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Decision No. 18,004

Appeal of PUBLIC PREP CHARTER SCHOOL ACADEMIES, on behalf of GIRLS PREPARATORY CHARTER SCHOOL OF THE BRONX, GIRLS PREPARATORY CHARTER SCHOOL OF NEW YORK, and BOYS PREPARATORY CHARTER SCHOOL OF NEW YORK[1], from action of the New York City Department of Education regarding school utilization.

Decision No. 18,004

(June 15, 2021)

Law Offices of Eric J. Grannis, attorney for petitioner, Eric J. Grannis, Esq., of counsel

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

ROSA., Commissioner.--Petitioner, Public Prep Charter School Academies, an existing education corporation with authority to operate Girls Preparatory Charter School of the Bronx (“Girls Prep Bronx”), Girls Preparatory Charter School of New York (“Girls Prep New York”), and Boys Preparatory Charter School of New York (“Boys Prep New York”) (Girls Prep Bronx, Girls Prep New York, and Boys Prep New York 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 the school, 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 Girls Prep Bronx, Girls Prep New York, and Boys Prep New York.  Prior to their most recent charter revisions, the schools were authorized to serve students in kindergarten through grade 8.[2],[3]  Petitioner states that, in December 2020, the schools’ charters were revised to authorize the schools to expand to serve students in grades 9 through 12.[4]  According to petitioner, the schools will expand to serve students in grade 9 in the 2022-2023 school year, grade 10 in the 2023-2024 school year, grade 11 in the 2024-2025 school year, and grade 12 in the 2025-2026 school year.

On January 12, 2021, written requests for co-location were submitted for the schools’ grades 9 through 12, pursuant to Education Law § 2853 (3) (e).  By letters dated January 20, 2021, DOE acknowledged the requests for space, 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 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 for the schools’ grades 9 through 12 in accordance with Education Law § 2853 (3) (e) (5).

Respondent admits that it did not offer petitioner facilities for 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 a co-location site in a public school building or space in a privately-owned or other publicly-owned facility for the schools’ grades 9 through 12, 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 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 responded to the January 12, 2021 co-location requests but did not 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 no cost to the schools.  However, in response to the request, DOE was required by Education Law § 2853 (3) (e) (1) to offer petitioner space for the schools in a privately-owned or publicly-owned facility at the expense of the city school district and at no cost to the schools (see Appeal of Elm Community Charter School, 57 Ed Dept Rep, Decision No. 17,375; Appeal of South Bronx Community Charter High School, 55 id., Decision No. 16,908).  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 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 the schools were approved by their charter entity to expand to serve students in grades 9 through 12.  The schools will expand to serve students in grade 9 in the 2022-2023 school year, grade 10 in the 2023-2024 school year, grade 11 in the 2024-2025 school year, and grade 12 in the 2025-2026 school year, expansions for which they require additional space.  Therefore, on the record before me, I find that petitioner has established that the schools require additional space due to an expansion of grade level that was approved by their 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 schools (see Education Law § 2853 [3] [e]).[5]

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law § 2853 (3) (e) (5), pay petitioner for the schools’ newly-added grades 9 through 12, commencing with the 2022-2023 school year, and in each remaining year of the schools’ current 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, rental assistance based on student enrollment in the newly-added grades for which the schools have 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 the schools’ newly-added grades 9 through 12, commencing in the 2022-2023 school year, and in each remaining year of the schools’ current 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, an amount attributable to their expansions to grades 9 through 12 that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).[7]

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 schools, and respondent must afford petitioner an opportunity to do so.  Petitioner must present DOE with evidence of the amount of the actual rental cost of an alternative privately-owned site for the schools attributable to the grade-level expansions 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 respondent comply with the requirements of Education Law § 2853 (3) (e) (5) in accordance with this decision and pay for the schools’ newly-added grades for each remaining year of the current charter terms and for any subsequent renewal terms, provided that, in any such renewal terms, the charter schools serve the grades encompassed by the charters referenced herein, an amount attributable to the grade-level expansions that is calculated in accordance with the formula set forth in Education Law § 2853 (3) (e) (5).

END OF FILE

 

[1] Although the school is referred to as “Boys Preparatory Charter School of the Bronx” in the caption of petitioner’s pleadings, as well as within the petition, pursuant to 8 NYCRR 276.6 of the Commissioner’s regulations, I take administrative notice of records on file with the State Education Department indicating that the name of the school is “Boys Preparatory Charter School of New York.”

 

[2] In previous appeals, decisions were issued ordering DOE to comply with the requirements of Education Law § 2853 (3) (e) (5) with respect to a request for space relating to Boys Prep New York’s kindergarten through grade 5 (see Appeal of Boys Preparatory Charter School of New York, 55 Ed Dept Rep, Decision No. 16,889) and grades 6 through 8 (see Appeal of Boys Preparatory Charter School of New York, 58 id., Decision No. 17,660).

 

[3] Pursuant to 8 NYCRR 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.  The schools’ expansions will be in conjunction with an expansion, also to serve students in grades 9 through 12, of another charter school, Brilla College Preparatory Charter School (“Brilla”).  The approved revisions for the schools and for Brilla would add a “joint high school program” to each charter for Girls Prep Bronx, Girls Prep New York, Boys Prep New York, and Brilla, which will operate at one site, creating what would be known as “Vertex Partnership Academies” to be managed by a newly formed not-for-profit charter management organization, Ventoux Partnership Network, Inc. (see SUNY Memorandum, available at https://www.suny.edu/about/leadership/board-of-trustees/meetings/webcastdocs/IIIB2_Brilla%20and%20Public%20Prep%20Revision%20Resolution.pdf [last accessed June 10, 2021]; Minutes of a Meeting of the Charter Schools Committee of the Board of Trustees of the State University of New York held on Wednesday, December 23, 2020, available at https://www.suny.edu/about/leadership/board-of-trustees/meetings/webcastdocs/Minutes%20Dec%2023,%202020%20Charter%20School%20Committee.pdf [last accessed June 10, 2021]; and SUNY Charter Schools Institute Summary of Findings, available at https://www.suny.edu/about/leadership/board-of-trustees/meetings/webcastdocs/IIIB2%20Brilla%20and%20Public%20Prep%20Vertex%20Summary%20of%20Performance.pdf [last accessed June 10, 2021]).

 

[4] The revision materials were received by the State Education Department on May 21, 2021, to be acted upon by the Board of Regents on or before August 19, 2021 (Education Law § 2852 [5-a])

 

[6] 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).