Appeal of HARLEM CHILDREN’S ZONE PROMISE ACADEMY CHARTER SCHOOL[1] from action of the New York City Department of Education regarding school utilization.

Decision No. 16,909

(May 24, 2016)

Sherman & Sterling LLP, attorneys for petitioner, John Gueli and Juliana S. Clay, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, James M. Dervin, Esq., of counsel

ELIA, Commissioner.--Petitioner, Harlem Children’s Zone Promise Academy Charter School (“the school”), challenges the New York City Department of Education’s (“respondent” or “DOE”) failure to offer it 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 dismissed.

Petitioner is a charter school authorized by the Chancellor of the City School District of the City of New York to serve students in kindergarten through grade 12 and is currently located in Community School District (“CSD”) 5.[2]  Petitioner’s initial charter was issued in February 2004 for a five-year term.  It was extended in 2009 and again in May 2014 for a term up through and including June 30, 2019.

When it first opened for instruction in 2004, petitioner served students in kindergarten and grade six.  In the 2005-2006 school year, petitioner added grades one and seven, and in the 2006-2007 school year, it added grades two and eight.

In 2007 and 2009, petitioner revised its charter to modify its enrollment and grade configuration by, among other things, suspending enrollment for grades six and nine for one year and discontinuing recruitment of new classes of middle school students, making kindergarten its primary intake grade.  Because of the revisions to its enrollment and grade configuration, petitioner first served grade 12 in the 2011-2012 school year and again served grade 12 in the 2012-2013 school year, but did not serve grade 12 in the 2013-2014 or 2014-2015 school years.  Petitioner resumed serving grade 12 in the 2015-2016 school year.

By letter to DOE dated April 29, 2015, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its grade 12 to commence in the 2015-2016 school year.  By letter dated September 29, 2015,[3] DOE acknowledged petitioner’s April 29, 2015 request for co-located space, but stated that “[w]e will not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to respond to its April 29, 2015 request for space within the statutorily prescribed five-month period, thereby constructively denying its request.  Petitioner further asserts that DOE has not offered it the use of any public or private facilities and that it has not been offered the opportunity to select an alternative privately-owned site.  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

Respondent contends that the provisions of Education Law §2853(3)(e) do not apply.  Respondent argues that petitioner is not eligible for co-location space because it already served “its full K-12 grade span” and it failed to show that it has insufficient space at its current location to accommodate its full grade span.  Respondent 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).[4] 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 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).

Petitioner asserts that DOE failed to respond to its request for space within the five-month period set forth in Education Law §2853(3)(e) and failed to offer it 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, 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 for those grades newly provided.  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]).

The record in this case indicates that petitioner was approved by its charter entity to serve students in kindergarten through grade 12 and that it served grade 12 in the 2011-2012 and 2012-2013 school years, but did not serve grade 12 in the 2013-2014 or 2014-2015 school years.  The record further indicates that petitioner resumed serving grade 12 in the 2015-2016 school year, claiming that this is an expansion for which it requires additional space.  While I have previously held that an existing charter school that required space due to an expansion of grade level was entitled to facilities under Education Law §2853(3)(e) for those grades newly provided (Appeal of Great Oaks Charter School, 54 Ed Dept Rep, Decision No. 16,692), on the record before me, I find that petitioner has failed to demonstrate that it requires additional space due to an expansion of grade level.

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 not carried its burden of establishing the facts and law upon which it seeks relief.

The record indicates that petitioner made a written request for co-location space on April 29, 2015 and that DOE failed to respond to that request within the statutorily-prescribed five-month period.  The record further indicates that DOE ultimately responded on September 29, 2015, stating that “[w]e will not be extending an offer of space at this time.”

Notwithstanding DOE’s failure to timely respond to petitioner’s request for space, as noted above, petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which it seeks relief.  Petitioner asserts that at the time it submitted its request for space in April 2015, it was serving kindergarten through grade 11, and because it “newly expanded into grade 12 after the statute was enacted and after having previously disbanded its grade 12 offering two year[s] earlier,” it is eligible for and entitled to co-location space.  It contends that the plain language of and the intent underlying the statute make it clear that co-location space is to be provided to schools expanding their grade levels after the enactment of the statute in 2014.

As noted above, Education Law §2853(3)(e) requires that 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, shall be provided access to facilities for those grades newly provided.  In this case, petitioner served ninth grade students in the 2008-2009 and 2009-2010 school years and first began serving grade 12 in the 2011-2012 school year and continued to do so in the 2012-2013 school year.  However, petitioner elected to revise its enrollment and grade configuration such that it did not serve ninth-grade students again until 2012-2013 and grade 12 students were not served again until the 2015-2016 school year.  It is not clear that petitioner’s enrollment of grade 12 students in the 2015-2016 school year constituted a “grade expansion” as contemplated by Education Law §2853(3)(e) such that petitioner is entitled to facilities for grade 12 as a grade “newly provided,” but I need not resolve that issue in this appeal.

Even if I assume that an expansion of grade level occurred in this case, as noted above, to be eligible for relief under Education Law §2853(3)(e), petitioner must establish that it requires additional space due to an expansion of grade level.  There is nothing in the record to indicate that the space petitioner currently occupies will be insufficient to serve its grade 12 class.  In fact, the record indicates that the building petitioner currently occupies can accommodate 1,300 students, including 100 students in grade 12.[5]  Petitioner served 62 grade 12 students in the 2011-2012 school year in the same building and also served grade 12 students in that building in the 2012-13 school year.  The record also indicates that during the 2014-2015 school year petitioner served approximately 1,036 students in kindergarten through grade 11.  The record further indicates that petitioner projected that in the 2015-2016 school year it would serve 56 grade 12 students.  Assuming that petitioner enrolled 100 kindergarten students for the 2015-2016 school year, petitioner’s enrollment in the 2015-2016 school year would be 1,136, which is less than the maximum number of students the building can accommodate.

I note that in February 2015, petitioner’s request to revise its charter to increase its authorized enrollment for kindergarten through grade 12 to 1,250 was approved by the Regents.[6]  Petitioner’s maximum authorized enrollment is less than the 1,300 students the building can accommodate.  In addition, documentation submitted to the Department in support of petitioner’s request to revise its charter provides the reasons petitioner was seeking an expansion in enrollment, including “[a]s all of the school’s grade are now located at one site and the School can allocate space resources accordingly, it would like to offer its educational program to more students.”  Accordingly, on this record, I cannot conclude that petitioner has demonstrated that it requires additional space due to an expansion of grade level.

Therefore, as petitioner has not demonstrated that it is a charter school that requires additional space due to an expansion of grade level, petitioner has not carried its burden in this matter.  As such, the appeal must be dismissed.

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

Nothing herein should be construed to prevent DOE from offering petitioner co-location space in the future.

THE APPEAL IS DISMISSED.

END OF FILE