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Decision No. 17,775

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

Decision No. 17,775

(October 22, 2019)

Pillsbury Winthrop Shaw Pittman LLP, attorneys for petitioner, Jeffrey P. Metzler, Esq., of counsel

Georgia M. Pestana, Acting Corporation Counsel, attorney for respondent, Thomas B. Roberts, Esq., of counsel

BERLIN., Interim Commissioner.--Petitioner, KIPP Beyond Charter School, challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site 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 in part.

Petitioner is a charter school authorized, on or about March 4, 2019, by the Board of Trustees of the State University of New York (“SUNY”).  According to the record, petitioner will commence instruction in the 2020-2021 school year.  Petitioner asserts that it is authorized to serve students in grades 5 through 12.  While petitioner has attached to its petition an unsworn letter from SUNY’s Charter School Institute (“Institute”) stating that the “SUNY Trustees approved the grades 5-12 program,” such statement is contradicted by the documents on file with the New York State Education Department (“Department”)[1] and published by the Institute.  Although respondent does not dispute petitioner’s assertion, official records on file with the Department, as well as records available publicly on the Institute’s official website, indicate that petitioner is authorized to serve grades 5 through 9.

According to the Institute’s “Summary of Findings and Recommendations:  Proposal to Authorize KIPP NYC Public Charter Schools II to Operate the Proposed KIPP Beyond Charter School,” dated March 1, 2019, “[petitioner] will open in August 2020 with 95 students in 5th grade, will add one grade level per year, and ultimately grow to serve 451 students in 5th - 9th grade during its first charter term.”  In addition, in a notice to respondent’s Chancellor, dated July 17, 2019, the SUNY Charter Schools Institute stated that, “[a]t full capacity, [petitioner] will serve ... students in grades 5-9.”  Moreover, the Institute lists petitioner with a grade span of grades 5 through 9 on its published list of “Authorized Charter Schools.”[2]  The school profile for petitioner on the Institute’s official website states, under “Grade Span,” “5-9 at End of Charter Term.”[3]  On petitioner’s “Proposal Transmittal And Summary Form,” the “Proposed Grades and Enrollment” is listed as grades 5 through 9.[4]

Notably, on October 7, 2019, a public hearing was held in Community School District 3 at which a proposal to revise petitioner’s charter was considered.  According to the “Notice of Public Hearing” issued by DOE regarding the hearing, if the revision application is approved, petitioner, which “is currently authorized to serve ... students in grades 5-9,” would be “authorized to serve ... students in grades 6-10 ....”  Had petitioner been authorized to serve students in grades 5 through 12 from the outset, a revision to its charter would not be necessary in order for it to serve students in grade 10.  Petitioner’s claim to be authorized to serve students in grades 5 through 12 is belied by the scheduling of the public hearing on October 7, 2019, as well as the above-noted documentation on file with the Department and published by SUNY’s Institute.  Thus, for the disposition of this appeal, I find that petitioner is authorized to serve students in grades 5 through 9.

On September 18, 2019, petitioner submitted a written request for co-location for grades 5 through 12, pursuant to Education Law §2853(3)(e).[5]  By letter dated September 18, 2019, DOE acknowledged the 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 co-location space, at no cost to petitioner, in violation of Education Law §2853(3)(e).  As relief, it seeks an order directing DOE to pay petitioner rental assistance in accordance with Education Law §2853(3)(e)(5).

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, 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 co-location space, at no cost to petitioner, 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, petitioner’s request for co-location space was submitted on September 18, 2019.  In its September 18, 2019 response to the request, DOE stated that it would “not be extending an offer of space at this time.”  However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space for its grades 5 through 9[6] — the grades which petitioner is currently authorized to serve — in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to the school.  As DOE has not offered any facilities at the expense of the city school district and at no cost to the school, 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 petitioner rental assistance based on student enrollment in grades 5 through 9 - the grades for which petitioner has been approved to provide instruction - during its initial 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[7] (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]).[8]

The record in this case indicates that petitioner will first commence instruction in the 2020-2021 school year, and that petitioner is currently authorized to serve students in grades 5 through 9.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner for the requested grades 5 through 9[9] in each year of the initial 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 the formation of the new charter school 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 grades 5 through 9 in the newly-opened charter school in each year of the initial 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; the amount payable must be based on the charter school’s 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, there is no evidence in the record that petitioner has been afforded the opportunity to select an alternative privately-owned site 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 in the future.

In addition, should petitioner expand, beyond its initial charter term, to serve students in grades 10 through 12, petitioner will need to request a subsequent charter revision to serve grade levels beyond those currently authorized:  grades 5 through 9.  Accordingly, petitioner’s written request for co-location for grades 10 through 12 is premature and speculative and will not be entertained in this appeal.  Upon any future action of petitioner’s authorizer, SUNY, approving a revision to petitioner’s charter to serve students in any additional grades — such as grades 10 through 12 — petitioner may request co-location space for such grades from DOE.  If DOE should deny such a request for co-location space, nothing herein precludes petitioner from filing a subsequent appeal with the Commissioner pursuant to Education Law §§310 and 2853(3)(e).

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner 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).

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 Department regarding the school.

 

[5] As discussed above, this appeal shall only consider petitioner’s request for space regarding grades 5 through 9, the grades which it is currently authorized to serve.

 

[6] See footnote 5.

 

[7] 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).

 

[8] Although not entirely clear, the petition appears to indicate that petitioner may not now plan to enroll any students in its grade 5.  To the extent petitioner does not enroll students in grade 5 upon its commencement of instruction and thereafter, this would be reflected in the calculation of rental assistance.

 

[9] See footnote 5.