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Decision No. 17,714

Appeal of BRILLA COLLEGE PREPARATORY CHARTER SCHOOLS from action of the New York City Department of Education regarding school utilization.

Barton Gilman LLP, attorneys for petitioner, Lisa J. Holtzmuller and Paul O’Neill, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Rosemary C. Yogiaveetil, Esq., of counsel

Decision No. 17,714

(July 29, 2019)

TAHOE-Deputy Counsel--Petitioner, Brilla College Preparatory Charter Schools, an existing education corporation with authority to operate Brilla Caritas Charter School (“Caritas”) and Brilla Pax Charter School (“Pax”) (Caritas and Pax are hereinafter collectively referred to as the “schools”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner a co-location site for the schools 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 four charter schools, including Caritas and Pax.[1]  The schools are authorized to serve students in kindergarten through grade 4.  They are scheduled to commence instruction in the 2020-2021 school year.  In their first year of operation, the schools will serve students in kindergarten, and will add one grade level in each succeeding school year until they serve students in kindergarten through grade 4.

On June 5, 2019, written requests for co-location were submitted for Caritas’ kindergarten through grade 4 and Pax’s kindergarten through grade 4, pursuant to Education Law §2853(3)(e), using DOE’s online “Portal.”[2]  By letters dated June 6, 2019, DOE acknowledged the requests, 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 co-location sites in public school buildings or space in privately-owned or other publicly-owned facilities for the schools, at no cost to the schools, 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), beginning with the 2020-2021 school year and continuing thereafter.

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 the schools, at no cost to the schools, and that petitioner is eligible for a finding in its favor.

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 co-location sites in public school buildings or space in privately-owned or other publicly-owned facilities for the schools, at no cost to the schools, 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 are approved by their charter entity to first commence instruction 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, the requests for co-location space for Caritas’ kindergarten through grade 4 and Pax’s kindergarten through grade 4 were submitted on June 5, 2019.  In its June 6, 2019 responses to the requests, DOE stated that it would “not be extending an offer of space at this time.”  However, in response to the requests, DOE was required by Education Law §2853(3)(e)(1) to offer the schools space in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to the schools.  As DOE has not offered any facilities at the expense of the city school district and at no cost to the schools, 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.

In accordance with Education Law §2853(3)(e)(5), DOE is, therefore, required to pay the schools rental assistance based on student enrollment in kindergarten through grade 4 - the grades for which the schools have been approved to provide instruction - during their current charter term and any subsequent renewal term, provided that, in any such renewal term, the charter schools serve the grades encompassed by the charters referenced herein[3] (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment, not the enrollment projections set forth in the charter, for each year of the charter term.  Specifically, with respect to a new charter school, “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 formation of the new charter school ...” that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

The amounts payable to a charter school in its first year of operation shall be based on the projections of initial-year enrollment set forth in the charter until actual enrollment is reported to the school district by the charter school (see Education Law §2856[1][b]).  Such projections shall be reconciled with the actual enrollment at the end of the school’s first year of operation, and any adjustment shall be made to payments during the school’s second year of operation (see Education Law §2856[1][b]).

The record in this case indicates that the schools will first commence instruction in the 2020-2021 school year, serving students in kindergarten, and will expand one grade level in each succeeding school year until they serve students in kindergarten through grade 4.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay the schools for the requested kindergarten through grade 4 in each year of Caritas’ charter term and any subsequent renewal term, and for the requested kindergarten through grade 4 in each year of Pax’s charter term and any subsequent renewal term, provided that, in any such renewal term, the charter schools serve the grades encompassed by the charters referenced herein, an amount attributable to the formation of the new charter schools that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).  As noted above, DOE is obligated to pay for kindergarten through grade 4 in the newly-opened charter schools in each year of their initial charter term and any subsequent renewal terms, provided that, in any such renewal term, the charter schools serve the grades encompassed by the charters referenced herein; the amount payable must be based on the charter schools’ actual current year enrollment (see Appeal of Our World Neighborhood Charter School, 56 Ed Dept Rep, Decision No. 17,065; Appeal of Uncommon New York City Charter School, 56 id., Decision No. 17,010; Appeal of Rosalyn Yalow Charter School, 54 id., Decision No. 16,690).

In this instance, petitioner indicates that it anticipates utilizing privately-owned facilities for the schools.  Petitioner must present DOE with evidence of the actual rental cost of alternative privately-owned sites for the schools, 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 schools in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay Caritas and Pax an amount attributable to the formation of the new charter schools 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 petitioner and the schools.

 

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

 

[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).