Appeal of ROSS GLOBAL ACADEMY CHARTER SCHOOL from action of the New York City Department of Education, and Joel I. Klein, as Chancellor of the New York City Department of Education, regarding the nonrenewal of its charter.

Decision No. 16,194

(January 19, 2011)

Whiteman, Osterman & Hanna, LLP and Hughes Hubbard & Reed, LLP, attorneys for petitioner, Kevin P. Quinn, Esq., John J. Henry, Esq., Edward J.M. Little, Esq., Ned H. Bassen, Esq. and Gabrielle Y. Vasquez, Esq., of counsel

Michael A. Cardozo, Corporation Counsel, attorney for respondents, John Buhta, Esq., of counsel

STEINER, Commissioner.--Petitioner, Ross Global Academy Charter School (“RGACS”), appeals a decision of the Chancellor of the New York City Department of Education (“Chancellor”) regarding the nonrenewal of its charter.  The appeal must be dismissed.

Petitioner is a charter school that is organized and operates under Article 56 of the Education Law.  In 2005, the Chancellor, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with RGACS for the operation of a charter school for five years.  Pursuant to Education Law §§2852(5) and (5-a), the proposed charter agreement was submitted to the New York State Board of Regents (“Board of Regents”) which approved and issued it in January 2006.  In 2010, petitioner submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.  This appeal ensued.

Petitioner contends that the Chancellor and his staff failed to follow appropriate policies and procedures in making the nonrenewal decision, that it was treated differently than other allegedly “similarly situated” charter schools, and that its charter should be renewed.  Respondents advance several contentions, including as a threshold matter, that I lack jurisdiction to entertain this appeal.

The appeal must be dismissed for lack of jurisdiction. Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”  As discussed more fully below, this appeal is an administrative proceeding that challenges the denial of an application for a charter school.  Because the legislature has proscribed administrative review, I lack jurisdiction and the appeal must be dismissed.

Petitioner incorrectly argues that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school.  Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article” (emphasis added).  Accordingly, the provisions of Education Law §2852 are expressly made applicable to applications to renew existing charter schools.  This includes Education Law §2852(6) (seeMatter of New Covenant Charter School Educ. Faculty Ass’n., et al., v. Bd. of Trustees of the State University of New York, et al., Sup Ct, Albany Co., November 29, 2010, Zwack, J., Index No. 4162-10).

Petitioner further contends that Education Law §2852(6) is inapplicable arguing that the Chancellor’s action with respect to RGACS’s nonrenewal constitutes only a recommendation, and that the ultimate decision regarding its nonrenewal rests with the Board of Regents.  This position is also incorrect.[1]  As discussed below, it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.  Thus, while the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that petitioner’s charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.

Under the charter school law, the charter entity (in this case, the Chancellor) and the school must first enter into a proposed agreement, known as a charter, for the organization and operation of the charter school (see Education Law §2852[5]).[2]  Thereafter, the charter entity submits the proposed charter agreement to the Board of Regents, which must review the proposed charter and either (a) approve and issue it “as proposed by the charter entity,” or (b) return it to the charter entity for reconsideration with written comments and recommendations (Education Law §2852[5-a]; seealso Education Law §2852[5]).  The Board of Regents, therefore, does not have the ability to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity (Education Law §2852[5-a]; Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).

As the Appellate Division held in Roosevelt, “the ‘authority’ of the Board of Regents to ‘approve’ a proposed charter is circumscribed by Education Law §2852(5-a) and (5-b)” (id.).  Neither Education Law §2852(5-a) nor Education Law §2852(5-b) (which deals with the resubmission of a proposed charter to the Board of Regents after it is returned to a charter entity) authorize the Board of Regents to alter the charter agreement submitted to it by another charter entity.

Moreover, in the case of a nonrenewal, a charter entity determines not to enter into a proposed agreement with a charter school, and thus no proposed charter is submitted to the Board of Regents for review.  In addition, there is no other provision in Article 56 of the Education Law that otherwise authorizes the Board of Regents to review the nonrenewal decision of another charter entity.  Accordingly, under the statutory scheme presented by Article 56 of the Education Law, the decision to not renew a charter school necessarily rests solely with that school’s charter entity.[3]

Petitioner, however, suggests that Education Law §2853(1)(a) gives the Board of Regents the final say with respect to a charter school’s nonrenewal.  This argument, however, lacks merit.  Education Law §2853(1) merely describes the Board of Regents’ responsibilities with respect to a charter school’s certificate of incorporation upon the approval of a charter, the renewal of a charter, or the “termination or nonrenewal” of a charter.  It does not, however, speak to the process for the approval of a charter agreement or its renewal, or expand the Board of Regents’ authority under Education Law §§2852(5) and (5-a).

Finally, petitioner argues that if Education Law §2852(6) is interpreted to foreclose review under Education Law §310, it would be unconstitutional because it would deny an existing charter school due process of law and would “abridge the general jurisdiction of the New York Supreme Court as guaranteed by the New York State Constitution.”  However, since this is an administrative proceeding, my jurisdiction is limited to the authority granted by the legislature (seee.g.Abiele Contracting, Inc. v. New York City School Const. Authority, 91 NY2d 1; Foy, et al. v. Schechter, et al., 1 NY2d 604), and I need not address what effect, if any, Education Law §2852(6) might have on the jurisdiction of the courts in this state.  Moreover, an appeal to the Commissioner is not the proper forum to adjudicate novel issues of constitutional law or to challenge the constitutionality of a statute or regulation (Appeal of C.S., 49 Ed Dept Rep 106, Decision No. 15,971; Appeal of J.A., 48 id. 118, Decision No. 15,810; Appeal of Keller, 47 id. 224, Decision No. 15,677).  A novel claim of constitutional dimension should properly be presented to a court of competent jurisdiction (Appeal of J.A., 48 Ed Dept Rep 118, Decision No. 15,810).

In light of this disposition, I am constrained from ruling upon the legal sufficiency of the procedures used by the Chancellor and his staff in the nonrenewal process.

THE APPEAL IS DISMISSED.

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