Decision No. 17,469
Appeal of EMBER CHARTER SCHOOL FOR MINDFUL EDUCATION, INNOVATION & TRANSFORMATION from action of the New York City Department of Education regarding school utilization.
Decision No. 17,469
(August 1, 2018)
Rafiq R. Kalam Id-Din II, Esq., attorney for petitioner
Zachary W. Carter, Corporation Counsel, attorney for respondent, Andrew J. Rauchberg, Esq., of counsel
ELIA, Commissioner.--Petitioner, Ember Charter School for Mindful Education, Innovation & Transformation[1] (“the school”), challenges the New York City Department of Education’s (“DOE” or “respondent”) failure to offer it a co-location site 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 petitioner, as required by Education Law §2853(3)(e). The appeal must be sustained.
Petitioner is currently authorized by respondent’s Chancellor[2] to serve students in kindergarten through grade 8. Its initial charter was issued in January 2010, authorizing it to serve students in kindergarten through grade 5. In April 2016, in accordance with the Chancellor’s recommendation, the Board of Regents approved a revision to the school’s charter to add grade 6. The following year, in March 2017, in accordance with the Chancellor’s recommendation, the Board of Regents approved a renewal to the school’s charter and a revision authorizing the school to expand to serve students in grades 7 and 8, as well as a revision approving the school’s request to change its name from Teaching Firms of America Professional Preparatory Charter School to Ember Charter School for Mindful Education, Innovation & Transformation.
In the 2016-2017 school year, petitioner served students in kindergarten through grade 6 in private space.[3] In the 2017-2018 school year, it expanded to serve students in grade 7.
On May 29, 2018, petitioner submitted a written request for co-location for its expansion to grade 7, pursuant to Education Law §2853(3)(e) using DOE’s online “Portal.”[4] By letter dated May 30, 2018, DOE acknowledged petitioner’s “request dated May 29, 2018 seeking space for the 2017-2018 school year for the seventh grade of Ember Charter School for Mindful Education, Innovation and Transformation,” but stated that it would “not be extending an offer of space at this time.” This appeal ensued.
Petitioner asserts that DOE has not offered 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 it, in violation of Education Law §2853(3)(e). As relief, petitioner seeks an order directing DOE to pay petitioner, only for the 2017-2018 school year,[5],[6] an amount attributable to its grade level expansion that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).[7]
Respondent admits that it did not offer petitioner its requested space.
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, 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 admits that it responded to petitioner’s May 29, 2018 request seeking space for grade 7 and that it did not offer space to petitioner. However, in response to petitioner’s request, DOE was required by Education Law §2853(3)(e)(1) to offer petitioner space 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 petitioner’s grade 7 in the 2017-2018 school year 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.
The record indicates that, in March 2017, in accordance with the Chancellor’s recommendation, the Board of Regents approved a charter revision authorizing the school to expand to serve students in grade 7 and that the school expanded to serve students in grade 7 in the 2017-2018 school year, an expansion for which it required additional space. Therefore, on the record before me, I find that petitioner has established that it required 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 is entitled either to a co-location or to an offer of private or other publicly-owned space (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 for the 2017-2018 school year rental assistance based on student enrollment in the newly-added grade 7 for which the school has been approved to provide instruction. 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 school’s newly-added grade 7 for the 2017-2018 school year, an amount attributable to its expansion to grade 7 that is calculated in accordance with the formula set forth in Education Law §2853(3)(e)(5).
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 petitioner for its newly-added grade 7, 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).
END OF FILE
[1] Petitioner was initially chartered under the name “Teaching Firms of America Professional Preparatory Charter School.”
[2] I note that, in its answer, respondent “admits, upon information and belief, that petitioner has been authorized by its current charter entity, the Board of Regents of the University of the State of New York, to operate a charter school ....” Pursuant to §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 the school which indicate that petitioner is authorized by the Chancellor of the City School District of the City of New York.
[3] In a previous appeal, petitioner challenged DOE’s failure to offer co-location space in response to its May 9, 2016 request for space for its grades 5 and 6. On July 13, 2016, a decision was issued ordering DOE to comply with the requirements of Education Law §2853(3)(e)(5) with respect to only the school’s grade 6 expansion. (see Appeal of Teaching Firms of America Professional Preparatory Charter School, 56 Ed Dept Rep, Decision No. 16,922). That decision was upheld in Teaching Firms of America-Professional Preparatory Charter School v. The New York City Department of Education, et al., Index No. 906861-16, Supreme Court, Albany County [Connolly, J.], April 20, 2017.
[4] Request for Charter School Co-location in DOE Facilities, Item 2(11).
[5] I note that petitioner’s request for co-location was submitted after the commencement of the 2017-2018 school year. However, DOE did not raise any objection, such as laches, and the issue is not before me.
[6] Respondent has offered co-location space to petitioner for its grades 6 through 8 in building K262 beginning in the 2018-2019 school year.
[7] Although the petition cites 20 percent as the percentage in the statutory rental assistance formula, I note that effective July 1, 2017, Education Law §2853(3)(e)(5) was amended to increase the percentage in the rental assistance formula from 20 percent to 30 percent.