Appeal of CLASSICAL CHARTER SCHOOLS, on behalf of SOUTH BRONX CLASSICAL CHARTER SCHOOL II, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,350

(March 15, 2018)

Law Offices of Eric J. Grannis, attorney for petitioner, Eric J. Grannis, Esq., of counsel

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

ELIA, Commissioner.--Petitioner, Classical Charter Schools,[1] an existing education corporation with authority to operate South Bronx Classical Charter School II (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the school at DOE’s expense and at no cost to petitioner, as required by Education Law §2853(3)(e).  The appeal must be dismissed.

Petitioner is authorized by the Board of Regents to operate the school, which is currently authorized to and does serve students in kindergarten through grade 5 in Community School District (“CSD”) 7.  The school’s current charter term expires at the end of the 2017-2018 school year and petitioner’s application to the Board of Regents to renew the school’s charter is pending.  Petitioner’s pending renewal application includes a request to revise the school’s charter to expand to serve students in grades 6 through 8.

By letter to DOE, dated January 17, 2018, the school requested co-location in a public school building pursuant to Education Law §2853(3)(e).  In its letter, the school indicated that it was “in the process of charter renewal, and if granted a renewal, will expand to Grades 6-8 starting in the 2018-2019 academic year.”  By letter dated January 17, 2018, 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 any 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).

In its answer, respondent admits that it has not offered petitioner space for the school and that petitioner “is eligible for a finding in its favor.”

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, petitioner has not alleged that it has been approved by its charter entity to expand to serve students in grades 6 through 8, the grades for which it is seeking facilities assistance, and there is nothing in the record evidencing such approval.  Indeed, as noted above, in its January 17, 2018 request for space, petitioner indicated that the school was “in the process” of charter renewal, and “if granted a renewal, will expand to Grades 6-8 starting in the 2018-2019 academic year.”[2]  Petitioner has failed to demonstrate that the school requires additional space due to an expansion of grade level approved by its charter entity, as required by Education Law §2853(3)(e).  As petitioner has failed to meet all the statutory criteria for an award of space pursuant to Education Law §2853(3)(e), it has not met its burden of establishing the facts upon which it seeks relief.  Accordingly, the appeal must be dismissed.

Although petitioner’s claim in this appeal is premature, as well as speculative at this juncture, upon approval of the school’s renewal charter, petitioner may request space based upon any expansion of grade level resulting from the terms of such renewal charter, as approved by its charter entity (see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,788).

THE APPEAL IS DISMISSED.

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