Appeal of SUCCESS ACADEMY CHARTER SCHOOLS – NYC, on behalf of SUCCESS ACADEMY CHARTER SCHOOL – NYC 3, SUCCESS ACADEMY CHARTER SCHOOL – NYC 11, SUCCESS ACADEMY CHARTER SCHOOL – HARLEM 6, and SUCCESS ACADEMY CHARTER SCHOOL – BRONX 3, from action of the New York City Department of Education regarding school utilization.

Decision No. 17,972

(March 23, 2021)

Bonnie Litt and Laura Asserfea, Esqs., attorneys for petitioner

James E. Johnson, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel

ROSA., Commissioner.--Petitioner, Success Academy Charter Schools – NYC (“SACS – NYC”), an existing education corporation with authority to operate Success Academy Charter School – NYC 3 (“SA NYC 3”), Success Academy Charter School – NYC 11 (“SA NYC 11”), Success Academy Charter School – Harlem 6 (“SA Harlem 6”), and Success Academy Charter School – Bronx 3 (“SA Bronx 3”) (collectively “the SA Schools”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer petitioner, on behalf of each school, a co-location site in a public school building or space in a privately-owned or 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 the SA Schools.[1]  According to petitioner, SA NYC 3 will commence instruction in or after the 2022-2023 school year, serving students in kindergarten through grade 2, and plans to add one grade in each subsequent year until it serves students in kindergarten through grade 4 in its initial charter term.  

According to petitioner, SA NYC 11 will commence instruction in or after the 2022-2023 school year, serving students in grades 2 through 4 for the first two years of instruction, and will serve students in kindergarten through grade 4 in the following two years of instruction in its initial charter term.

According to petitioner, on December 23, 2020, SUNY approved a renewal of SA Harlem 6’s charter, with authority to expand to provide instruction to students in kindergarten through grade 8.  Also, on December 23, 2020, SUNY approved a renewal of SA Bronx 3’s charter, with authority to expand to provide instruction to students in kindergarten through grade 12.[2]

SA Harlem 6 opened for instruction in the 2017-2018 school year and, according to petitioner, currently serves students in kindergarten through grade 4.  It will serve students in grade 5 in the 2021-2022 school year and will continue to expand to serve one new grade in each subsequent year until it serves students in kindergarten through grade 8 in its second charter term.

SA Bronx 3 opened for instruction in the 2013-2014 school year and, according to petitioner, currently serves students in kindergarten through grade 8.  It will expand to serve students in grade 9 in the 2021-2022 school year and will continue to expand to serve one new grade in each subsequent year until it serves students in kindergarten through grade 12.

On February 8, 2021, pursuant to Education Law §2853(3)(e), a written request for co-location was submitted for SA NYC 3’s kindergarten through grade 4, SA NYC 11’s kindergarten through grade 4, SA Harlem 6’s grades 5 through 8, and SA Bronx 3’s grades 9 through 12.  By four letters, all dated February 17, 2021, DOE acknowledged the requests, but stated that, for each request, it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it 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 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):  (1) for SA NYC 3’s kindergarten through grade 2 commencing in the 2022-2023 school year and continuing thereafter, grade 3 commencing in the 2023-2024 school year and continuing thereafter, and grade 4 commencing in the 2024-2025 school year and continuing thereafter;[3] (2) for SA NYC 11’s grades 2 through 4 commencing in the 2022-2023 school year and continuing thereafter, and kindergarten through grade 4 commencing in the 2024-2025 school year and continuing thereafter; (3) for SA Harlem 6’s newly-added grade 5 commencing in the 2021-2022 school year and continuing thereafter, grade 6 commencing in the 2022-2023 school year and continuing thereafter; grade 7 commencing in the 2023-2024 school year and continuing thereafter, and grade 8 commencing in the 2024-2025 school year and continuing thereafter; and (4) for SA Bronx 3’s newly-added grade 9 commencing in the 2021-2022 school year and continuing thereafter, grade 10 commencing in the 2022-2023 school year and continuing thereafter, grade 11 commencing in the 2023-2024 school year and continuing thereafter, and grade 12 commencing in the 2024-2025 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 SA Schools, at no cost to petitioner, 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 it a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the requested grades for each of the SA Schools, 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 first commence instruction or 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 the February 8, 2021 co-location request and that it did not offer space to petitioner for the SA Schools.  However, in response to the request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space for the SA Schools 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 SA Schools 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.

With respect to SA NYC 3 and SA NYC 11, the schools that will first commence instruction in or after the 2022-2023 school year, in accordance with Education Law §2853(3)(e)(5), DOE is, therefore, required to pay petitioner rental assistance for each school based on student enrollment in the grades for which the schools have been approved to provide instruction - during their initial charter terms and any subsequent renewal terms, provided that, in any such renewal terms, the charter schools serve the grades encompassed by the charters referenced herein[4] (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]).

With respect to SA NYC 3, the record in this case indicates that SA NYC 3 will commence instruction in or after the 2022-2023 school year, serving students in kindergarten through grade 2, and will add one grade level in each succeeding school year.  In or after the 2024-2025 school year, it will serve students through grade 4 in its initial charter term.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner for the requested grades for the SA NYC 3 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 the requested grades 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).

With respect to SA NYC 11, the record in this case indicates that SA NYC 11 will commence instruction in or after the 2022-2023 school year, serving students in grades 2 through 4 for the first two years of instruction.  It will serve kindergarten through grade 4 in the following two years of instruction in its initial charter term.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner for the requested grades for the SA NYC 11 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 the requested grades 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).

I will now address the expansions of SA Harlem 6 and SA Bronx 3.  With respect to the expansion of SA Harlem 6, the record indicates that it has been approved by SUNY to expand to serve students through grade 8, for which petitioner requested space.  SA Harlem 6 will serve students in grade 5 in the 2021-2022 school year and will continue to expand to serve one new grade in each subsequent year.  In the 2024-2025 school year, it will serve students through grade 8, expansions for which it requires additional space.  Therefore, on the record before me, petitioner has established that SA Harlem 6 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 I am constrained to find that petitioner is entitled either to a co-location or to an offer of private or other publicly-owned space for SA Harlem 6 (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 2021-2022 school year, and in each remaining year of the SA Harlem 6’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 for which SA Harlem 6 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 SA Harlem 6’s newly-added grade(s), commencing in the 2021-2022 school year, and in each remaining year of the SA Harlem 6’s current charter term and any subsequent renewal term, provided that, in any subsequent renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion through grade 8 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

With respect to the expansion of SA Bronx 3, the record indicates that the school has been approved by SUNY to expand to serve students in grades 9 through 12, for which petitioner requested space.  SA Bronx 3 will serve students in grade 9 in the 2021-2022 school year and will continue to expand to serve one new grade in each subsequent year until it serves students through grade 12, expansions for which it requires additional space.  Therefore, on the record before me, petitioner has established that SA Bronx 3 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 I am constrained to find that petitioner is entitled either to a co-location or to an offer of private or other publicly-owned space for SA Bronx 3 (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 2021-2022 school year, and in each remaining year of SA Bronx 3’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 for which SA Bronx 3 has been approved to provide instruction.[6]  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 SA Bronx 3’s newly-added grade(s), commencing in the 2021-2022 school year, and in each remaining year of the SA Bronx 3’s current charter term and any subsequent renewal term, provided that, in any subsequent renewal term, the charter school serves the grades encompassed by the charter referenced herein, an amount attributable to its expansion for grades 9 through 12 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5)

In this instance, petitioner also has not been afforded the opportunity to select alternative privately-owned sites for the SA Schools and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of alternative privately-owned sites 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 respondent from offering petitioner co-location space for the SA Schools in the future.

THE APPEAL IS SUSTAINED.

IT IS ORDERED that, with respect to SA NYC 3 and SA NYC 11, 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 schools that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

IT IS FURTHER ORDERED that, with respect to SA Harlem 6 and SA Bronx 3, DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner for each schools’ newly-added grades for each remaining year of each schools’ current charter term and for 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 each schools’ grade-level expansion that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).

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