Appeal of T.T., individually and on behalf of her children B.T., R.T., M.T. and T.T., RICHARD WHITE, individually and on behalf of his daughter MIA, MIRIAM HOLMES, individually and on behalf of her children SHYNAE HOLMES, ATAJIA MOORE and HORSONE MOORE, JR., and LAURIE FREY, individually and on behalf of her children, from action of the New York City Department of Education and Harlem Success Academy Charter School 4 regarding school utilization.

Appeal No. 16,361

(June 27, 2012)

Michael A. Cardozo, Corporation Counsel, attorney for respondent New York City Department of Education, Leslie Berson Mbaye, Esq., of counsel

Emily A. Kim, Peter H. Cymrot, and Daniel Soleimani, Esqs., attorneys for respondent Harlem Success Academy Charter School 4

KING, JR., Commissioner.--Petitioners challenge a determination of the New York City Department of Education (“DOE”) relating to the co-location of the fifth grade of the Harlem Success Academy Charter School 4 (“HSA 4”) (collectively “respondents”) for the 2012-2013 school year in a public school building.  The appeal must be dismissed.

Except for petitioner Frey (as discussed below), petitioners are parents of children who attend school at P.S. 149 Sojourner Truth in Manhattan (“P.S. 149”).  P.S. 149 serves students in grades prekindergarten through eight and is located in tandem buildings[1] M149 and M207 (“M149/M207 building” or “the building”).  P.S. 149 is currently co-located in the M149/M207 building with P.S. 811 Mickey Mantle School (“P811M@M149”), a public “District 75 School” that serves elementary-aged students with disabilities, and Harlem Success Academy Charter School 1 (“HSA 1”) which has been co-located in the building since 2006 and currently serves students in grades kindergarten through six.  Also located in the building is Harlem Children’s Zone, a community-based organization that operates a prekindergarten program.

In December 2010, the DOE issued two Educational Impact Statements (“EISs”), one proposing to temporarily add grade six to HSA 1 for the 2011-2012 school year (“2010-2011 EIS”) and a second EIS proposing to move HSA 1’s fifth and sixth grades to another public school building beginning in the 2012-2013 school year.  Those EISs were approved by the DOE’s Panel for Educational Policy (“PEP”) on February 1, 2011.  Consequently, beginning in the 2012-2013 school year, HSA 1 will serve only grades kindergarten through four at the M149/M207 building.

HSA 4 is an existing charter school authorized to serve students in grades kindergarten through five.  It currently serves students in grades kindergarten through four in building M113 (“M113”) where it is co-located with P.S. 241 and Opportunity Charter School.  However, M113’s classroom space is insufficient to accommodate HSA 4’s fifth grade.

On March 5, 2012, DOE issued an EIS and Revised Building Usage Plan (“BUP”) (collectively referred to as the “March 5, 2012 EIS”) pursuant to Education Law §§2590-h(2-a) and 2853(3)(a-3).  The March 5, 2012 EIS proposed that, for the 2012-2013 school year, HSA 4’s fifth grade would be co-located in the M149/M207 building, along with P.S. 149, P811M@M149, and HSA 1’s kindergarten through fourth grades.  The PEP approved the March 5, 2012 EIS on April 26, 2012.

This appeal was commenced pursuant to Education Law §2853(3)(a-5), which was added in 2010 (Chapter 101 of the Laws of 2010) and 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]).

Although the petition is not entirely clear, petitioners appear to generally challenge the determination to co-locate HSA 4’s fifth grade in the M149/M207 building and request annulment of that determination.  They also appear to challenge HSA 1’s continued co-location in the building, claiming it will “cause harm and injury to rights.”  Petitioners assert that DOE failed to “adequately provide for a fair and equitable use of space” and failed to allocate adequate and sufficient administrative support services rooms to provide an equal opportunity for a free appropriate education for students with disabilities attending P.S. 149.  Petitioners also challenge the centralized governance structure of the New York City school district and allege that DOE “has not acted in accordance with legislative intent” and has “capriciously and arbitrarily adjudicated new guidelines for building utilization instead of using a rule-making procedure.”

Respondents assert several procedural defenses, including that petitioners lack standing and that any claims regarding the 2010-2011 EIS are untimely.  Respondents deny petitioners’ allegations and contend that with respect to the current March 5, 2012 EIS, DOE complied with all statutory requirements pertaining to co-location determinations.  They maintain that DOE’s March 5, 2012 co-location determination is rational and is not arbitrary or capricious or contrary to sound educational policy.  They further assert that petitioners have failed to state a claim upon which relief may be granted.  Finally, respondent HSA 4 contends that petitioners seek relief outside the Commissioner’s authority.

Initially, I must address several procedural issues.  A reply in a charter school co-location appeal must be served within two business days of service of the answer (8 NYCRR §276.11[e][1]).  The answers in this appeal were served on June 12, 2012 by overnight mail in accordance with Commissioner’s regulations (8 NYCRR §276.11[e][2]).  Therefore, the reply should have been served no later than June 14, 2012.  Petitioners’ affidavit of service indicates that their reply was not served until June 18, 2012.  In a charter school co-location appeal, the Commissioner, in his sole discretion, may excuse the failure to timely serve a reply “for good cause beyond the control of the requesting party.”  The reasons for such failure “shall be set forth in the ... reply” (8 NYCRR §276.11[e][1]).  Petitioners do not set forth in the reply any explanation for their failure to effect timely service as required by such regulation.  Accordingly, the reply must be rejected as untimely and has not been considered.[2]

Respondents allege that petitioner Frey lacks standing because she is not the parent of any student enrolled in any school located or proposed to be located at the M149/M207 building.  Petitioner Frey alleges that she is the “parent of a child/children who have been continuously enrolled in Community School District 3 school(s) since September 1999.”  However, she does not indicate that any of her children will attend school in the M149/M207 building during the 2012-2013 school year.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Waechter, 48 Ed 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).  As petitioner Frey fails to demonstrate that she is directly affected by the co-location, her claims must be dismissed (seeAppeal of Collier, et al., 51 Ed Dept Rep, Decision No. 16,289).

Respondent HSA 4 alleges that all of the petitioners lack standing because none will be injured by the co-location.  Other than petitioner Frey discussed above, the remaining petitioners challenge DOE’s actions relating to the use of the M149/M207 building where their children attend school.  Accordingly, I find that they have standing (Appeal of Santos, 50 Ed Dept Rep, Decision No. 16,116).

Petitioners’ general challenge to the centralized governance structure of the New York City school district, including the powers and duties of the mayor and DOE, are not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5) and must be dismissed without prejudice.  Petitioners also raise general objections to the methodology set forth in DOE’s Enrollment, Capacity, Utilization Report (“Blue Book”) in calculating the building capacity of DOE public school buildings.  The Blue Book is the guide for the capacity rating of all DOE buildings and a general challenge to its methodology is not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5).  Petitioners’ claims pertaining to the calculation methodology generally set forth in the Blue Book, therefore, are dismissed without prejudice.

Additionally, petitioners’ appeal must be dismissed to the extent that they challenge certain permissible class activities.  Specifically, they complain that students in P.S. 149 are not permitted to take part in Halloween celebrations, while charter school students may do so.  As noted above, the scope of this appeal is limited to claims regarding the determination to locate or co-locate a charter school within a public school building, the implementation of and compliance with a 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) (see Education Law §2853[3][a-5]; 8 NYCRR §276.11[b][1]).  Claims regarding the type of classroom activities generally permitted by DOE in its schools are not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5) and must be dismissed without prejudice.

Finally, petitioners’ attempt to challenge the 2010-2011 EIS, which temporarily expanded HSA 1 to include grade six, 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).  Although petitioners characterize the March 5, 2012 EIS as extending the co-location of HSA 1 generally, petitioners are incorrect.  The record indicates that the co-location of HSA 1 in the building commenced in 2006.  The March 5, 2012 EIS only adds grade five of HSA 4 and merely refers to the re-siting of HSA 1’s grades five and six out of the building in the 2012-2013 school year, as approved in the second December 2010 EIS.  Accordingly, to the extent petitioners attempt to generally challenge the co-location of HSA 1 in the building or challenge specific aspects of the 2010-2011 EIS, which temporarily expanded HSA 1 to include grade six, including shared space allocations for the 2010-2011 and/or 2011-2012 school years, those claims must be dismissed as untimely.  Such claims are clearly outside the required 30-day time period and petitioners offer no explanation for the delay.[3]

Turning to the merits of petitioners’ remaining claims, Education Law §2590-h(2-a) was enacted in 2009 as part of the New York City school governance legislation (Chapter 345 of the Laws of 2009).  Among other things, Education Law §2590-h(2-a) requires the Chancellor of the City School District of the City of New York (“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.  The purpose of requiring that an EIS be created prior to a significant change in school utilization is to provide sufficient information to the public to inform their comments on a proposal (Appeal of Battis, 50 Ed Dept Rep, Decision No. 16,115).  An EIS is required to include:

Further, pursuant to Education Law §2853(3)(a-3)(1), after a public school building has been selected for a proposed co-location of a charter school, the DOE is required to develop a BUP which must be included within the EIS.  At a minimum, the BUP must include:

As noted in Appeal of Battis, et al. (50 Ed Dept Rep, Decision No. 16,115), the appropriate standard of review of an EIS under Education Law §2590-h(2-a) is substantial compliance (seealsoEspinet, et al., 50 Ed Dept Rep, Decision No. 16,212).  In addition, and also with respect to a BUP, the Commissioner will not substitute his judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building (seeAppeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  Accordingly, absent proof that DOE’s determination regarding the allocation and shared use of space lacked a rational basis, it will not be set aside (Appeal of Litichevsky, et al., 50 Ed Dept Rep, Decision No. 16,254).  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).

While petitioners do not articulate specific challenges to any particular provision of the March 5, 2012 EIS and/or BUP, they appear to assert generally that the proposed co-location of HSA 4’s fifth grade in the building results in an inequitable allocation of space. 

Decisions on the allocation of space in a school building containing multiple schools are complex, with needs changing over time, as programs and enrollment change.  Such decisions necessarily involve pedagogical judgments and cannot reasonably be expected to be made with scientific precision.  For those reasons, such decisions, like decisions on school closings, must be left to the sound discretion of local school officials, in this case DOE.  Accordingly, I will not substitute my judgment for that of DOE in determining whether the allocation and shared use of space in a BUP result in equitable and comparable use of the building.  Absent proof that DOE’s determination lacked a rational basis, it will not be set aside (cf. Appeals of Luciano and Hatton, 50 Ed Dept Rep, Decision No. 16,153; Appeals of Tzach and El-Rez, 49 id. 247, Decision No. 16,016).

Petitioners generally challenge the allocation of shared spaces such as the cafeteria, auditorium and playground area.  However, the BUP contains a detailed proposal for the use of shared spaces including a table indicating the amount of time per week each co-located school would have access to the cafeteria, library[4], gymnasium, auditorium and playground.  The BUP also provides a justification for how the proposed allocations result in “equitable and comparable” use as required by the statute and explains that the proposal is based on several factors, including enrollments for each currently co-located school, current space allocation plans, current lunch schedules for the existing schools in the building, the total capacity of each shared space, the grades served by each of the co-located schools, and the start and end times of the school day.  The BUP states that the proposed shared space schedules for the cafeteria, gymnasiums, auditorium and playground do not deviate from those set forth in the previous 2011-2012 shared space plan.  This is significant given that the total projected enrollment of both charter schools, as well as that of the public schools, will not change significantly in the 2012-2013 school year.

With respect to the proposed cafeteria schedule, petitioners allege that there is not enough space in the building and that elementary school children eat lunch in a shared cafeteria at 10:30 a.m.  I note, however, that the BUP indicates that P.S. 149’s time in the cafeteria begins at 10:45 a.m. and ends at 12:30 p.m. each day.  The BUP further indicates that the time was allocated to each school based on projected enrollment, capacity of the cafeteria and grade levels served.  As noted above, the BUP notes that the proposed schedule does not deviate from the previous 2011-2012 shared space plan  The record shows that there will be no reduction in the public schools’ access to the cafeteria as a result of the proposed co-location.  The record contains no evidence that the proposed allocation and shared usage of the cafeteria would result in an inequitable use of space.  Accordingly, I find that petitioners failed to meet their burden of proof with respect to the allocation of shared space in the cafeteria.

Similarly, I find that petitioners failed to carry their burden of establishing that the proposed allocation and shared usage of the auditorium would result in an inequitable use of shared space.  Petitioners claim that the students at P.S. 149 have limited time in the auditorium and that, for morning assembly, they are only allocated time on Tuesdays from 10:00 a.m. to 10:45 a.m.  However, the BUP indicates that in addition to Tuesday mornings, P.S. 149 is allocated time in the auditorium every afternoon from 1:45 p.m. to 3:50 p.m.  The BUP further provides that the time in the auditorium has been allocated proportionally based on the relative enrollments of each school and each school’s current scheduled use, and does not deviate from the previous 2011-2012 shared space plan.

Petitioners also argue that a soccer field takes up a good portion of the playground and that the P.S. 149 students are not permitted to use it.  However, petitioners offer no proof to support their claim.  In contrast, an affidavit by Noah Green, submitted by HSA 4, states that he observed P.S. 149 students “regularly using and enjoying the soccer field.”  Indeed, the BUP’s allocation of playground space includes the soccer field and represents no change from the previous 2011-2012 shared space plan.

To the extent petitioners argue that the allocation of any shared spaces are inequitable, they have submitted no evidence to support such claims other than anecdotal and speculative assertions.  Moreover, as noted above, the BUP attached to the March 5, 2012 EIS indicates that the shared space allocations do not deviate from those set forth in the 2011-2012 shared space plan and petitioners allege no significant changes in enrollment or otherwise for the 2012-2013 school year.  I, therefore, find that petitioners have failed to carry their burden with respect to these claims.

Although not clearly articulated, petitioners appear to contend that DOE failed to provide adequate administrative and support services rooms for students with disabilities.  As noted above, petitioners bear the burden of proof in an appeal to the Commissioner.  The March 5, 2012 EIS discusses the capacity of the M149/M207 building and indicates that all students with an Individualized Education Program (“IEP”) will continue to receive mandated services.  The EIS explains that changes to “existing support services are not expected as a result of the proposal.”  Petitioners speculate that the co-location does not provide adequate administrative and support services rooms and will adversely impact students with disabilities, but have offered no proof that such is the case.  Based on the record before me, therefore, I find that petitioners have failed to meet their burden of proof on this issue.

In addition to their space allocation challenges, petitioners also challenge generally the determination to co-locate HSA 4’s fifth grade in the M149/M207 building.  However, as set forth below, the record does not support a finding that DOE acted arbitrarily, capriciously or without a rational basis in this respect.

To support their claim, petitioners generally assert that the proposed HSA 4 fifth grade co-location will negatively impact their children’s education due to overcrowding and the continued loss of classrooms and services rooms.  However, the March 5, 2012 EIS discusses the impact of the co-location on students currently attending school in the M149/M207 building and explains that the number of students that will be served in the M149/M207 building as a result of the HSA 4 fifth grade co-location represents only a small increase, due to the re-siting of the HSA 1’s fifth and sixth grades out of the building.  The March 5, 2012 EIS indicates that the building can accommodate the co-location of HSA 4’s fifth grade and that the classroom space available for P.S. 149 and P811M@M149 will not change from the room allocations of the previous year set forth in the prior BUP.  It further allocated to P.S. 149 four additional full-size rooms above its baseline allocation.  Moreover, the current BUP states that no “rooms are reallocated from [P.S. 149 and P811M@M149] to provide space for HSA 4 because the fifth grade of HSA 4 is able to be properly accommodated by using the excess rooms that had been allocated to HSA 1 for 2012-2013.”  Petitioners have failed to carry their burden with respect to this claim.

Petitioners also object to the allocation of bathroom space, alleging that the bathrooms used by HSA 1 students have been remodeled and that the bathrooms used by P.S. 149 are “painted in prison colors.”  They further argue that P.S. 149 students on the third floor have to travel to a different floor to use the bathrooms assigned to them.[5] Respondents acknowledge that the bathrooms used by HSA 1 students have been remodeled, but also note that P.S. 149 received required matching capital improvement funds, which were spent on different capital improvement projects. 

Based on the record before me, I am unable to find that petitioners have carried their burden with respect to this claim.

In addition, petitioners argue that there is no music program and no music room for P.S. 149 students.[6] Petitioners fail to demonstrate that the music program was discontinued as a result of the co-location, nor do they allege that a music program will not be offered during the 2012-2013 school year.  The BUP provides that school leaders are empowered to make decisions about how to utilize the space allocated to the school and each principal must make decisions about how and where students will be served within the space allocated to the school.  Indeed, in its verified answer, DOE explains that the music program ended several years ago, but notes that the EIS allocates to P.S. 149 four classrooms above its recommended allocation, which “the principal may use ... for whatever programs she chooses.”  Accordingly, petitioners have failed to carry their burden.  I also note that, to the extent that petitioners attempt to challenge the decision to discontinue a particular music program, such claim is untimely. 

With respect to petitioners’ claim that there is no longer a room for Academic Intervention Services (“AIS”), I note that petitioners acknowledge that AIS is provided to students twice per week from 2:55 p.m. to 3:40 p.m.  Pursuant to 8 NYCRR §100.2(ee)(5), AIS may be provided to students beyond the regular school day.  Petitioners failed to carry their burden on this issue.

While not clearly articulated, petitioners assert that the “science lab is not being used the way it should be because we do not have enough classrooms to program using the science lab as a lab.”  I note that the BUP included the science demonstration room in its calculations, and in its answer, DOE states that there is a science demonstration room on the fourth floor allocated to P.S. 149.  As noted above, the BUP provides that space allocations for P.S. 149 have not been changed and explains that school leaders are empowered to make decisions about how to utilize the space allocated to the school and that each principal must make decisions about how and where students will be served within the space allocated to the school.

With respect to petitioners’ claim that there is no room for students to form a club, the record indicates that P.S. 149 offers numerous extracurricular activities, including clubs.  Additionally, the March 5, 2012 EIS indicates that respondent does not anticipate that the proposal to co-locate will impact special programs and initiatives or extracurricular activities which are based on student interest, available resources and staff support for those programs.  I, therefore, find no merit to petitioners’ claim that there is not room for their children to form a club.

Likewise, I find that the record does not support petitioners’ claim that enrollment in the middle school was being limited because there is only room for one class per grade.  The EIS indicates that the proposal to co-locate the fifth grade of HSA 4 in the building is not expected to impact the future student enrollment at P.S. 149 or P811M@M149.  It also explains that P.S. 149 admits students into elementary grades according to Chancellor’s Regulations A-101 and that P811M@M149 enrolls students according to the classifications on their IEPs.  Petitioners, therefore, have not carried their burden on this claim.

As discussed above, I cannot conclude from the record before me that DOE’s determination to co-locate HSA 4’s fifth grade in the M149/M207 building for the 2012-2013 school year was arbitrary, capricious or lacked a rational basis and find that petitioners have not met their burden of proof.

I have considered petitioners’ remaining claims and find them to be without merit.

THE APPEAL IS DISMISSED except that, as indicated above, claims not properly raised in an appeal commenced pursuant to Education Law §2853(3)(a-5), specifically, petitioners’ challenges to the centralized governance structure of the New York City school district, to the calculation methodology set forth in the Blue Book, and to the type of classroom activities permitted by DOE in its schools are dismissed without prejudice to commencing a non-expedited appeal pursuant to Education Law §310 and Parts 275 and 276 of the Commissioner’s regulations within 10 days after receipt of this decision.

END OF FILE.