Appeal of NEW DAWN CHARTER HIGH SCHOOL from action of the New York City Department of Education regarding school utilization.

Decision No. 16,709

(February 17, 2015)

DLA Piper, LLP (US), attorneys for petitioner, Dennis M. Cariello, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Martin Bowe, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, New Dawn Charter High School (“petitioner”), challenges the New York City Department of Education’s (“respondent”)[1] 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 dismissed.

Petitioner is a charter school authorized to serve 500 transfer students in grades nine through twelve in Community School District (“CSD”) 15.  Petitioner’s charter was issued by the Board of Regents in September 2011 for a term of five years.  Petitioner serves students who are between the ages of 15 and 21 and have insufficient credits compared to their typical peers in high school.  Petitioner places students at the appropriate level according to the number of credits with which each student enters (petitioner refers to these groupings as “grade levels”).  According to petitioner’s charter application, it serves grades nine through twelve and projected an initial enrollment of 150 students in the 2012-2013 school year – its first year of operation.  Petitioner actually commenced instruction in the 2012-2013 school year with 145 students across its four grade levels and adds students to each of the grade levels each year.  The record indicates that petitioner served 298 students in the 2014-2015 school year and that its enrollment will continue to increase over the term of its charter to a total of 500 students in grades nine through twelve during the 2017-2018 school year.

By letter dated August 4, 2014, DOE was notified of petitioner’s need for space in CSD 15.  By letter dated December 22, 2014, DOE acknowledged the August 4, 2014 request for space but stated that it would not extend “an offer of co-located space in a DOE building in Community School District (CSD) 15 at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer facilities in violation of Education Law §2853(3)(e).  As relief, petitioner seeks an order directing DOE to “pay rental assistance, in accordance with Education Law §2853(3)(e)(5) to New Dawn School for all new students associated with its expansion….”

Respondent denies petitioner’s allegations and contends that Education Law §2853(3)(e) precludes an award of rental assistance for expansion of enrollment within existing grades.[2]  Respondent requests that the appeal be dismissed in its entirety.

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 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 request 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 require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter and request co-location in a public school building shall be provided access to facilities for those grades newly provided.  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 in this case indicates that petitioner was approved by its charter entity to serve 500 transfer students in grades nine through twelve when it was initially chartered in 2011, and that it commenced instruction in the 2012-2013 school year with 145 students in its four grade levels.  Petitioner asserts in its petition that the school “was expected to expand the enrollment of its grade levels…” (emphasis supplied).  Thereafter, in the 2014-2015 school year, petitioner served 298 students, for whom it claims it requires additional space.  While I have previously held that an existing charter school that required space due to an expansion of grade level was entitled to facilities under Education Law §2853(3)(e) for those grades newly provided (Appeal of Brooklyn Urban Garden Charter School, 54 Ed Dept Rep, Decision No. 16,699; Appeal of Global Community Charter School, 54 id., Decision No. 16,694; Appeal of Great Oaks Charter School, 54 id., Decision No. 16,692), on the record before me, I find that petitioner’s need for additional space is due to the enrollment of more students (within the limits of the 500 students it is currently authorized to serve) into its existing grade levels, rather than to an expansion of grade level or newly provided grades, as contemplated by the statute.

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 not carried its burden of establishing the facts and law upon which it seeks relief.

Petitioner argues that current “space limitations have severely limited the ability of the school to effectuate the grade level expansions originally planned and approved” by its charter entity and argues that it is entitled to co-located space because it “required additional space to expand sufficiently to meet the expansion provided for by the Board of Regents.”  I disagree with petitioner’s characterization of its growth as a “grade level expansion.”  The record indicates that petitioner’s charter agreement authorized the operation of a school serving 500 transfer students in grades nine through twelve beginning in the 2012-2013 school year.  The record further indicates that petitioner did in fact begin serving students in each of grades nine through twelve in the 2012-2013 school year.  Accordingly, on this record, I cannot conclude that petitioner requires additional space “due to an expansion of grade level… approved by their charter entity for the [2014-2015] school year or thereafter…” (Education Law §2853[3][e]).

Therefore, as petitioner has not demonstrated that it is a charter school that requires additional space due to an expansion of grade level, petitioner has not carried its burden in this matter.  As such, the appeal must be dismissed.

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

THE APPEAL IS DISMISSED.

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