Appeal of CENTRAL QUEENS ACADEMY CHARTER SCHOOL from action of the New York City Department of Education regarding school utilization.

         Decision No. 16,740

          (April 13, 2015)

Arnold & Porter LLP, attorneys for petitioner, Bruce D. Saber and Ian Jay, Esqs., of counsel

Zachary W. Carter, Corporation Counsel, attorney for respondent, Omar Tuffaha, Esq., of counsel

BERLIN, Acting Commissioner.--Petitioner, Central Queens Academy Charter School (“CQA” 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 currently located in private space in Community School District (“CSD”) 24.  Its provisional charter was issued in 2011 for a five year term in accordance with Education Law §§2851(2)(p) and 2853(1)(a).[1]

Petitioner is authorized to serve students in fifth through eighth grades.  When it opened for instruction in the 2012-2013 school year, petitioner served students in fifth grade; it added sixth grade in the 2013-2014 school year.  In the 2014-2015 school year, petitioner added seventh grade and will add eighth grade in the 2015-2016 school year.  According to petitioner’s executive director, the school intends to seek approval from its charter entity, the Board of Trustees of the State University of New York (“SUNY”), to amend its charter to serve grades 9 through 12 in conjunction with seeking a renewal of its charter, which process is scheduled to begin in the 2015-2016 school year.

By letter to DOE dated September 19, 2014, petitioner requested co-location in a public school building pursuant to Education Law §2853(3)(e) for its expansion to grades eight and nine starting in the 2015-2016 school year.[2]  In its letter, petitioner indicated that it had “discussed with SUNY ... a desire and intention to [expand or serve] grade 9 ... in 2015.”  According to petitioner’s executive director, the school intends to serve grade nine as soon after approval as possible.  By letter dated January 16, 2015, petitioner requested co-location and/or rental assistance pursuant to Education Law §2853(3)(e) for its current grade seven, “newly served in the 2014-2015 school year.”[3]  By letter dated February 13, 2015, DOE responded to petitioner’s September 19, 2014 and January 16, 2015 requests, indicating that it would “not be extending an offer of space at this time.”  This appeal ensued.

Petitioner asserts that DOE failed to offer it facilities in violation of Education Law §2853(3)(e) and that such failure was arbitrary and capricious.  As relief, it seeks an order directing DOE to pay rental assistance in accordance with Education Law §2853(3)(e)(5).

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 offer it a co-location space in a public school facility or space in another public or private facility at no cost to petitioner, in violation of Education Law §2853(3)(e).  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 approved by their charter entity 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]).

Here, petitioner made written requests for co-location space in a public school building on September 19, 2014 and January 16, 2015.  Specifically, in its September 19, 2014 letter, petitioner requested space for its eighth grade.  It also requested space for a proposed ninth grade, which it intends to serve as soon after approval from SUNY as possible.  In its January 16, 2015 letter, petitioner requested space for its seventh grade beginning in the 2014-2015 school year.  The record indicates that in its February 13, 2015 response, DOE stated that it would “not be extending an offer of space at this time.”

With respect to petitioner’s request for space for its intended ninth grade expansion, the record indicates that petitioner has been approved by its charter entity to serve grades five through eight. It has not been approved by its charter entity to serve students in ninth grade.  As petitioner has not been approved by its charter entity to expand to serve ninth grade, petitioner has not yet met the requirements of Education Law §2853(3)(e) and DOE was therefore not required to comply with the requirements of Education Law §2853(3)(e) with respect to petitioner’s proposed ninth grade expansion.

However, with respect to petitioner’s requests for space for its seventh grade and eighth grade expansions, which have been approved by its charter entity, 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 in its February 13, 2015 response 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 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 carried its burden of establishing the facts and law upon which it seeks relief with respect to its approved seventh and eighth grade expansions.

The record in this case indicates that petitioner was approved by its charter entity to serve students in grades five through eight when it was initially chartered in 2011, and that it served students in grades five and six prior to the 2014-2015 school year.  Thereafter, in the 2014-2015 school year, petitioner expanded to serve students in seventh grade, for which it required additional space.  Therefore, on the record before me, I find that petitioner has established that it requires additional space due to an expansion of grade level in the 2014-2015 school year that was approved by its charter entity, albeit initially in a charter action that occurred prior to the enactment of Education Law §2853(3)(e).  There being no language in the statute limiting its applicability to expansions of grade level approved by a charter entity on or after the effective date of Education Law §2853(3)(e), I find that petitioner has met all the statutory criteria and is entitled either to a co-location or to an offer of private or other publicly owned space.

Accordingly, having failed to make such an offer, DOE must, pursuant to Education Law §2853(3)(e)(5), pay petitioner in each remaining year of the charter term, commencing with the 2014-2015 school year, rental assistance based on student enrollment in any newly added grade level(s) for which petitioner has been approved to provide instruction.  Specifically, with respect to an existing charter school whose expansion of grade level is approved by its charter entity 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 grade level expansion ... 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 ... (ii) for a charter school which expands its grade level, pursuant to this article, before [October 1, 2016], the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion” (Education Law §2853[3][e][5]).

Therefore, pursuant to Education Law §2853(3)(e)(5), DOE must pay petitioner, for newly added grades for which petitioner has been approved to provide instruction commencing with the 2014-2015 school year and for each remaining year of the current charter term, the lesser of the actual rental cost of an alternative privately owned site selected by petitioner or 20 percent of the product of the charter school’s basic tuition for the current school year and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion (see Appeal of Global Community Charter School, 54 Ed Dept Rep, Decision No. 16,694).  As noted above, commencing with the 2014-2015 school year, DOE is obligated to pay for the facilities for the charter school’s grade level expansion in each remaining year of the current charter term.

In this instance, petitioner also has not been afforded the opportunity to 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 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 an amount attributable to the grade level expansion that is 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 and the positive difference of the charter school’s enrollment in the current school year minus the charter school’s enrollment in the school year prior to the first year of the expansion.

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