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

Decision No. 17,413

(June 21, 2018)

Cohen Schneider Law, P.C., attorneys for petitioner, Susan R. Briggs and Cory S. Storch, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Christopher Ferreira, Esq., of counsel

BERLIN, Acting Commissioner.--Brooklyn Laboratory Charter Schools, an existing education corporation with authority to operate the Edmund W. Gordon Brooklyn Laboratory Charter School (“EWG” or “the school”), formerly known as Brooklyn Laboratory Charter High School[1], challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner a co-location site for EWG 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.

As noted above, petitioner is authorized by the Board of Regents (“Regents”) to operate two schools: EWG, the subject of this appeal, and Brooklyn Laboratory Charter School, which was initially chartered by the Regents in December 2013.  EWG is authorized to serve students in grades 6 through 12 in Community School District 13.  EWG’s initial charter was issued in June 2016 for a five-year term.  At that time, the school was authorized to serve grades 9 through 12.  The school requested and was granted a planning year, thereby postponing its opening for instruction until the 2018-2019 school year.  As further noted, in March 2018, the school was authorized to expand its grade levels to serve students in grades 6 through 8.  When it commences instruction in the 2018-2019 school year, the school will serve students in grade 6.  In the 2019-2020 school year, EWG will serve students in grades 6, 7, and 9.[2]  In the 2020-2021 school year, it will add grades 8 and 10, thereby serving students in grades 6 through 10.  In the 2021-2022 school year, it will add grade 11, thereby serving students in grades 6 through 11.  In the 2022-2023 school year, EWG will add grade 12, thereby serving students in grades 6 through 12.

On April 23, 2018, petitioner requested co-location space for EWG for grades 6 through 8, pursuant to Education Law §2853(3)(e).[3]  By letter dated April 25, 2018, DOE acknowledged petitioner’s request, but stated that it would “not be extending an offer of space at this time.”[4]  This appeal ensued. 

Petitioner asserts that DOE failed to offer it any facilities for EWG in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay rental assistance for grades 6 through 8 in accordance with Education Law §2853(3)(e)(5).

In its answer, respondent admits that it has not offered petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the school and that petitioner is eligible for a finding in its favor, but requests that the appeal be dismissed in its entirety.

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 P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884).

Petitioner asserts that DOE failed to offer EWG a co-location site in a public school building or space in a privately-owned or other publicly-owned facility, 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 April 23, 2018, petitioner requested co-location space for EWG’s expansion to serve grades 6 through 8.  The record indicates that in its April 25, 2018 response to petitioner’s request for co-location space, DOE stated 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 EWG in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space for EWG in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to petitioner.  Instead, DOE indicated in its April 25, 2018 response only that it would not be extending an offer of space.  As DOE did not offer petitioner space for EWG in a privately-owned or publicly-owned facility, at the expense of the city school district and at no cost to petitioner, it 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 EWG was approved by its charter entity in March 2018 to expand to serve students in grades 6 through 8.  The school will expand to serve students in grade 6 in the 2018-2019 school year, grade 7 in the 2019-2020 school year, and grade 8 in the 2020-2021 school year, expansions for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that the school 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 2018-2019 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 6 through 8 for which the school has 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 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 grade 6 commencing in the 2018-2019 school year, grade 7 commencing in the 2019-2020 school year, and grade 8 commencing in the 2020-2021 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 expansion to grades 6 through 8 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

In this instance, there is no evidence in the record that petitioner has 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).

Nothing herein should be construed to prevent DOE from offering petitioner co-location space for EWG 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 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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