) and in the 2016-2017 school year served students in kindergarten through grade 6 in Community School District (“CSD”) 9.[1]  Its provisional charter was issued in September 2011 and it commenced instruction in the 2012-2013 school year.  In January 2017, SUNY renewed petitioner’s charter and approved petitioner’s request to revise its charter to expand to serve students in grades 7 and 8.  Commencing in the 2017-2018 school year, in addition to serving students in kindergarten through grade 6, petitioner will expand to serve students in grade 7, and in the 2018-2019 school year, petitioner will expand to serve students in grade 8.

By letter to DOE dated May 2, 2017, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e).  By letter dated May 16, 2017, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).[2]

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 May 2, 2017, petitioner requested co-location space in a public school building for its expansion to grades 7 and 8 commencing in the 2017-2018 school year.  The record indicates that, in its May 16, 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.

The record in this case indicates that petitioner served students in kindergarten through grade 6 in the 2016-2017 school year.  The record further indicates that petitioner was approved by its charter entity in January 2017 to expand to serve students in grades 7 and 8.  Petitioner will expand to serve students in grade 7 in the 2017-2018 school year, and grade 8 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 that was approved by its charter entity for the 2014-2015 school year or thereafter.  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 7 and 8 for which it has been approved to provide instruction.[3]  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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

Therefore, DOE must pay petitioner for the school’s newly-added grades 7 and 8, commencing in the 2017-2018 school year with grade 7, 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, an amount attributable to its expansion to grades 7 and 8 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately-owned site 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).

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

THE APPEAL IS SUSTAINED.

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 7 commencing with the 2017-2018 school year and grade 8 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 calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

END OF FILE

 

[1] Petitioner’s kindergarten through grade 4 are co-located in Building X004 with existing DOE schools.  With respect to petitioner’s grades 5 and 6, petitioner appealed DOE’s failure to offer it access to facilities pursuant to Education Law §2853(3)(e) to Supreme Court, New York County (see Icahn Charter School 6 v. The New York City Department of Education, Index No. 100083/2015), and, by decision dated October 9, 2015, the court granted petitioner’s petition.  By order dated November 23, 2015, the court ordered rental assistance for grades 5 and 6 as “set forth in New York Education Law §2853(3)(e)(5).”  Petitioner’s grades 5 and 6 are located in private space.

 

[2] Effective July 1, 2017, Education Law §2853(3)(e)(5) has been amended to increase the percentage in the rental assistance formula from 20 percent to 30 percent.

 

[3] 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).