Appeal of FRANK AMPONSAH, et al.,* from action of the New York City Department of Education and Democracy Prep Public Schools regarding school utilization.

Decision No. 16,549

(September 12, 2013)

Advocates for Justice, Chartered Attorneys and Advocates for Justice, attorneys for petitioners, Arthur Z. Schwartz and Laura B. Barbieri, Esqs., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Martin Bowe and Marilyn Richter, Esqs., of counsel

Fried, Frank, Harris, Shriver & Jacobson LLP, attorneys for respondent Democracy Prep Public Schools, Janice MacAvoy, Adam M. Harris, Maribel Hernandez Rivera and Samuel A. Mathias, Esqs., of counsel

BERLIN, Acting Commissioner.--Petitioners challenge a determination of the New York City Department of Education(“DOE”) relating to the siting of Democracy Prep Harlem Charter School1 (“DPH”, collectively “respondents”) in building M081 (“M081” or “the building”). The appeal must be dismissed.

According to the petition, petitioners are “students, former students, and future students” of Mid-Manhattan Adult Learning Center (“MMALC”), which is sited in the building. MMALC only serves students age 21 and older and offers programs in adult basic education, state high school equivalency diploma preparation and English for speakers of other languages. It also offers career and technical education programs.

Democracy Prep Public Schools (“DPPS”) is a charter management organization that operates charter schools in New York City, including DPH. In August 2010, DPH opened as a middle school in a facility located at 207 West 133rdStreet in New York City. It will begin serving high school students in the 2013-2014 school year. DPH has enrolled 116 students in grade nine for the 2013-2014 school year

1Although the charter school is referred to as Democracy Prep Harlem Charter School by the parties, the corporate documents indicate that the name of the charter school is Democracy Prep Charter School.

and will add one grade each year until it reaches grade 12in 2016-2017. The school’s current site cannot accommodate DPH’s expansion.

On May 9, 2013, DOE issued a notice indicating that it would hold a facilities hearing on May 20, 2013 to consider the siting of DPH at the building. DOE’s Division of Portfolio Planning (“DPP”) provided the notice to the principal of MMALC for distribution and requested that the notice be made available to the community. More than 130 people attended the May 20, 2013 facilities hearing. By letter dated May 22, 2013, a DPP senior super intendent advised MMALC’s principal of the steps involved in the siting of DPH in the building. On May 31, 2013, DOE’s Office for Space Planning (“OSP”) met with DPH representatives and MMALC’s principal and conducted a walk­through of the building. A plan for the allocation of rooms was created and was implemented on July 3, 2013.MMALC’s summer session began on July 9, 2013. This appeal ensued.

Petitioners attempt to bring this appeal on behalf of themselves and “all other similarly situated individuals,” comprising three “subclasses”: former students of MMALC, students currently enrolled in classes at MMALC, and students on MMALC’s waitlist for the 2013-2014 school year. They allege that DOE failed to comply with the requirements of Education Law §2590-h and Chancellor’s regulation A-190and that the siting of DPH in M081 adversely affects MMALC.

Respondents deny petitioners’ allegations and contend that DOE followed the required process. They allege that petitioners lack standing to bring the appeal, that the petition is not verified, that the appeal is untimely and barred by the doctrine of laches, and that petitioners fail to state a claim upon which relief can be granted. Respondent DPH also contends that the appeal must be dismissed because petitioners failed to name a necessary party.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which 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 and 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 will address the procedural issues. An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class (8 NYCRR §275.2; Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No.15,858; Appeal of Strade, et al., 48 id. 73, Decision No.15,797). A petitioner must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class (Appeal of Pollicino, et al., 48 Ed Dept Rep 279, Decision No. 15,858; Appeal of Strade, etal., 48 id. 73, Decision No. 15,797). Other than their general assertions that they appeal on behalf of themselves and “all others similarly situated” and that “petitioners are representatives of a pending class of thousands of student-Petitioners,” petitioners have not set forth the number of prospective members of the proposed class. In addition, while petitioners broadly assert that the members of this proposed class have rights under Education Law§2590-h(2-a)(b) and Chancellor’s regulation A-190 to an Educational Impact Statement (“EIS”), Building Utilization Plan (“BUP”), and Panel on Educational Policy hearing, they fail to demonstrate that all questions of law and fact would be common to all members. Therefore, class status is denied (see Appeal of Ryan, et al., 50 Ed Dept Rep, Decision No. 16,202; Appeal of Reshard, 44 id. 210,Decision No. 15,151).

Section 275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified. Petitioners submitted a reply with a verification signed by an individual who was not named as a petitioner in the petition. In their reply, petitioners assert that such individual has been joined as a petitioner. However, §275.1 of the Commissioner’s regulations provides that after an appeal is commenced, “no party shall be joined ... except by leave or direction of the Commissioner of Education.” Petitioners did not seek permission to add another petitioner to the appeal and

their unilateral attempt to do so is improper (see Appeal of Dupras, 47 Ed Dept Rep 471, Decision No. 15,757). As petitioners’ reply was not properly verified, I have not considered it (see Appeal of D.H., 47 Ed Dept Rep 77,Decision No. 15,631).

Respondents assert that petitioners have not demonstrated that they have standing to maintain this appeal. An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that heor she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson,47 id. 261, Decision No. 15,689). Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Waechter, 48 Ed Dept Rep 261, Decision No. 15,853; Appeal of Erickson, 47 id. 261, Decision No. 15,689).

Petitioners allege that they are “students, former students, and future students” of MMALC. However, former and future student petitioners are not taking classes at MMALC and do not allege how they will be affected by the siting of DPH in the building. Accordingly, former and future student petitioners lack standing and the appeal must be dismissed as to them (see e.g. Appeal of T.T., etal., 51 Ed Dept Rep, Decision No. 16,361; Appeal of Collier, et al., 51 id., Decision No. 16,289).

However, I decline to dismiss the appeal for lack of standing as to student petitioners. Petitioners allege that they are students at MMALC. The record indicates that a summer session at MMALC began on July 9, 2013, after the physical implementation of the plan had been completed and prior to commencement of this appeal. As an affirmative defense, respondents assert only that “[n]o petitioners with standing have been identified” and DPH acknowledges that some petitioners may indeed have standing. In the absence of proof in the record that none of the petitioners are students, petitioners’ statements in the petition that they are students are sufficient to establish standing (see Appeal of Morris, et al., 37 Ed Dept Rep 590, Decision No.13,936).

Respondents also allege that the petition lacks the required verification. Section 275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified. When a petition is not properly verified, the appeal must be dismissed (Appeal of D.P., 46Ed Dept Rep 516, Decision No. 15,580; Appeal of C.S., 46id. 260, Decision 15,501). I note that the petition filed 4

with my Office of Counsel contains a verification signed by one of the named petitioners. The appeal, therefore, will not be dismissed on that ground.

As to respondents’ assertion that the appeal is untimely, an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR§275.16; Appeal of Lippolt, 48 Ed Dept Rep 457, Decision No. 15,914; Appeal of Williams, 48 id. 343, Decision No.15,879). Respondents contend that the appeal is untimely because it was not commenced within 30 days of DOE’s decision to site DPH in the building, which they assert was made and conveyed to the principal of MMALC on May 22,2013. They argue that even if July 9, 2013, the date on which MMALC’s summer session began, were the operative date, the appeal is untimely because it was not commenced within 30 days from that date. DOE offers no evidence to indicate when it made its determination, when or how it communicated such decision to anyone, or that any of thes tudent petitioners knew of its decision to site DPH in the building. While the record contains correspondence between DOE staff and MMALC’s principal dated May 9 and May 22,2013, I note that such correspondence did not clearly state that DOE had made a final determination with regard to the siting of DPH at M081. Accordingly, under these circumstances, I decline to dismiss the appeal as untimely.

However, the appeal must be dismissed because petitioners failed to name a necessary party. Petitioners named only the charter management organization as a respondent in the caption of this appeal and failed to properly name the charter school.

A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Murray, 48 Ed Dept Rep 517, Decision No. 15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917; Appeal of Williams, 48 id. 343, Decision No. 15,879). Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Murray, 48 Ed Dept Rep 517, Decision No.15,934; Appeal of Miller, 48 id. 465, Decision No. 15,917;Appeal of Williams, 48 id. 343, Decision No. 15,879).

Here, DPH is not clearly named in the caption as a respondent. The caption names the charter management

organization, Democracy Prep Public Schools, generally, but fails to identify DPH or any specific school among those within the DPPS network. I note that in his affidavit, the deputy chief of staff of DPPS stated that DPPS operates four schools over eight campuses in central and east Harlem. As the charter school was not clearly named in the caption as a respondent, the appeal must be dismissed for failure to join a necessary party (see e.g. Appeal of Wright, et al., 52 Ed Dept Rep, Decision No. 16,457).

Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits. Respondents contend that the petition fails to state a claim upon which relief can be granted because MMALC is a program, not a school, and that the requirements applicable to co­locations in a school building are not applicable under the circumstances presented in this case.

Pursuant to Education Law §2853(3)(a), a charter school may be located in part of an existing public school building, in space provided on a private work site, in a public building or in any other suitable location. In addition, pursuant to Education Law §2853(3)(a-3)(1),before a charter school may be located in an existing public school building in New York City, the Chancellor of the City School District of the City of New York (“Chancellor”) shall provide widespread notice of certain information including to the community superintendent, community district education council and the school based management team. Further, pursuant to Education Law §2853(3)(a-3), after a public school building has been selected for a proposed co-location of a charter school, DOE is required to develop a BUP “for each school that has been definitively identified for a location or co-location” which must be included within the EIS. The requirements for an EIS are set forth in Education Law §2590-h(2-a).

Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter345 of the Laws of 2009). The sponsor’s memorandum in support of the 2009 amendments describes the general purpose of the legislation as “providing for greater parental participation and input, transparency, and accountability in relation to the management and operation of the New York City school district” (emphasis added).Among other things, Education Law §2590-h(2-a) requires the Chancellor to prepare an EIS for any proposed school closing or “significant change in school utilization ...for any public school located within” the City School District (emphasis added).

An EIS is required to include:

i. the current and projected pupil enrollment of the affected school, the prospective need for such school building, the ramifications of such school closing or significant change in school utilization upon the community, initial costs and savings resulting from such school closing or significant change in school utilization, the potential disposability of any closed school;

ii. the impacts of the proposed school closing or significant change in school utilization to any affected students;

iii. an outline of any proposed or potential use of the school building for other educational programs or administrative services;

iv. the effect of such school closing or significant change in school utilization on personnel needs, the costs of instruction, administration, transportation, and other support services;

v. the type, age, and physical condition of such school building, maintenance, and energy costs, recent or planned improvements to such school building, and such building's special features;

vi. the ability of other schools in the affected community district to accommodate pupils following the school closure or significant change in school utilization; and

vii. information regarding such school's academic performance including whether such school has been identified as a school under registration review or has been identified as a school requiring academic progress, a school in need of improvement, or a school in corrective action or restructuring status. Education Law §2590-h(2-a)(b).

The BUP must include:

A. the actual allocation and sharing of classroom and administrative space 7

between the charter and non-charter schools;

B. a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, including but not limited to, cafeterias, libraries, gymnasiums and recreational spaces, including playgrounds which assures equitable access to such facilities in a similar manner and at reasonable times to non-charter school students as provided to charter school students;

C. justification of the feasibility of the proposed allocations and schedules set forth in clauses (A) and (B) of this subparagraph and how such proposed allocations and shared usage would result in an equitable and comparable use of such public school building;

D. building safety and security;

E. communication strategies to be used by the co-located schools; and

F. collaborative decision-making strategies to be used by the co-located schools including the establishment of a shared space committee...(Education Law §2853 [3][a-3][2][A-F]).

Respondents claim that MMALC is not a public school as contemplated by the provisions of Education Law applicable to co-locations. I agree. Education Law §4604 provides that a board of education of each school district may establish and maintain day and evening schools for adults, the controlling purpose of which is to provide a general program of continuing education for adults. The record indicates that respondent DOE’s Office of Adult and Continuing Education operates several adult learning centers throughout the city, including MMALC, offering classes for adults 21 and over.

As respondents correctly assert, unlike public elementary, middle and secondary schools, MMALC’s program serves adults over the age of 21 and is not required to be registered with the Board of Regents pursuant to 8 NYCRR§100.2. Rather, adult education programs are approved by the Commissioner in accordance with 8 NYCRR §157.1.

Even if MMALC were a public school as contemplated by the applicable statutes, I find no indication in the

statutory language or the legislative history that the

processes and procedures set forth in Education Law §§2590­

h(2-a) and 2853(a-3) were intended to apply to the co­

location of a charter school in a building currently

housing only an adult learning center. As noted above,

before a charter school may be located in an existing

public school building in New York City, the Chancellor

must provide notice to the community superintendent,

community district education council and the school-based

management team, all of which are positions or deliberative

bodies within the public school system.

Moreover, §2590-h(2-a) specifically requires that an

EIS be prepared “regarding any proposed school closing or

significant change in school utilization ... for any public

school located within the city school district.” In the

case of the siting of DPH with MMALC, there is no

significant change in school utilization for any public

school.

In addition, much of the information required to be

included in an EIS and BUP is relevant only to elementary,

middle and secondary schools. For example, the EIS

requires information regarding a school’s academic

performance including whether such school has been

identified as a school under registration review, a school

requiring academic progress, a school in need of

improvement, or a school in corrective action or

restructuring status (Education Law §2590-h[2-a][b][vii]).

Such accountability categories are applicable to public

schools, not to adult learning centers such as MMALC. The

EIS also requires information on the “ability of other

schools in the affected community district to accommodate

pupils following the school closure or significant change

in school utilization,” which is not applicable in the

context of the co-location of a charter school with an

adult learning center (Education Law §2590-h[2-a][b][vi]).

Further, the BUP requires a proposal for the collaborative

use of shared resources and spaces typically part of

elementary, middle and secondary schools such as gymnasiums

and recreational spaces, including playgrounds (Education

Law §2853[a-3][2][B]).

As described above, the statutory language and legislative history indicate that the purpose of the requirements related to co-locations is to ensure input and notice to the parents of public school children – rather than the adult participants in adult learning center programs. Accordingly, I find that the co-location process does not apply to the situation presented in this appeal. 9

In light of this disposition, I need not address the parties’ remaining contentions.

I note that, in view of the above, any future challenge to the siting of a charter school in a building that houses only an adult learning center, as in this case, would not be considered a proceeding under Education Law§2853(3)(a-5) and would not be afforded the expedited process.

THE APPEAL IS DISMISSED.

* The following individuals are also listed as petitioners: RAMATOU AMIDOU, AMON JEANNE AWADJNO, EMMANUELANORJUSTE, MIRNA ARROYO, SHOPNA AKTAR, SERGIO AZCONA,MARIAMA BADJI, REGINALD BALLARD, LEONNA BALLARD, SORGBINTABAH, JEAN BALLAZAR, OLGA BALTRAN, OSCAR BARBOSA, YASMINBELTRAN, ZARTNA BEGUM, ANGEL BENITEZ, JAMES BENNETT,ARAMINTA BLANC, JARICC BLANDON, VANESSA BROWN, BRANDI BRYANT, CRISELDA BUSTMANTE, MALIKA BUTLER, ALTHEA BYFIELD,CRISTIAN CALLE, RONDALD CAROLINA, USSBEY CARRASQUILLO,LESSOR CASSY, MARGARETTE CASSY, MEYBOL CASTILLO, COURTNEYCHAVIS, AMERICA CHINNERY, CHRISTOPHER CLARK, SANDRA CLARK,DENISE COLEMAN DIXON, JENNIFER COLON, MILAGROS CORREA,YHANA CROOM, CYNTRA CUNLIFFE, JENNY D’ANDREA, THOMAS DANIELS, RICHARD DARBY, YVETTE DEASE, ADRIENNE DENNIS,SAFIATOU DIALLO, NORMA DIAZ, MOBOLAJI DIRAN, MARIA DOMINGUEZ, CATHERINE DOUMBIA, ROSELYN DURANT, SABRINA ELLIS, MONA ELASHIAF, RONALD ESPINAL, CASSY EVE, FATIMATAROLL, ERIC FERRAZ, MADELINE FIGUEROA, OBA-SAKKEM FINCH, JOYFISHER-REID, JAVIES GARCIA, WALTER GARCIA, CLAUDETTE GARNETT, FATOUMATA GASSAMA, DURAN GAYLE, VANESSA GEORGE,ANTHONY GIFFORD,MASSIEL GILBERT, WALTER GIRALDO, CARMEN GONZALEZ, DIOSDADA GONZALEZ, KEISHA GRADY, EDWARD GRAY,RAMSEY GREEN, NURIS GRULLUM, EL HADJI, CATHERINE HANKERSON,SHAKE HAQUE, ALZADA HARRIS, WILLIAM HARRIS, JUNIOR HECTOR,KARIN HODGES, ASHAKII HUTCHINSON, MICHKO HOSHINO, ALISAIRBY, CALVIN JENKINS, JOSE JIMENEZ, DEMANCE JOLIVETTE,CRAIG JONES, YANIZA KAMAGATE, ADAMA KANE, BOUSSO KEBE,CHRISTOPHER KING, KIYANNA KING, AISSATA KONE, MAHAMADOUKONE, KOYUMI IKE, ALBERT LEE, IJNANAYA LEWIS, NICOLE LEWIS,ANDREW MARINEZ, RAFAEL MAYORQUIN, EUVAVNE MCCALLOP,SHAYANDA MCCORMICK, KAESEAN MEACHAM-LATHAM, SHANGHEL MEIGHAN, DANIELLE MILLINER, KAWLAH MOHABIR, DONNA MONTAGUE,CHRISTINE MONTALVO, ALCIDES MONTESDEOCH, JOEL MORALES, MARKMOSKOWITZ, BRUNDON OCASPO, MARY OWASUAA, HEATHER PAGAN,AVRIL PARKER, DANA PARKS, TIFFANY PATTERSON, GINA PENTA­10

CAMPODONICA, JOSE PENAFIEL, BETZAIDA PEREZ, LIZA PIZARRO,CHRISTOPHER POWELL, BEATRIZ PRADO, PEDRO QUINONES, MARIARATALOWSKI, AINSWORTH RATTIGAN, ROBERT RAY, REGNETT CASSY,SONIA RIGBY, MATHEW RIVERA, NATALIA RIVERA, LORRAINE ROBINSON, DIANA ROBLES, ADAM RODRIGUEZ, ELIZABETH RODRIGUEZ, KAYSHA ROMERO, ADLEE ROSA, NAIROBI ROSARIO,SHERRIFFA ROWE, MAME SALL, NATALIA SAMULS, JEAN SANCHEZ, FLOYD SANDOVAL, ALANA SANKNE, LISA SANTANA, JAHMAL SAUVE,BERNADETTE SEDASSEY, SABA SHAIKH, MAUVETTE SINCLAIR,SARABJEAN SINGH, DARLENE SMALLS, KIMESHA SMITH, LINDA SMITH, RAYSHAWN SMITH, SHANDELL SMITH, DERRICK SNYDER,DOROTHY JOHNSON, MITZUKO SOTO, ADAMA SOW, JOANNE SPEARS, SHEENA STEINBERGIN, GERTRUDE STRIBLING, ALMAVIE SYMISTER,PRECIOUS TEASLEY, ROMMIE TELFAIR, GREG THOMAS, SABBIR TIPU,BAKARY TRAORE, MINH TRUONG, KARSAN TURIN, HELEN VANIBLE,SANDRA VELILLA, SILVIA VILLA RUIZ, DEBRA WADE,CALVIN WARD, SHARON WATSON, SHYHEEN WIGGINS, AMANDA WILLIAMS, ELLAMAE WILLIAMS, KENNETH WILLIAMS, MERLENE WILLIAMS, PHILLIP WILLIAMS, RHONDA WILLIAMS, WENDY WITTER,SUSAN WONG, UBOBJ WOB, BOBBIE WRIGHT, EMILE ZABGONRE, ANDQIAO ZHUANG ZHANG, individually and as students of Mid-Manhattan Adult Learning Center (“MMALC”).END OF FILE