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Decision No. 17,474

Appeal of ASCEND CHARTER SCHOOLS, on behalf of BROOKLYN ASCEND CHARTER SCHOOL, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,474

(August 7, 2018)

Herrick, Feinstein LLP, attorneys for petitioner, Leah Kelman and Maame Esi Austin, Esqs., of counsel

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

ELIA, Commissioner.--Petitioner, Ascend Charter Schools, an existing education corporation with authority to operate Brooklyn Ascend Charter School (“Brooklyn Ascend” or “the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner 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 multiple charter schools, including Brooklyn Ascend.  The school is currently authorized to serve students in kindergarten through grade 12.  Brooklyn Ascend was originally authorized by respondent’s Chancellor as a separate education corporation, also called “Brooklyn Ascend Charter School.”  Its initial charter was issued in 2008 and was renewed in 2013.  In 2016, Brooklyn Ascend Charter School was merged with petitioner, Ascend Charter Schools, with SUNY as the authorizer.  Prior to the 2018-2019 school year, Brooklyn Ascend served students in kindergarten through grade 11 in private space at multiple locations.  In February 2018, Brooklyn Ascend’s charter was renewed by SUNY through June 30, 2023, and the school was authorized to expand to serve students in grade 12 in the 2018-2019 school year.[1] 

On June 13, 2018, petitioner submitted a written request for co-location for Brooklyn Ascend for grade 12, pursuant to Education Law §2853(3)(e), using DOE’s online “Portal.”[2]  By letter dated June 15, 2018, DOE acknowledged petitioner’s request for Brooklyn Ascend, but stated that it would “not be extending an offer of space at this time.”  This appeal ensued.[3] 

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 for grade 12 for Brooklyn Ascend, in accordance with Education Law §2853(3)(e)(5).

In its answer, respondent admits that it failed to offer petitioner a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for grade 12 for Brooklyn Ascend at no cost to petitioner, and that petitioner is eligible for a finding in its favor, but 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 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 it any facilities for Brooklyn Ascend’s grade 12 at respondent’s expense, 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, DOE admits that it responded to petitioner’s June 13, 2018 request and that it did not offer space to petitioner for the school.  However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space for Brooklyn Ascend’s grade 12 in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to petitioner.  As DOE has not offered any facilities for the school 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, in February 2018, Brooklyn Ascend was approved by its charter entity to expand to serve students in grade 12.  The school will expand to serve students in grade 12 in the 2018-2019 school year, an expansion for which it requires additional space.  Therefore, on the record before me, I find that petitioner has established that Brooklyn Ascend 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’s grade 12 (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 grade encompassed by the charter referenced herein, rental assistance based on student enrollment in the newly-added grade 12 for which the school has been approved to provide instruction.[4]  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 12, commencing in the 2018-2019 school year, and in each remaining year of the current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter school serves the grade encompassed by the charter referenced herein, an amount attributable to its expansion to grade 12 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

In this instance, there is no evidence 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 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 grade 12 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 grade 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] Pursuant to §276.6 of the Commissioner’s regulations, I have taken administrative notice of the records on file with the New York State Education Department regarding this school.

 

[2] Request for Charter School Co-location in DOE Facilities, Item 2(11).

 

[3] Prior to its merger with petitioner, Brooklyn Ascend Charter School--at the time, a separate education corporation--appealed DOE’s failure to respond to its July 30, 2014 request for co-location space for grades 8 through 11.  On February 26, 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 Brooklyn Ascend Charter School, 54 Ed Dept Rep, Decision No. 16,720). 

 

[4] 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).