Appeal of BORIS LITICHEVSKY, on behalf of his son STEVEN, and JAMES PAOLICELLI, on behalf of his son VINCENT, et al.,[*]from action of the New York City Department of Education and the Coney Island Preparatory Public Charter School regarding school utilization.

Decision No. 16,254

(June 28, 2011)

Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz, Esq., of counsel

Honorable William Colton, Esq., attorney for petitioners

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Chlarens Orsland and Emily Sweet, Esqs., of counsel

Law Offices of Eric J. Grannis, attorneys for respondent Coney Island Preparatory Public Charter School, Eric J. Grannis, Esq., of counsel

KING, Jr., Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the Coney Island Preparatory Public Charter School (“CIPPCS”) (collectively “respondents”) in a public school building.  The appeal must be dismissed.

Petitioners are parents of children who attend I.S. 303 Herbert S. Eisenberg (“I.S. 303”), Rachel Carson High School for Coastal Studies (“Rachel Carson H.S.”) and an inclusion program[1] in a District 75 school (“P771K”).  All schools are currently situated in building K303 in Community School District 21 in Brooklyn (“building K303”).  I.S. 303 serves students in grades six through eight. Rachel Carson H.S. serves students in grades nine through twelve.  P771K is a public “District 75 school” that serves students with disabilities, including an inclusion program in grades six through eight at building K303.  As part of the inclusion program, P771K students are enrolled in I.S. 303 middle school general education classes and receive Special Education Teacher Support Services (“SETSS”).

On March 4, 2011, DOE issued an Educational Impact Statement (“EIS”) and Building Usage Plan (“BUP”) (collectively the “March 4 EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3).  Among other things, the March 4 EIS proposed that in the 2011-2012 and 2012-2013 school years, I.S. 303, Rachel Carson H.S., P771K and CIPPCS would be co-located in building K303.  On March 19, 2011, DOE issued an amended EIS and BUP (collectively the “March 19 EIS”).  In its verified answer, DOE explains that the March 19 EIS corrected certain typographical errors, clarified why CIPPCS could not remain in its current location for the 2011-2012 school year, clarified the potential impact on I.S. 303’s instructional programs and included a revised BUP to reflect updated information about the shared space in building K303.  On April 2, 2011, DOE issued a Second Amended EIS and BUP (collectively the “April 2 EIS”).  In its verified answer, DOE explains that the April 2 EIS corrected certain typographical errors and included an amended revised BUP which provided additional information about the shared space schedule.  On April 4, 2011 and April 6, 2011, two public hearings were held regarding the April 2 EIS, and on April 28, 2011, the Panel for Educational Policy (“PEP”) approved the proposal.  This appeal ensued.

Petitioners contend that DOE failed to comply with the requirements of Education Law §2590-h(2-a) in a number of respects, including that the EIS failed to assess the impact of the proposal on students with disabilities and English language learners (“ELLs”).  Petitioners also claim that DOE failed to comply with Education Law §2853(3)(a-3) in a number of respects, including that it failed to create a BUP that adequately addresses the allocation of shared space, such as the schoolyard and cafeteria.  Petitioners further claim that DOE failed to timely file its April 2 EIS and that the co-location is unsafe because the addition of students to the building would cause overcrowding and excessive and potentially harmful levels of carbon dioxide.

Respondents deny petitioners’ allegations and contend that DOE substantially complied with all applicable laws and regulations.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and provides for an expedited process for appeals to the Commissioner of Education regarding the location or co-location of a charter school within a public school building in the City School District of the City of New York.  Specifically, the expedited process is available for appeals involving:

the determination to locate or co-locate a charter school within a public school building[,] the implementation of and compliance with the building usage plan developed pursuant to [Education Law §2853(3)(a-3)] ... [and/or] the revision of a building usage plan ... on the grounds that such revision fails to meet the standards set forth in [Education Law §2853(3)(a-3)(2)(B)] (Education Law §2853[3][a-5]).

Initially, I must address several procedural issues.  A reply in a charter school co-location appeal must be served within two business days of service of the answer (8 NYCRR §276.11[e][1]).  The answers in this appeal were served on June 13, 2011 by overnight mail in accordance with Commissioner’s regulations (8 NYCRR §276.11[e][2]).  The reply, with supporting affidavits and exhibits, was not served until June 16, 2011, outside the required time frame.  In a charter school co-location appeal, the Commissioner, in his sole discretion, may excuse the failure to timely serve a reply “for good cause beyond the control of the requesting party” (8 NYCRR §276.11[e][1]).  Petitioners’ counsel indicates that the delay was caused by the fact that they received the answer midday on June 14, 2011, and needed two full days to properly respond.  I find the excuse offered by petitioners to be insufficient and decline to excuse the delay.  Accordingly, the reply is untimely and has not been considered.

In addition, the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR §§275.3 and 275.14).  A reply is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition (Appeal of Caswell, 48 Ed Dept Rep 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908; Appeal of Baez, 48 id. 418, Decision No. 15,901).  The affidavit of Elisa Muyl and exhibits attached thereto contain information that should have been set forth in the petition and, for that additional reason, I decline to accept it.  Finally, I cannot consider the affidavit of Ed Olmsted, also submitted with the reply, for the additional reason that it is not signed or notarized.

Petitioners contend that the April 2 EIS was filed only five months and 27 days before the first day of CIPPCS’s school year and, thus, failed to comply with the law.  I disagree.  Education Law §2590-h(2-a)(c) requires that an EIS be filed “at least six months in advance of the first day of school in the succeeding school year.” However, Education Law §2590-h(2-a)(d-1) authorizes the Chancellor to substantially revise a proposed school closing or significant change in school utilization so long as a revised EIS is published and filed in the same “manner” as an initial EIS.  Time and manner are generally two different things, and treating them otherwise here would only discourage the making of revisions in response to public comments, which would be contrary to the statute’s intent (Appeal of Battis, 50 Ed Dept Rep ___, Decision No. 16,115).  Accordingly, I find that the April 2 EIS was not subject to the same six-month requirement as the initial EIS.

On the merits, petitioners allege that the April 2 EIS is deficient in several respects.  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 Aversa, 48 Ed Dept Rep 523, Decision No. 15,936; Appeal of Hansen, 48 id. 354, Decision No. 15,884; Appeal of P.M., 48 id. 348, Decision No. 15,882).

Petitioners contend that the proposed co-location would detrimentally impact the students of I.S. 303 and P771K because it would require I.S. 303 to abandon its general education programming model for its sixth and seventh grades.  To the contrary, the EIS specifically states that “[t]his proposal would not require I.S. 303 to change the way in which it currently serves its middle school students.”  On the record before me, therefore, I find that petitioners have not met their burden on this issue.

Petitioners further allege that the EIS is deficient because it fails to disclose the impact of the proposed co-location on students with disabilities and ELLs.  Specifically, petitioners contend that, while the EIS indicates that existing self-contained classes, collaborative team teaching classes and SETTS services would continue to be provided and students would receive mandated services in accordance with their Individualized Education Plans (“IEPs”), it does not specify how this will be done.  Petitioners also assert that the EIS fails to provide for full size collaborative team teaching or self contained classrooms.

Education Law §2950-h(2-a)(b)(ii) requires that an EIS include “the impacts of the proposed school closing or significant change in school utilization to any affected students.”  The law does not specify the information that an EIS should include to portray the impact on students and DOE is afforded a “considerable measure of discretion in this regard” (Mulgrew v. Bd. of Educ. of the City School Dist. of the City of New York, 75 AD3d 412 [1st Dept 2010]).

The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, 50 Ed Dept Rep ___, Decision No. 16,115).  The April 2 EIS discusses the capacity of building K303 and discloses that I.S. 303 would have to give up space (13 full-size classrooms) under the proposal.  It further provides that:

school leaders are empowered to make decisions about how to utilize the space allocated to the school.  Each principal, therefore, must make decisions about how and where students will be served within the space allocated to the school.  The DOE, however, will provide support to the schools to ensure that the schools use the space efficiently in order to maximize capacity to support student needs and maintain appropriate delivery of special education and related services to students.

The April 2 EIS also clearly states that the proposed co-location would have no impact on the types of classes and mandated services afforded to students with disabilities and that a full size or half size classroom to accommodate each self-contained special education section served by the school will be allocated.  Petitioners have offered no proof to contradict such statements in the EIS or to otherwise indicate that students with disabilities would be adversely impacted by the use of space as set forth in the EIS.  Finally, to the extent that petitioners attempt to challenge DOE’s space allocation on the basis of an alleged provision in the New York City Building Code, DOE denies the existence of such code provision and petitioners failed to include a citation or copy of the code provision.  Based on the record before me, I find that DOE provided sufficient information to inform public comment. 

Similarly, petitioners argue that the EIS fails to include any information regarding the impact of the proposed co-location on ELLs.  To the contrary, the EIS specifically states that current and future ELLs would continue to receive mandated services.  Petitioners have not offered any proof to contradict that statement in the EIS or to otherwise indicate that ELLs would be adversely impacted by the use of space as set forth in the EIS.  Based on the record before me, I find that DOE provided sufficient information to inform public comment.

Petitioners also assert that the EIS fails to accurately identify the impact of the proposed changes in the usage of the gymnasiums (“gym”) on students.  Petitioners claim that I.S. 303 currently separates male and female gym areas because they change attire for the gym period.  Petitioners complain that under the co-location proposal, I.S. 303 would be permitted to use only one gym, requiring male and female students to change in the same gym.  Respondents disagree, stating that the building has both a girl’s and boy’s locker room, each accessible by both gyms and, therefore, students of the opposite sex would not be forced to change in the same gym.  I find that the information in the April 2 EIS (particularized in the BUP), indicating that I.S. 303 would have access to one gym under the co-location proposal, is sufficient to inform public comment on the proposal.

Petitioners next raise several claims with respect to the BUP.  Education Law §2853(3)(a-3)(2) requires that a BUP contain, at a minimum, the following information:

Decisions on the allocation of space in a school building containing multiple schools are complex, with needs changing over time, as programs and enrollments change.  Such decisions necessarily involve pedagogical judgments and cannot reasonably be expected to be made with scientific precision.  For those reasons, such decisions, like decisions on school closings, must be left to the sound discretion of local school officials, in this case DOE.  Accordingly, I will not substitute my judgment for that of DOE in determining whether the allocation and shared use of space in a building usage plan result in equitable and comparable use of the building.  Absent proof that DOE’s determination lacked a rational basis, it will not be set aside (cf. Appeals of Luciano and Hatton, 50 Ed Dept Rep ___, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).

Although not clearly articulated, petitioners appear to challenge the BUP on the ground that DOE did not separately allocate P771K the equivalent of 3.5 separate full size classrooms (the baseline for each school under DOE’s Instructional Footprint [“Footprint”]) for student support services, resource rooms and administrative space but, instead, included P771K students as part of I.S. 303 for that purpose.  Petitioners assert that the BUP improperly fails to set forth a justification for such proposed space allotment.

Petitioners’ claim lacks merit for several reasons.  First, the record indicates that, in addition to having access to the classrooms allotted to I.S. 303, students in P771K will continue to have a separate allocation of 1.5 full size classrooms for the purposes listed above.  This allocation remains unchanged from prior years.  To the extent that petitioners complain that P771K should receive a baseline allotment of 3.5 classrooms in the same manner as I.S. 303 and challenge DOE’s alleged failure to include in the BUP a justification for not doing so, such claims do not constitute a viable challenge to the BUP, in that it is not a challenge to the equity of the shared space between the charter school and the non-charter schools, which is what is required by §2853(3)(a-3)(2).

In any event, as noted above, P771K is an inclusion program in which students with disabilities receive special education services in a general education classroom.  DOE included P771K students as part of I.S. 303, with access to I.S. 303’s classrooms, because all of the students will be educated together in the I.S. 303 general education classrooms.  A determination by DOE to consider the 16 – 22 inclusion students in P771K as part of the same school with I.S. 303 for this purpose is within DOE’s authority to maintain and operate its educational programs (Education Law §§2554[9], [13]; 2590-h[1][c] and [17]) and petitioners have not established that DOE abused its discretion in the exercise of such authority.

Moreover, in addition to having access to I.S. 303’s allotted classroom space, P771K previously has and will continue to receive its own allotment of 1.5 full size classrooms that may be used for student support services, resource room and administrative space.  The record indicates that the total space allocated to P771K and I.S. 303 is six full-size and one half-size classrooms.  Petitioners have not established that, as compared to the charter school, such allocation is inequitable.

Petitioners further submit that the BUP is deficient because it fails to provide any explanation as to how the proposed shared usage plan will result in equitable shared use for existing students with disabilities, ELL students, and District 75 students.  With respect to students with disabilities and ELLs, the information required under the statute for a BUP requires information pertaining to charter and non-charter school students in general and, although the space needs of these groups should be considered in determining the classroom and shared space usage, the BUP does not specifically require a detailed analysis regarding each student subgroup within those schools.  As set forth above, petitioners have not established that DOE’s treatment of P771K students is inequitable as compared to the charter school, nor have they established that students with disabilities or ELL students in the various DOE schools would be denied equitable access as compared to charter school students.

Petitioners contend that the BUP does not sufficiently justify how the shared usage plan would result in an equitable and comparable use of classrooms as required by Education Law §2853(3)(a-3)(2)(C).  Petitioners contend that, based on the allocation of classrooms, I.S. 303 will have five more students per class than Rachel Carson H.S. and six more students per class than CIPPCS.  Respondents disagree and DOE specifically contends that the BUP does not stipulate class size for any of the schools. DOE further states that petitioners’ calculations are incorrect. 

According to the BUP, the justification of feasibility and equitability of classroom space is based on DOE’s Footprint analysis.  The Footprint sets forth the baseline number of rooms that should be allocated to a school based on the grade levels served by the school and number of classes per grade.  For existing schools, the Footprint is applied to the current number of classes and the projected class size in a school and is confirmed by a walk through of the building by DOE staff.  For grades six through twelve, the Footprint assumes that students move from class to class and that classrooms should be programmed at maximum efficiency.  The Footprint allocates one full-size classroom for each general education or Collaborative Team Teaching section and a full-size or half-size classroom to accommodate each self-contained special education section served by the school.  The BUP further states that, while the Footprint sets forth a baseline space allocation, school leaders are empowered to make decisions about how to utilize the space allocated to the school.  Moreover, according to the BUP, the DOE will provide support to the schools to ensure that they use the space efficiently in order to maximize capacity to support student needs and maintain appropriate delivery of special education and related services to students. 

Petitioners bear the burden of proof and, based on the record before me, I find that the BUP satisfies the requirement of Education Law §2853(3)(a-3)(2)(C).  The BUP does not on its face dictate class size and discretion is provided to school leaders on how to utilize the space provided.  Moreover, I do not interpret the statute’s equitable and comparable requirement to mean that class sizes must be exactly the same.

Petitioners also challenge DOE’s allocation of cafeteria use as inequitable and claim that the BUP fails to set forth a justification regarding the allocation of that space.  Specifically, petitioners claim that I.S. 303 has a larger student population and should have received a proportionate amount of time in the cafeteria.  First, I find that a determination of equitable and comparable use does not necessarily require exact proportionality.  The BUP states that cafeteria time was allocated to each school based on projected enrollment, capacity of the cafeteria, current use and grade levels served.  In addition, DOE notes that the proposed schedule for I.S. 303 and Rachel Carson H.S. is identical to their current cafeteria use. There was no reduction in those schools’ access to the cafeteria as a result of the proposed co-location.  CIPPCS merely was added to the beginning of the time block and overlaps part time with I.S. 303.  Notably, though not proportionate, I.S. 303 is scheduled for more total time in the cafeteria than CIPPCS.  The BUP also states that each school will be able to accommodate all of its students in the cafeteria within the proposed allocation of time.  Petitioners submit no evidence to the contrary.  Petitioners emphasize that most of I.S. 303’s cafeteria time overlaps the high school and charter school time.  However, I.S. 303 currently overlaps with Rachel Carson H.S. and this in and of itself does not render the cafeteria use inequitable.  Accordingly, I find that the BUP sufficiently addressed the requirements contained in Education Law §2853(3)(a-3)(2)(B) and (C) with respect to the cafeteria.

Petitioners also claim that the school yard schedule is inequitable because I.S. 303 has been allotted the same amount of time as CIPPCS, despite having approximately three times the number of students.  Respondents contend that there was a typographical error on the schedule for CIPPCS and that each school’s time in the school yard should have matched its time in the cafeteria.  Pursuant to the corrected schedule, I.S. 303 will receive more school yard time than CIPPCS. The justification provided for the adopted schedule is that DOE wanted to provide the schools with the option of offering students a recess during their lunch period.  Petitioners have provided no information regarding the school yard capacity which would lead to a conclusion that access to the school yard by all schools under the proposed schedule is inequitable.  Accordingly, I find the statutory requirements have been satisfied. 

Finally, petitioners contend that the proposed co-location is unsafe for students.  Specifically, they submit a report which concludes that the additional students would cause overcrowding and excessive and potentially harmful levels of carbon dioxide.  The report also indicates that a test was done in the building which indicated potentially harmful levels of carbon dioxide between the gym and cafeteria area. 

With respect to the contention that the co-location will result in overcrowding, according to the EIS, in 2012-2013, the last year of the proposed co-location, building K303 would have an estimated building utilization rate of 89 percent, which is less than full capacity despite the addition of the CIPPCS students.  Respondents also indicate that based on the proposed schedule of shared spaces in the BUP, the schools enter and leave these spaces at different times during the day.  They also assert that all 700 students will never be in the hallway simultaneously, despite petitioners’ claims.  With respect to the claim regarding carbon dioxide, respondent DOE disagrees and indicates that the building’s ventilation system was inspected in June 2011 and found to be in proper working order, the filter was replaced and an air test indicated that the carbon dioxide levels were within safe and normal range.  Accordingly, based on the record before me, I find that petitioners failed to meet their burden on these issues.

As a final matter, petitioners claim that DOE has contradictory methods of assessing physical space and points to a 2008 decision in which DOE allegedly denied I.S. 303’s application to expand to serve grades nine through twelve based on lack of space in building K303.  DOE explains that when a middle school applies to expand to serve high school grades, there must be sufficient space in the building to accommodate each eighth grade student should the student wish to continue into the high school grades.  DOE concluded that there was insufficient space at that time to accommodate all of I.S. 303’s eighth graders.  Given the conflicting evidence on this issue, I find petitioners have failed to meet their burden and I find DOE’s prior decision to be irrelevant to its co-location decision in the present appeal.

As described above, I cannot conclude from the record before me that DOE’s decision was arbitrary, capricious or lacked a rational basis and find that petitioners have not met their burden of proof.

I have considered petitioners’ remaining contentions and find that they have no merit.

THE APPEAL IS DISMISSED.

END OF FILE.