Appeal of ROSALYN YALOW CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,690

(December 19, 2014)

Simpson Thacher & Bartlett LLP, attorneys for petitioner, William R. Dougherty, William T. Russell, Jr., David Elbaum and Jason B. Gumer, Esqs., of counsel

Zachary W. Carter, Esq. Corporation Counsel, attorney for respondent, Stephen Kitzinger, Esq., of counsel

KING, JR., Commissioner.--Petitioner, Rosalyn Yalow Charter School (“Rosalyn Yalow” or “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 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 in part.

Petitioner is a charter school authorized to serve students in grades kindergarten through five and scheduled to commence instruction in the 2015–2016 school year.  When it opens in the fall of 2015, the school will serve students in kindergarten and first grade and will grow each year until the 2019 - 2020 school year when it will serve students in kindergarten through fifth grade.

On May 21, 2014, petitioner’s executive director sent an email to DOE indicating that petitioner “will be applying to the Department of Education for space in which to open [its] new charter school.”  He requested information about the application process and provided information about student enrollment and the number of classes to be served by the school.

According to petitioner’s executive director, on May 30, 2014, he had a conversation with DOE’s executive director for charter evaluation and policy who advised him that DOE had received petitioner’s request for co-location space, but noted that DOE was still formalizing its process for co-location requests in light of recent amendments to the New York State Charter Schools Act.

At its June 24, 2014 meeting, the New York State Board of Regents (“Regents”) approved and issued to petitioner a charter and provisional charter to operate a charter school for a five year term pursuant to Education Law 2851(2)(p).

By email dated July 28, 2014 to DOE’s executive director for charter evaluation and policy, petitioner’s executive director indicated that he was “following up on [his] initial May 21 request to the DOE for co-location space.”  He referred to their May 30, 2014 conversation and indicated that he was seeking an update.  In her response, DOE’s executive director for charter evaluation and policy advised that she was no longer with the office that managed charter space requests and provided contact information for the leader of DOE’s team managing such requests.

In a letter dated July 28, 2014 to the leader of DOE’s team managing the requests for co-location space, petitioner’s executive director indicated that he was “following up on our initial May 21 written e-mail request ... for co-location space ....”  He further indicated that “in view of recent personnel changes within DOE, the Rosalyn Yalow Charter School hereby submits this new written request for co-location in a public school building ....”  This appeal ensued on November 19, 2014.  The record indicates that, at that time, petitioner had not received a response from DOE regarding its request for co-location space.

On December 4, 2014, after this appeal was filed, DOE responded to petitioner’s July 28, 2014 request indicating that it did not have “appropriate space in a DOE building in Community School District 10 to site the school and therefore cannot extend an offer of co-located space at this time.”

Petitioner asserts that DOE failed to respond, within the statutorily prescribed 5-month time period, to its application for co-location with an offer of either co-location space in a public school facility or space in another public or private facility at no cost to petitioner.  It seeks an order that DOE pay rental assistance in accordance with Education Law §2853(3)(e)(5) for students in all grades for which petitioner has been approved to provide instruction during the term of its charter.

Respondent argues that the appeal is premature as petitioner did not submit a request for co-location space until July 28, 2014.  It asserts that the May 21, 2014 email was not a request for space, but rather a request for information about the process of applying for space.  Respondent admits that on the date the petition was filed, it had not offered petitioner the use of any facilities.  However, it requests that I rule on the merits of the petition because the issues are ripe in light of its December 4, 2014 letter denying petitioner’s co-location request and seeks that the appeal be dismissed in its entirety.  In addition, DOE asserts that, in the event that I find in petitioner’s favor, petitioner is not entitled to an amount calculated based upon the number of students in all grades for which it has been approved to provide instruction during the term of its charter, but rather any relief must be determined as set forth in Education Law §2853(3)(e)(5) based on the lesser of the actual rental cost of a private site identified by the charter school or 20 percent of the charter school’s basic tuition computed for its current year enrollment.

In its reply, petitioner notes that DOE has affirmatively agreed that the issues raised in this appeal are now ripe for review and further asserts that DOE has not offered any basis for its request that petitioner’s appeal be dismissed.

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 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 application for co-location space with an offer of either co-location space in a public school facility or space in another public or private facility at no cost to petitioner.  Education Law §2853(3)(e) provides that in the City School District of the City of New York, charter schools that are approved by their charter entity to first commence instruction 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 expense to the charter school (Education Law §2853[3][e][1]).

     The record indicates that in its December 4 response to petitioner’s request for co-location space,[1] DOE indicated that it did not have “appropriate space in a DOE building in Community School District 10 to site the school and therefore cannot extend an offer of co-located space at this time.”  However, in the event that DOE did not offer petitioner a co-location site in a public school building, it was nevertheless required by Education Law §2853(3)(e)(1) to offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner.  Instead, DOE indicated only that it could not extend an offer of co-located space.  As it did not offer petitioner space in a privately owned or other publicly owned facility at the expense of the city school district and at no expense to petitioner, DOE 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 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.  While 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 upon which it seeks relief.

I agree with petitioner that, in accordance with Education Law §2853(3)(e)(5), DOE is required to pay rental assistance based on student enrollment in all grades for which petitioner has been approved to provide instruction during the term of its charter.  However, to the extent petitioner appears to argue that such payments must be based on the enrollment projections set forth in its charter for each year of the charter term, I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment.  Specifically, with respect to a new charter school whose charter is granted before October 1, 2016, “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 formation of the new charter school that is equal to the lesser of: (A) the actual rental cost of an alternative privately owned site selected by the charter school or (B) twenty percent of the product of the charter school’s basic tuition for the current school year and (i) for a new charter school that first commences instruction on or after July first, [2014], the charter school’s current year enrollment ...” (Education Law §2853[3][e][5]).

The amounts payable to a charter school in its first year of operation shall be based on the projections of initial-year enrollment set forth in the charter until actual enrollment is reported to the school district by the charter school (see Education Law §2856[1][b]).  Such projections shall be reconciled with the actual enrollment at the end of the school’s first year of operation, and any adjustment shall be made to payments during the school’s second year of operation (see Education Law §2856[1][b]).  The record in this case indicates that the charter school will first commence instruction in the 2015–2016 school year with an estimated enrollment of 202 students.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner in each year of the charter the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the current school year (e.g., the 2015-2016 school year in the first year) and petitioner’s enrollment for the current school year (e.g., the 2015-2016 school year in the first year).  As noted above, while I agree with petitioner that DOE is obligated to pay for all the grades in the newly-opened charter school in each year of the initial charter term, the amount payable must be based on the charter school’s actual current year enrollment.  Education Law §2853(3)(e) is intended to require DOE to bear the cost of charter school facilities.  To hold otherwise in this case would thwart the intent of Education Law §2853(3)(e) by effectively allowing DOE to force a new charter school to lease space with no guarantee that it will have sufficient space at DOE expense to provide instruction in the grades provided in the charter.  On the other hand, DOE should not be required to pay for space that is not needed based on the charter school’s enrollment in the current year.

In this instance, petitioner also has not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the charter school an opportunity to do so.  Petitioner must present DOE with evidence of the actual rental cost of an alternative privately owned site so that DOE can determine whether such rental cost is lesser than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

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

THE APPEAL IS SUSTAINED TO THE EXTENT INDICATED.

IT IS ORDERED that DOE comply with the requirements of Education Law §2853(3)(e)(5) in accordance with this decision and pay petitioner the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of petitioner’s basic tuition for the 2015-2016 school year and petitioner’s current year enrollment.

END OF FILE