Appeal of NEW VISIONS CHARTER SCHOOLS, on behalf of NEW VISIONS CHARTER HIGH SCHOOL FOR THE HUMANITIES IV, and NEW VISIONS CHARTER HIGH SCHOOL FOR THE HUMANITIES IV from action of the New York City Department of Education regarding school utilization.

Decision No. 16,726

(March 25, 2015)

Bond, Schoeneck & King, PLLC, attorneys for petitioners, Marion C. Katzive, Esq., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Agnetha E. Jacob, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioners, New Visions Charter Schools (“NVCS”) and New Visions Charter High School for the Humanities IV (“HUM IV” or “the school”), challenge the New York City Department of Education’s (“DOE” or “respondent”) failure to offer HUM IV 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 the school, as required by Education Law §2853(3)(e).  The appeal must be sustained in part.

NVCS is an education corporation authorized by the Board of Regents.  On November 5, 2012, the Board of Regents issued a provisional charter, for a term of five years in accordance with Education Law §2851(2)(p), to NVCS for the purpose of operating charter schools pursuant to Article 56 of the Education Law and in accordance with charter agreements approved by the Board of Regents.[1]  Also on November 5, 2012, the Board of Regents approved and issued a charter for HUM IV.  Subsequently, the Board of Regents entered into a charter agreement with NVCS pursuant to which NVCS would establish and operate HUM IV.

HUM IV is approved to serve grades 9 through 12 in Community School District (“CSD”) 13, 14, 16, 17, 18 or 19.  It is scheduled to commence instruction in the 2015-2016 school year[2] serving students in ninth grade and will grow each year until it serves students in grades 9 through 12.

By letter to DOE dated August 25, 2014, HUM IV requested co-location in a public school building in accordance with Education Law §2853(3)(e).  In a separate letter also dated August 25, 2014, New Visions Charter High School for Advanced Math and Science IV (“AMS IV”), another charter school operated by NVCS, submitted a written request to DOE seeking co-location in a public school building in accordance with Education Law §2853(3)(e).

By letter dated August 28, 2014, DOE acknowledged HUM IV’s and AMS IV’s August 25, 2014 letters requesting space and stated that the letters had been forwarded to “staff members within the New York City Department of Education’s Office of Charter School Accountability and Support for review and appropriate action.”  By letter dated February 11, 2015 to New Visions for Public Schools, the charter management organization managing HUM IV and AMS IV, DOE acknowledged the request for space for two schools in 2015, but stated that it “is committed to working with your organization and the community to identify appropriate space for grades nine through twelve for one new New Visions school beginning in the 2015-2016 school year” (emphasis added).  It further indicated that “in the weeks and months ahead [it] will conduct the public review and comment process for one new New Visions Charter High School that is required by NY Education Law §§2853(3)(a-3), 2590-g and 2590-h(2-a) in order to obtain the required approval by the Panel for Educational Policy for any proposed co-location” (emphasis added).  This appeal ensued.[3]

Petitioners assert that DOE failed to respond to HUM IV’s request for co-located space as required by Education Law §2853(3)(e)(1).  Petitioners seek an order requiring DOE to provide rental assistance pursuant to Education Law §2853(3)(e)(5) and an order directing DOE to “continue its search for co-location space in a public school building or other public or private facility, and, if space is identified, take all steps necessary to complete the public review and comment process” and to make such space available for HUM IV for the 2015-2016 school year.

Respondent requests that the appeal be dismissed.[4]

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).

Petitioners assert that DOE failed to offer an approved co-location space or space in a privately owned or other publicly owned facility at no cost to the school, within the statutorily prescribed five-month period in violation of Education Law §2853(3)(e).[5]  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 DOE failed to respond to HUM IV’s request for space within the statutorily prescribed five-month period with an offer of either co-location space in a public school building or space in a privately owned or other publicly owned facility at no cost to the school.  Specifically, DOE did not respond to HUM IV’s August 25, 2014 request for space until February 11, 2015, beyond the five-month time period.  In addition, in its February 11, 2015 letter, DOE offered to conduct the public review and comment process required for any proposed co-location for “one New Visions Charter High School.”  However, pursuant to Education Law §2853(3)(e)(1)(A), DOE shall offer a co-location site in a public school building approved by the board of education as provided by law.  As DOE did not offer HUM IV an approved co-located space 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 school within the statutorily prescribed time period, 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 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), petitioners have carried their burden of establishing the facts and law upon which they seek relief.

In accordance with Education Law §2853(3)(e)(5), DOE is therefore required to pay rental assistance based on student enrollment in all grades for which HUM IV has been approved to provide instruction during the term of its charter (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).  I note that Education Law §2853(3)(e)(5) provides for rental assistance based on current school year enrollment, not the enrollment projections set forth in the charter, for each year of the charter term.  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 HUM IV will first commence instruction in the 2015–2016 school year with an estimated enrollment of 125 students in ninth grade.  Accordingly, pursuant to Education Law §2853(3)(e)(5), DOE must pay HUM IV in each year of the charter the lesser of the actual rental cost of an alternative privately owned site selected by HUM IV or 20 percent of the product of HUM IV’s basic tuition for the current school year (e.g., the 2015-2016 school year in the first year) and HUM IV’s enrollment for the current school year (e.g., the 2015-2016 school year in the first year).  As noted above, 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 (Appeal of Rosalyn Yalow Charter School, 54 Ed Dept Rep, Decision No. 16,690).

In this instance, petitioners also have not been afforded the opportunity to select an alternative privately owned site, and respondent must afford the school an opportunity to do so.  Petitioners 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 less than the amount computed pursuant to Education Law §2853(3)(e)(5)(B).

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

In light of this disposition, I need not consider petitioners’ remaining contentions.

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 HUM IV the lesser of the actual rental cost of an alternative privately owned site selected by HUM IV or 20 percent of the product of HUM IV’s basic tuition for the current school year and HUM IV’s current year enrollment.

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