Appeal of COMMUNITY EDUCATION COUNCIL DISTRICT 3,[1] on behalf of DISTRICT 3 MIDDLE SCHOOL CHILDREN, from action of the State University of New York - Charter Schools Committee regarding approval of a charter.

Decision No. 17,774

(October 22, 2019)

Ralph A. Rossi II, Esq., attorney for respondent

BERLIN., Interim Commissioner.--Petitioner appeals from action of the State University of New York - Charter Schools Committee (“SUNY Committee” or “respondent”) authorizing KIPP NYC Public Charter Schools II, a not-for-profit education corporation, to operate KIPP Beyond Charter School (“KIPP Beyond”).  The appeal must be dismissed.

According to the record, on March 4, 2019, respondent approved a proposed charter granting KIPP NYC Public Charter Schools II — which is authorized by the State University of New York (“SUNY”) — the authority to operate an additional charter school, KIPP Beyond.  This appeal ensued.  Petitioner’s request for interim relief was denied on April 29, 2019.

Petitioner asserts that the SUNY Committee’s approval of the proposed charter must be reversed due to:  respondent’s failure to consider community opposition to the proposed charter school; insufficient evidence that the proposed charter school will provide significant educational benefit; and respondent’s failure to consider the educational impact of approval.  Petitioner also alleges that the composite scoring considered by respondent in approving the proposed charter may have been inaccurate.

Respondent asserts that I lack jurisdiction over it under Education Law §310.  Respondent also contends that Kimberly Watkins lacks standing to maintain the appeal.  Respondent further asserts that the appeal is untimely, and that petitioner failed to join necessary parties.  Finally, respondent maintains that petitioner has not established a right to the relief sought.

The appeal must be dismissed as outside the jurisdiction of the Commissioner of Education pursuant to Education Law §310 (see Appeal of Diana Marie Van Vleet, 58 Ed Dept Rep, Decision No. 17,538; Appeal of Interfaith Medical Center, 27 id. 405, Decision No. 11,991).  The material portion of Education Law §310 reads as follows:

“Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article.  The petition may be made in consequence of any action:  [...]

“7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools.”

Despite the seemingly broad language of the statute, the jurisdiction of the Commissioner to determine appeals is circumscribed.  Attempts to construe §310 as affording a basis to review any matter arising under the Education Law have been consistently rejected by the Courts:

“It is petitioner's contention that Education Law §310(7) is so broad and apparently all encompassing as to require the Commissioner to determine an appeal of virtually anyone who has a grievance concerning any matter under the Education Law.  That subdivision is not such a general vehicle for review.  Indeed, In Matter of Bowen v. Allen (17 AD2d 12, 230 NYS2d 578, affd 13 NY2d 663, 240 NYS2d 991), this court, evaluating a similar argument, observed that although the language contained in Education Law §310(7) ‘could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, the words ... do not stand alone ... are circumscribed and modified by the contextual words which precede and follow them’ (supra, p.14).  Accordingly, it was concluded that the statute deals throughout with the common schools and inferentially, that it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law (supra, p.15)” (Matter of Bd. of Ed. City School Dist. of Rome v. Ambach, 118 AD2d 932; see also Matter of Zangrillo v. Ambach, 70 AD2d 790, lv to app den 48 NY2d 611).

The statute’s reference to “common schools” is intended to mean the State’s public elementary and secondary schools, over which the Commissioner has long exercised supervisory powers (Appeal of Interfaith Medical Center, 27 Ed Dept Rep 405, Decision No. 11,991.  Therefore, I find that Education Law §310 does not confer authority on the Commissioner to review respondent State University of New York - Charter Schools Committee’s action.

I note that, specifically with respect to the creation of charter schools, Article 56 of the Education Law (“Charter Schools Act”) sets forth the applicable process and procedure.  Pursuant to the Charter Schools Act, a charter entity - such as SUNY - must submit an approved charter to the Board of Regents (“Regents”) for its review.  The Board of Regents may approve the charter as proposed or return it to the charter entity for reconsideration with written comments and recommendations (see Education Law §2852[5-a]).  Therefore, pursuant to the Charter Schools Act, any concerns petitioner had regarding respondent’s authorization of KIPP Beyond’s charter could have been presented to the Regents for review in determining whether to return the proposed charter to SUNY for reconsideration pursuant to Education Law §2852(5-a).

In any event, as discussed above, to the extent petitioner seeks reconsideration or reversal of the approval of KIPP Beyond’s charter by SUNY, an appeal to the Commissioner pursuant to Education Law §310 is the improper avenue.  Accordingly, the Commissioner is constrained from ruling upon the legal sufficiency of the procedures used by SUNY in its approval process.

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

As a final matter, respondent requests that, upon dismissal, it be awarded costs and disbursements.  The Commissioner has no authority to award monetary damages, costs, or reimbursements in an appeal pursuant to Education Law §310 (Appeal of D.B., 57 Ed Dept Rep, Decision No. 17,244; Application of Kolbmann, 48 id. 370, Decision No. 15,888).

THE APPEAL IS DISMISSED.

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