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

Decision No. 17,207

(October 3, 2017)

Sherman & Sterling LLP, attorneys for petitioner, Alan S. Goudiss and Shaina L. Schwartz, Esqs., of counsel

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

ELIA, Commissioner.--Petitioner, Brooklyn Prospect Charter School (“petitioner”), an existing education corporation with authority to operate Brooklyn Prospect Charter School – Downtown (“BPCS-Downtown” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site for the school 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”) to operate two schools, BPCS-Downtown, the subject of this appeal, and Brooklyn Prospect Charter School (“BPCS”),[1] which was initially chartered by the Board of Regents in July 2008.  BPCS has authority to provide instruction to students in kindergarten through grade 12 and operates its middle and high school grades (grades 6 through 12) in Community School District (“CSD”) 15.[2]  In the 2013-2014 school year, BPCS began operation of its elementary school, serving students in kindergarten and, according to the “affirmation” of petitioner’s Deputy Executive Director, originally operated its “lower school classes, including kindergarten” in CSD 13.  Petitioner’s Deputy Executive Director also stated:

In an effort to facilitate the application and enrollment process for parents and students in School District 13, [petitioner] sought to consolidate grades K-8 in School District 13 as part of one school: BPCS-Downtown.

In June 2014, SUNY granted petitioner the authority to operate BPCS-Downtown to serve students in grades 6 through 8.  According to the record, BPCS-Downtown opened for instruction in CSD 13 in the 2016-2017 school year serving students in grade 6.[3]  In the fall of 2016,[4] SUNY approved petitioner’s request to revise the school’s charter to expand to serve students in kindergarten through grade 5.  The record indicates that in the 2017-2018 school year, BPCS-Downtown began serving students in kindergarten through grade 4 and in the 2018-2019 school year, BPCS-Downtown will expand to serve students in grade 5.

By letter to DOE dated August 29, 2017, petitioner requested co-location in a public school building in CSD 13 for the school’s expansion to kindergarten through grade 5 in accordance with Education Law §2853(3)(e).  By letter dated August 31, 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 for the school 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).[5]

Respondent asserts that petitioner first commenced kindergarten instruction at the CSD 13 location in the 2013-2014 school year and is not eligible for rental assistance for kindergarten pursuant to Education Law §2853(3)(e).  It claims that BPCS-Downtown’s expansion to serve kindergarten through grade 5 is “nothing more than an administrative reassignment of the kindergarten ... from one of [p]etitioner’s charters to another of [p]etitioner’s charters.”  Respondent requests that the appeal be dismissed in its entirety.[6]

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 for the school 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 August 29, 2017, petitioner requested co-location space in a public school building for the school’s elementary school grade expansion commencing in the 2017-2018 school year.  The record indicates that, in its August 31, 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 for the school in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space for the school 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 for the school 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 BPCS-Downtown was approved by its charter entity in September 2016 to expand to serve students in kindergarten through grade 5.  The record further indicates that the school began serving students in kindergarten through grade 4 in the 2017-2018 school year, and will add grade 5 in the 2018-2019 school year, expansions for which it requires additional space.

Respondent argues that petitioner is not entitled to space for the school’s kindergarten because petitioner first commenced kindergarten instruction at the same location in CSD 13 in the 2013-2014 school year.  I disagree.  As noted above, while BPCS was authorized to and did serve kindergarten students beginning in the 2013-2014 school year, BPCS-Downtown did not have approval from its charter entity to expand to serve kindergarten through grade 5 until September 2016 and, according to the record, did not commence kindergarten instruction until the 2017-2018 school year.

Therefore, on the record before me, I find that petitioner has established that BPCS-Downtown 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 for the school (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 elementary school grades for which the school has been approved to provide instruction.[7]  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 BPCS-Downtown’s newly-added elementary school grades, commencing in 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, an amount attributable to its elementary school grade expansion 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 present DOE with evidence of the actual rental cost of an alternative privately-owned site for the school 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 school 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 the school’s newly-added elementary school grades 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).

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